[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 235 In this action the defendant presents three appeals: 1. An appeal from an order made and entered on the second day of February, 1931, denying appellant's motion for a new trial; 2. An appeal from an order made and entered on the tenth day of February, 1931, placing appellant upon probation for a period of five years, suspending imposition of judgment and sentence, and ordering appellant confined in the county jail of Los Angeles County for a period of eighteen months; 3. An appeal from an order made and entered on the twenty-fourth day of February, 1931, denying appellant's motion for a new trial made upon the ground that judgment had not been pronounced within the statutory period prescribed by section 1191 of the Penal Code.
By indictment the defendant was charged in thirty-seven counts with the crime of grand theft. To each count the defendant pleaded not guilty. Two counts were dismissed at the trial, and on thirty-four counts the defendant was found not guilty. On count seven, wherein defendant was charged with the theft of $825, the defendant was found guilty. The verdict was returned and duly entered in the minutes of the court on the twenty-third day of January, 1931, and the pronouncing of judgment as to count seven was set for January 26th. At this time the defendant presented a motion for a new trial, and hearing on said motion and the pronouncing of judgment were continued to February 2d. On February 2d the motion for new trial was denied, and the defendant applied for probation. The *Page 236 passing on said application for probation and the pronouncing of judgment were thereupon set for February 10th. On February 10th defendant made application for permission to withdraw her application for probation. Permission to withdraw application for probation was denied, a probation report was filed, and the court ordered "that proceedings as to count 7 of the indictment be suspended and said defendant granted probation for a period of five years under the following conditions: the first eighteen months of said probation period, defendant shall remain in the county jail. Defendant shall report to probation officer and follow his instructions."
On February 11th the defendant filed a notice of appeal "from the order and judgment of the court made and entered in the above-entitled cause on the 10th day of February, 1931, placing said defendant on probation for a period of five years and ordering that she be confined in the county jail of Los Angeles county for a period of eighteen months."
On February 4, 1931, the defendant filed a written notice of appeal "from the order of the above-entitled court made and entered on the 2nd day of February, 1931, denying her motion for a new trial of the above-entitled cause, which motion was made by defendant in open court on the 26th day of January, 1931."
[1] Some phases of the case in relation to said probation order were brought to the attention of this court in June, 1931, upon an application of appellant for a writ of habeas corpus, at which time the petitioner was remanded to custody. (Matter ofDe Voe, 114 Cal.App. 730 [300 P. 874].) In that case the record of the proceedings of the court upon the application of defendant to be admitted to probation and her subsequent attempted withdrawal of that application, was the same as the record of the same transactions as shown in this appeal. As was indicated in the decision in said habeas corpus case, we are satisfied that the trial court, in the exercise of its discretion, was justified in making its order by which the request of the defendant to withdraw her application for probation was denied; that the subsequent action of the trial court in granting probation to the defendant must be considered solely as the result of her own application directed to that end; and that *Page 237 the said application for probation constituted a waiver of the defendant's right to have judgment pronounced prior to the making of an order granting to her the probation which she sought. It follows that the appeal of defendant from the order placing her on probation for a period of five years and ordering that she be confined in the county jail of Los Angeles County for a period of eighteen months, is without merit. [2] This leads to the further consequence that the appeal of the defendant from the order entered on the twenty-fourth day of February, 1931, denying her motion for a new trial upon the ground that judgment had not been pronounced within the statutory period prescribed in section1191 of the Penal Code, is without merit.
There remains for consideration the appeal of defendant from the order made on February 2, 1931, denying her motion for a new trial. Appellant admits that the evidence is sufficient to support the verdict. She contends, however, that there was other evidence amply sufficient to have justified a verdict of acquittal if the jury had so found. And she contends that the errors in the trial, of which she complains, were more prejudicial to her than such errors might be in a case where the evidence unquestionably establishes the guilt of a defendant. The questions before us, therefore, cover the errors assigned and also the probable effect of such errors as may have been committed.
