[Crim. No. 100. Third Appellate District.—October 22, 1909.]

THE PEOPLE, Respondent, v. WILLIAM A. PINER, Appellant.

CRIMINAL LAW-PLEADING JOINDER OF OFFENSES RELATING TO ONE TRANSACTION-VALIDITY OF CODE AMENDMENT.-The amendment in 1905 of section 954 of the Penal Code, so as to provide that "the indictment or information may charge different offenses, or different statements of the same offense, under separate counts, but they must all relate to the same act, transaction, or event," is valid and effective, and not subject to any constitutional objection. ID.-SUBSTANTIAL RIGHTS OF DEFENDANT SAFEGUARDED-JOINDER OF DISTINCT OFFENSES DISALLOWED.-The legislature, while recogniz. ing that there is no danger of violating any substantial rights from permitting two different offenses arising from exactly the same particular circumstances, "act, transaction or event," to be joined, yet safeguarded the substantial rights of the defendant by providing expressly that "charges of offenses occurring at different and distinct times and places must not be joined."

ID.-CODE AMENDMENT HARMONIOUS WITH OTHER CODE PROVISIONS.There is no distinction in principle between the code amendment authorizing the charging of two different offenses relating to the same act or event, and other code provisions authorizing the jury to find a verdict for a less crime included within a greater offense charged. ID.-BENEFICIAL EFFECT OF METHOD ALLOWED.-The method allowed by the amendment, while harmless to the rights of the accused, must result in a just administration of the criminal law. It permits the jury, under the court's instructions, to return a verdict of guilty of that one of the two offenses charged which the evidence discloses had been committed, thus avoiding, in large measure, the mistrials which have too often resulted from a disagreement between the proof and the allegations of the indictment or information.

ID. INFORMATION CHARGING BURGLARY WITH INTENT TO COMMIT LARCENY AND GRAND LARCENY-DEMURRER PROPERLY OVERRULED.-An information charging burglary with intent to commit larceny at a time and place specified, and charging grand larceny committed at the same time and place "as a part of the same act, transaction or event" in a distinct count, conforms to the amendment of section 954 of the Penal Code, and a demurrer thereto for the misjoinder of two distinct offenses was properly overruled.

ID. OFFENSES CHARGED REQUIRING THE SAME PROOF.-The offenses thus charged required for their proof the same quality of testimony and the same manner of trial and punishment. Though the crime of

burglary may involve an intent to commit any of the crimes mentioned in section 459 of the Penal Code, yet it will not be denied that proof that a larceny or felony had been committed in the building by the party making the entry would be competent not alone for showing the intent, but also the fact of the entry. ID.-MOTION TO SET ASIDE INFORMATION-POINT OF DEMURRER INVOLVED.-A motion to set aside the information on the ground that defendant had not been committed by a magistrate for either of the offenses charged, involving the same point raised upon the demurrer, was properly denied. The defendant had a preliminary examination on both charges, since the facts necessarily applied to both offenses. ID.-EVIDENCE-VOLUNTARY CONFESSION OF GRAND LARCENY TO SUSPECTED RELATIVE PROMISE OF ENDEAVOR TO PROTECT DEFENDANT.— A voluntary confession by defendant of the commission of the grand larceny charged in the information, not made for the purpose of being used in evidence against him, but made to a relative, not an officer of the law, who was also suspected of the crime, who held out to the defendant nothing beyond the hope that such relative would endeavor to keep defendant's connection with the crime from becoming known to the authorities, was properly admitted in evidence against the defendant.

ID. EVIDENCE OF GOOD CHARACTER-INSTRUCTION AS TO

CAUTION

HARMLESS ERROR.-Evidence of good character of the defendant is in aid of the presumption of innocence, and is no more to be laid out of view by the jury in their deliberations than is the presump. tion itself. Yet such evidence is important only where there may exist some doubt of the defendant's crime. An instruction that such evidence should be received "with great caution" was erroneous; but in view of the conclusive evidence of defendant's guilt, the error was harmless, since the jury could, consistently with their verdict, have found that defendant's good character was conclusively shown. ID. GENERAL CAUTION OF JURY-SPECIAL CAUTION BEYOND PROVINCE OF COURT.-As matter of fact, all evidence in a criminal case should be considered by the jury with caution or that deliberation which will insure a just verdict. But to select a particular species of evidence for special caution to the jury, thus disparaging the probative effect thereof, is a function specially excluded from the province of trial courts, even in those few special cases where the legis lature has declared that it may be done.

ID. INSTRUCTION AS TO CONFESSION-MATTER NOT FOR JURY-HARMLESS ERROR.-An instruction that "a person's declaration or voluntary confession is always admitted in evidence against him, for the law presumes that a person will not say anything untrue against himself or his interests," is erroneous, as presenting matter not for the consideration of the jury. But the error in giving it was harmless, where there is no denial that the confession was made, and

no attempt was made to impeach the witness who testified thereto, and there was uncontradicted evidence of the defendant's guilt.

