People v. Waugh

SHAW, J.

Defendant was convicted of the crime of robbery. From the judgment pronounced against him, and an order of court denying his motion for a new trial, he prosecutes this appeal.

Assignments of error are predicated upon the alleged insufficiency of the evidence to justify the verdict, the refusal of the court to give certain instructions requested by defendant, and alleged misconduct of the district attorney in referring to defendant’s failure to testify in his own behalf.

As to the first contention, the extent of appellant’s argument in support thereof is the mere assertion that “there is no evidence in the record that proves or tends to prove by direct testimony, substantial evidence or otherwise, that the defendant and appellant was in the vicinity or near the place of the alleged robbery.” The victim of the robbery was Elizabeth Sarah Rae who, in company with another, about midnight on July 31, 1915, was traveling in an automobile

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along the strand from Coronado to the mainland, when they were intercepted by two men who compelled them to get out of the car, at which time certain diamonds and jewelry in the possession of Mrs. Rae were forcibly taken from her. While there was no direct evidence identifying defendant as one of the participants in the crime, much circumstantial evidence was adduced which, together with the unexplained possession by defendant of the stolen goods near the place where the crime was committed and shortly thereafter, clearly tended to connect him with the robbery and justified the jury in reaching a verdict that he was guilty as charged; indeed, as stated, counsel for appellant does not otherwise seriously contend.

Defendant requested the court to instruct the jury in substance that if they believed from the evidence that defendant had, in the past, been leading a wild and immoral life, and had been guilty of acts which they deemed to be immoral or unlawful, or had an unsavory reputation, such facts should not be considered by them in determining the question of defendant’s guilt or innocence of the crime charged, but that the same degree of proof was required to establish his guilt as that required to establish the guilt of any other person charged with a similar offense. The court refused to give such instructions, and the ruling is assigned as error. No issue was made as to the past life, character, or reputation of defendant, and no evidence was offered touching the subject. True, a witness called on behalf of the people, when testifying to his association with defendant in Tia Juana, Mexico, incidentally referred to the fact that they went out together and hunted for some opium, and on cross-examination he stated that defendant informed him that the opium had been hidden near Tia Juana Hot Springs and which, if found, he could sell to a Chinaman at Tia Juana; but this in nowise justified the giving of such instructions. Moreover, under the instructions given by the court clearly stating to the jury the facts which they were to consider in arriving at a verdict, and conceding the requested instructions proper, it is inconceivable that the failure to give them could in anywise have influenced the jury in its consideration of the case or affected the substantial rights of defendant.