[3] First we have a series of rulings whereby the court permitted the introduction of evidence to prove misappropriation by defendant of funds and other property of the complaining witness, other than those included in the charges of the indictment. (App. Opening Brief, pp. 21 to 75.) We are of the opinion that the court did not err in allowing the introduction of this evidence. Appellant had been the employee, in a confidential position, of the complaining witness. On leaving this employment appellant had taken away sundry items of her employer's property. This included checks, check-books, letters, jewelry, etc. When the check-books were taken from defendant, some of the checks which had been issued, as shown by the check-stubs, and which had been paid, were missing, and in connection with some of the accusations in this case it became necessary to trace the missing checks. In some instances (as in the one *Page 238 upon which conviction was obtained) there was evidence that the employer had signed the check in blank and left it with the defendant to be filled out in accordance with given instructions. It was necessary, therefore, to ascertain first whether defendant violated the employer's instructions and appropriated the money to use different from the instructions, and second, whether the misapplication was accomplished with criminal intent. It was for the purpose of proving the existence of a criminal intention and plan of defendant in relation to her employer's affairs that the evidence now in question was admitted.
[4] Appellant contends that the court erred in refusing to permit her to give testimony by way of explanation of some of the facts relating to the above-mentioned transactions. Apparently these rulings related to improper forms of questions, and irrelevancies in answers given. The defendant was not prevented from producing such evidence as was appropriate to the matters under investigation.
[5] Another assignment of error: That the trial court erred in permitting the prosecution to cross-examine appellant with reference to certain testimony given by her before the grand jury, and with reference to appellant's refusal to answer certain questions before that body upon the ground that they might tend to incriminate her. It does not appear that in the trial court any objection was made to this cross-examination. It is suggested by respondent that the questions were appropriate under the provisions of section 926 of the Penal Code. At any rate, on this record, the matter should not be considered. Present counsel for defendant, it may be noted, was not her attorney at the trial of the action.
[6] Misconduct of the court, in making certain comments about the progress of the trial, is now charged by appellant, although no such complaint was made in the trial court. We think that the point is without merit.
[7] The defendant asked the trial court to instruct the jury as follows: "If the evidence relating to any circumstance in this case is, in view of the evidence, susceptible of two interpretations, one of which would point to defendant's guilt, and the other would admit of her innocence, then, it is your duty in considering such evidence, *Page 239 to adopt that interpretation which will admit of the defendant's innocence and reject that which would point to her guilt." It is contended by appellant that the court erred in refusing this instruction.
The proposed instruction correctly states the law, and should be given whenever proof of some essential fact is necessary to sustain a verdict against the defendant, and the proof of such fact depends upon circumstantial evidence. (People v.McClain, 115 Cal.App. 505 [1 P.2d 1085].) But where the prosecution relies for conviction upon direct evidence, the circumstantial evidence, if any, being merely incidental to and corroborative of the direct evidence, an instruction on the law of circumstantial evidence need not be given. (8 Cal. Jur., p. 369; People v. Lapara, 181 Cal. 66 [183 P. 545].) In the present case, since appellant was convicted on only one count, the assignment of error must be tested by that count only, and the evidence in relation thereto. The principal evidence in relation to that count consists of the testimony of the complaining witness, and that of the defendant. In harmony with the decisions above cited, it appears to be a reasonable conclusion that the court did not err in refusing the requested instruction.
[8] Defendant moved for a new trial, basing her motion upon all of the statutory grounds for such motions. One of these is, that the verdict of guilty rendered by the jury was decided by lot. Appellant, claiming that the jurors had refused to make affidavits as to whether or not the verdict had been arrived at by lot and chance, asked leave to examine the jurors in open court. This was permitted. Nevertheless, appellant now contends that the court erred in refusing to allow the witnesses to answer some of the questions put by appellant's counsel. The court's rulings were made in accord with its effort to confine the inquiry to the single subject of the inquiry, viz.: Was the verdict decided by lot or chance? The questions which the court ruled out were part of a line of inquiry well calculated to exceed the permitted limit of investigation into the deliberations and proceedings by which a jury arrives at a verdict. These questions called upon the witness to give information concerning matters connected with the proceedings of the jury, other than the single permissible inquiry relating to *Page 240 the conviction on count seven as (possibly) the result of a determination of the issue by chance or lot. This may not be done. (Whiting v. Squeglia, 70 Cal.App. 108, 118 [223 P. 986]; People v. Reid, 195 Cal. 249, 261 [36 A.L.R. 1435,232 P. 457].)
We have reached the conclusion that the order denying defendant's motion for a new trial is without error.
The orders from which defendant appeals are, and each of said orders is, affirmed.
York, J., concurred.