APPEAL from a judgment of the Superior Court of Lake County, and from an order denying a new trial. M. S. Sayre, Judge.

The facts are stated in the opinion of the court.

T. J. Geary, and Bond & Churchill, for Appellant.

U. S. Webb, Attorney General, and J. Charles Jones, for Respondent.

HART, J.-The defendant, having been convicted of the crime of grand larceny, brings the cause to this court on an appeal from the judgment and from the order refusing to grant his motion for a new trial.

The appellant claims a reversal for these reasons: 1. That the demurrer to the information should have been sustained because there are set out in the accusatory pleading two separate and distinct offenses; 2. That the court erred to his prejudice in allowing, over his objections, the testimony of the witness Robinson purporting to give a confession of guilt by the defendant, the specific contention upon this point being that said alleged confession was not voluntarily made, and, therefore, in law, was no confession at all; 3. That the court committed prejudicial error in giving certain instructions to the jury.

1. The information, in the first count thereof, charges the defendant with the crime of burglary, alleging that on the twenty-third day of August, 1908, he burglariously entered the store of one P. Q. Robison, at Kelseyville, Lake county, with the intent, etc.

The second count of the information charges the crime of grand larceny in the following language: "The said William A. Piner, as a part of the same act, transaction or event, alleged in the first count of this information, aforesaid, on the twenty-third day of August, one thousand nine hundred and eight, at the said county of Lake, and before the filing of this information, willfully, unlawfully and feloniously did take, steal, and carry away from the aforesaid store of P. Q. Robison, aforesaid, twenty-five twenty-dollar gold pieces, of the

gold coin of the United States of America, the personal property of one Matt L. Rowden, of the value of five hundred dollars, lawful money of the United States; contrary to the form," etc.

The contention of the appellant is, as before suggested, that two distinct offenses cannot properly be charged in an indictment or information, and that, as two distinct offenses are charged in the information upon which the defendant was tried and convicted, the court erred in its order overruling the demurrer.

The attorney general insists that the information conforms to the provisions of section 954 of the Penal Code, as amended by the legislature of 1905, [Stats. 1905, p. 772], and that the demurrer was, therefore, properly overruled.

The section of the Penal Code just mentioned reads: "The indictment or information may charge different offenses, or different statements of the same offense, under separate counts, but they must all relate to the same act, transaction, or event, and charges of offenses occurring at different and distinct times and places must not be joined. The prosecution is not required to elect between the different offenses or counts set forth in the indictment or information, but the defendant can be convicted of but one of the offenses charged, and the same must be stated in the verdict.”

So far as we are advised to the contrary, this is the first occasion on which the foregoing section, in its amended form, has been before any of the reviewing courts.

Prior to its amendment by the legislature of 1905, the section read: "The indictment or information must charge but one offense, but the same offense may be set forth in different forms under different counts," etc. From a comparison of the section as it formerly read with the section as, under the amendment, it now reads, it would seem to be very clear that there has been practically no material change effected by the amendment except in that part of it authorizing the charging of different offenses in the same indictment or information where such offenses "relate to the same act, transaction or event." The other provisions of the section merely authorize, in perhaps a little different language, what the old section declared could be done, or, in other words, are only a reenactment of the old section with some immaterial verbal changes.

11 Cal. App.-35

We can perceive no reason for holding that the legislature did not mean exactly what the language of the section very plainly and unambiguously declares. That it was intended, by the amendment, to authorize the statement in an indictment or information of two or more distinct offenses, where the same grow out of precisely the same act, transaction or event, is a proposition which we think admits of no possible room for debate. If the language of the section with regard to this proposition were not itself so clear and unquestionable as that it would require the aid of construction in order to gather its true meaning, there would be no necessity for going further than that part of the section itself wherein it is expressly provided that "charges of offenses occurring at different and distinct times and places must not be joined."

It will thus be observed that the legislature, while recognizing the fact that no danger of violating any of the substantial rights of an accused person could result from charging in an indictment or information two different offenses which have arisen from exactly the same particular circumstancesthat is, from the same act, transaction or event-was careful to protect and safeguard such person against the harm which would inevitably follow the charging of two different offenses occurring at different times and places, and which, in the very nature of things, could have no possible bearing upon or relation to each other whatever.

We can discern no distinction in principle between the provision authorizing the charging of two different offenses relating to the same act or event and those provisions of our criminal law which authorize a jury in a case where the offense charged embraces more than one crime-as, for instance, the crime of murder, within which is included manslaughter, or robbery, within which is included larceny, or assault with intent to murder, within which is included assault with a deadly weapon and often simple assault-to return a verdict of guilty of any one of the offenses comprehended within the one charged which the evidence justifies or warrants.

There is no claim put forward here that section 954 of the Penal Code, as amended in 1905, violates any provision of the constitution, nor can we see how such a claim could be sustained if it were urged. As we have suggested, there is no ground for apprehending that any injury would result to a