Peolple v. Warren
Before: Cooper
Synopsis
Criminal Law—Grand Larceny—Indictment—Description of Stolen Property—Certainty.—In an indictment for grand larceny, the description of the property stolen as “four calves, then and there the personal property of Anton Luchessa,” is sufficiently certain.
Id.—Continuance—Intoxication of Counsel—Contempt of Court— Preparation of Other Counsel—Discretion.—The counsel for the defendant cannot, by becoming intoxicated, and incurring a penalty for contempt, after impanelment of the jury, give to the defendant the right to an indefinite continuance of the case. It is in the discretion of the court to allow newly appointed associate counsel a reasonable time for preparation and to refuse a continuance; and where its action was not arbitrary, its discretion will not be interfered with upon appeal.
Id.—Trial—Call of Jury for Testimony—Verdict Before Time Fixed for Beading—Discretion of Court.—Upon .the request of the jury, while considering the cause, made to the court at 11 o’clock P. M., for the reading of the testimony of a witness for the defendant, which it would require two hours to read, the court did not abuse its discretion by fixing 9 o’clock of the next morning as the time for such reading, and adjourning court until that time; and where the jury, a few moments before the time fixed for the reading, announced their verdict of guilty, and adhered thereto after being polled, the court had discretion to receive their verdict, without the reading of the testimony called for.
Id.—Aiding and Abetting Crime—Instructions—Case of Error.—It is error to instruct the jury that one who aids or abets in the commission of a crime may be punished as a principal; but such error is cured by clear and explicit instructions that “all persons who aid and abet in the commission of a crime are principals,” and that “in every crime there must exist a union or joint operation of act and intent, or criminal negligence.” Under such instructions the jury could not be misled to believe that one who innocently aids in the commission of a crime may be found guilty.
COOPER, C.
Defendant was jointly indicted with one J. A. Warren, Jr., for grand larceny, and convicted. This appeal is from the judgment and an order denying a new trial. It is conceded that the evidence is sufficient to sustain the verdict.
Defendant contends that the indictment did not describe the property alleged to have been stolen with sufficient certainty. The description has been held sufficient in
People v. Warren, post,
p. 683, and upon the authority of that case the point is settled. Error is assigned in the refusal of the court to continue the case, during the trial, for the purpose of allowing defendant to employ other counsel. The facts, as shown in the record, are as follows: The trial commenced on Monday, April
2,
1900, and a jury was impaneled. At 1:30 P. M. of April 3d, at the opening of the afternoon session, Ernest Graves, who had up to that time been defendant’s sole attorney, came into court in an intoxicated condition, and, after some time taken up in attempt to proceed with the trial, it became apparent to the judge presiding that the defendant’s attorney was -so much under the influence of liquor that the business of the court could not proceed in regular order. The court thereupon admonished counsel, stating that counsel was evidently not in a condition to proceed with the trial, and, while the court was so speaking, counsel interrupted in an insolent and impudent manner, saying: “The allegations of the court are false.” Thereupon the court fin'ed the attorney fifty dollars for contempt of court, but suspended the execution of the fine until the conclusion of the trial, expressly stating that it was not the intention of the court to stop the proceedings of the trial. The court thereupon admonished the jury and adjourned until 3 o’clock P. M. of the same day. Just as the judge rose to leave the bench, the attorney, in a loud, violent, and offen
[680]
sive manner, applied to the judge an insulting epithet. The court then ordered the attorney into custody of the sheriff and made an order for him to show cause on the following day, April 4th, at 9 o’clock A. M., why he should not be punished for contempt. The case was then continued until April 4th, at 9 o’clock A. M., at which time the court imposed a further fine upon the attorney, and made an order committing him to jail for five days. The court thereupon sent for William Graves, the partner of Ernest Graves, who had been sent to jail, and appointed said William Graves as counsel for defendant. The said William Graves requested time to investigate the facts of the case, and the court thereupon continued the case until 1:30 P. M., and directed the reporter to read to said William Graves, if desired, all the proceedings in the case. Upon the calling of court at 1:30 P. M. William Graves made a motion for a continuance, upon his own affidavit and the affidavit of defendant, in which it was stated that William Graves was not familiar with the facts of the case, and could not safely proceed, and that he was pressed with other professional engagements. The court, after the motion for a continuance was argued and considered, remarked: “I would wish very much to b'e able to give the defendant an adjournment for some time if it were not for the fact that the jury has been impaneled and that there are a large number of witnesses here in attendance, and we are in the midst of the trial. Mr. Graves has pleaded other engagements—Mr. William Graves. I will not set aside the order I made yesterday. I will still let you stand as attorney of record, and I will appoint Mr. Palmer —Charles Palmer—as additional counsel for defendant. I will let this case stand over until to-morrow at half-past one P. M., at which time the defendant will be prepared to proceed. Mr. Eeporter, you will read for the counsel any of the testimony that has been taken in the proceeding, that they may be fully advised of the proceedings to date, whenever they desire it, between now and 1:30 P. M. to-morrow.” April 5th, at 1:30 P. M., Louis Lamy, an attorney at law, appeared at the request of William Graves, and with said Palmer acted as attorney for defendant. The said attorneys, Lamy and Palmer, renewed the motion for a continuance, which the court denied and ordered
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