People v. Garnett

California Supreme Court Jul 1, 1866Published

Before: Sanderson, Sawyer, Shafter

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Holding. The court held that larceny is not a lesser-included offense of burglary and that the trial court erred by sua sponte recalling the jury to introduce the theory of larceny after the case had been submitted to them, thereby prejudicing the defendant.

Issues

Whether the trial court erred in refusing to exclude a witness from the courtroom.
Whether the trial court erred in refusing to discharge the defendant at the close of the prosecution's case.
Whether the trial court erred in recalling the jury to instruct them on a new theory of larceny after the case had been submitted.
Whether larceny is an offense necessarily included in the charge of burglary.

Disposition. reversed

Quotations verified verbatim against the opinion

“Larceny is not necessarily included in burglary, like manslaughter in murder, within the sense of the statute; on the contrary it is no part of it.”

“That so sudden a shifting of the issue, without time for further argument, might operate to the legal prejudice of the defendant, does not admit of doubt.”

Synopsis

Exclusion of Witnesses during a Trial.—The exclusion of the witnesses on the part of the prosecution, on the motion of the defendant, in a criminal action, is not a matter of absolute right, but rests in the discretion of the Court.

Testimony of an Accomplice in a Criminal Case.—Where the prosecution rely on the testimony of an accomplice, jointly indicted with the defendant, the defendant should not be discharged at the close of the testimony for the prosecution, if the accomplice's testimony has been corroborated in some particulars.

Impeachment of Witness.—A witness cannot be impeached by proof that he has made statements out* of Court contrary to what he has testified to on the trial, unless the witness was asked as to the statements made out of Court, and the time when, place where, and person to whom made.

Burglary mixed with Larceny.—Our criminal code describes no such offense as burglary mixed with larceny or another felony.

Indictment charging Two Offenses.—Under our criminal code, an indictment which charges a burglary mixed with a larceny, charges two offenses. If in connection with a burglary another offense has been committed, it must be made the foundation of a separate indictment.

Same.—If the indictment charges two offenses, the objection is waived unless it is taken by demurrer.

Trial where Indictment charges Burglary mixed with Larceny.—If the indictment charges a burglary mixed with a larceny, and no demurrer is interposed, and the case is conducted upon the theory that the defendant is on trial for burglary alone, the Court cannot, after the case is submitted and the jury have retired, change the issue by instructing the jury that they may find the defendant guilty of grand larceny.

Larceny is not Included in Burglary.—Larceny, if committed at the same time a burglary is committed, is not included in the burglary, as manslaughter in murder; the larceny is no part of the burglary.

Opinion — Sanderson

By the Court, Sanderson, J. The Court did not err in refusing to exclude the Chief of Police with the other witnesses. The exclusion of witnesses on the part of the prosecution, on the motion of the defendant, is not a matter of absolute right in all cases, but rests very much in the discretion of the Court, which may be exercised in favor of the defendant’s application or not, according to the circumstances of the case. (1 Greenleaf on Ev., Sec. 432.)

Nor did the Court err in refusing to discharge the defendant at the close of the testimony for the prosecution. The testimony of the accomplice was corroborated by other evidence in regard to several particulars, which at least tended to connect the defendant with the commission of the offense charged.

Nor did the Court err in sustaining the objection of the District Attorney to the testimony of the witness Bruce offered for the purpose of impeaching the testimony of Burke. The proper foundation for the admission of such testimony had not been laid. (1 Greenleaf on Ev., Sec. 462.)

Indictment for burglary.

The indictment would have been bad on demurrer had one been interposed, upon the ground that it contains two separate offenses: 1—burglary; and 2—grand larceny. At common law there are two kinds of burglary: 1—Complicated [626]and mixed with another felony; and 2—simple burglary ; for which different punishments were inflicted. (1 Hale’s Pleas of the Crown, 549.) Hence at common law an indictment for the first necessarily comprised two offenses—burglary and such other felony as may have been committed in connection therewith—and the defendant could be acquitted of the burglary if the case was so upon the evidence, and found guilty of the other felony only (Id. 559.) Our criminal code, however, describes no such offense as burglary complicated and mixed with another felony. It describes simple burglary only. Hence under our practice burglary cannot, more than any other offense, be united in the same indictment with another offense. If in addition to the burglary, another offense has been committed, it must be made the foundation of a separate indictment. When, however, both offenses are stated in the same indictment, the objection must be taken by demurrer, or it will be deemed waived, and a verdict of guilty of either offense will not be disturbed on that ground. In the present case the objection was not taken by demurrer, but on motion in arrest of judgment, which was too late, as we held in Shotwell's Case, (27 Cal. 394.)

People v. Garnett

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Synopsis

Opinion — Sanderson

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Concurrence — Sawyershafter

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