18 P.2d 399 | Cal. Ct. App. | 1933
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *198 The defendant was convicted of the crime of assault by means of force likely to produce great bodily injury. This appeal is from the judgment upon the verdict and from an order of the court denying a motion for a new trial.
The evidence in support of the verdict is briefly and fairly epitomized in respondent's brief as follows:
"One Alexander Morgan was a fish peddler and on the morning of November 24, 1931, was proceeding from the city of Santa Cruz towards the city of Capitola . . . As he approached the residence of some Japanese people by the name of Kitahara he passed the appellant Blake, who was proceeding in the same direction in an automobile, accompanied by a woman by the name of Ann Thomas. Morgan drove into the driveway of the Kitahara residence and then backed out upon the main road. Blake, who had by this time come abreast of the driveway, signaled to Morgan to stop. Morgan backed his truck across the road to the opposite side. Blake meanwhile had stopped his car and walked over to Morgan's car and there engaged in conversation with him. The story of the prosecuting witness from this point to the time that he was struck down by the appellant . . . reads as follows: *199
"`Mr. Blake came over to me and he told me he had $500 on my head and that he wouldn't do anything himself because the position he was in, and everything, he couldn't — couldn't afford to; and I told him I was sorry to hear him say that because I hadn't had a chance to state my case before him, and everything; so he went on to ask me if I was afraid to face this, — no, first he asked me if I would back down the road where we could discuss this thing more clearly. I said "No, if you want to discuss it with me you can come into town and see my attorneys, Mr. Rittenhouse and Snyder"; and he said no, it wasn't necessary to do that, and wanted to know then if I would come across and talk to Mrs. Thomas, and I said I sure would, and he said "You are not afraid to go over there?" I said "No, I have got nothing to be afraid of — why should I be afraid?" When I went over there I was standing at the machine, Mr. Blake was standing at one side, partially in back of me. I started to talk to Mrs. Milang or Mrs. Thomas — Miss Thomas, and we were conversing back and forward, and the next thing I knew I was down on the ground. While I was lying on the ground I saw a dark object coming — that is the last I remember until I came to at the hospital. Q. Mr. Morgan, when you crossed the street with Mr. Blake Mrs. Thomas was in the car, was she? A. Yes sir. Q. Sitting in Mr. Blake's car? A. Yes sir.'
"In the vicinity of this point on the highway at which this assault took place there were three residences other than the Kitahara residence; the Christie residence, the Pimental residence and the Antonelli residence. From the vicinity of the Kitahara residence the two young girls of the Kitahara residence saw some of the details of the assault.
"Mary Kitahara testified that she saw the two automobiles coming down the road and saw Mr. Morgan drive into the driveway of her home and back out and also saw Mr. Blake get out of his car and go over to Morgan's car and there engage in a conversation with him. All this she saw from a window in the house. A few minutes later when she was out of the house she was attracted by a woman screaming and when she looked toward the automobile saw Blake kicking someone who was out on the ground.
"Little Alice Kitahara also stated that she was attracted by the screams of a woman and that when she looked *200 towards the spot from whence the screaming came she saw the appellant kicking someone who was on the ground. Both these girls testified that the woman who had done the screaming tried to pull the appellant away but was pushed back by the appellant, who proceeded to kick the man who was on the ground. Both these girls thereafter went up to the scene of the assault and saw Morgan lying on the ground.
"Mrs. Christie testified that she was cleaning a turkey in her kitchen and was attracted by the screaming of a woman and when looking out of the window in the direction from whence the screaming came she saw a man kicking another one who was on the ground . . . not only kicking him, but jumping up and down on his face. She further stated that the woman who evidently was the one who had screamed tried to push the appellant away, but in turn was pushed away herself, whereupon the appellant continued to kick the man who was on the ground." She further testified that she saw him jump on the man's chest.
"Mrs. Pimental, who was out at the chicken pens in the back of her residence stated that she was attracted by a woman screaming and that she came down the alley and that when she got to the corner of her house she still heard the screams and looking toward from whence they came she saw a man and woman standing, seeming to be kicking something that was on the ground.
"Two other witnesses were also attracted by the woman screaming, they being Eugene Mersaroli and his father-in-law, Mr. Antonelli. These two men were working on a new addition to the Antonelli residence and upon hearing the screaming looked towards the point from whence it came and both saw the appellant Blake kicking a man who was on the ground. They ran to the road and by that time the appellant Blake, having gotten into his car, had arrived almost abreast of them. Mr. Antonelli shouted to him to stop and when the appellant refused to do so he hurled a stone through the windshield of the appellant's car. However, the appellant did not stop but continued on his way.
"Several of the witnesses who heard the woman screaming stated that she exclaimed: `My God, you have killed him.' . . . *201
"Chas. C. Houck, a Justice of the Peace of the City of Santa Cruz, stated that at a time which would have been approximately immediately after the assault the appellant came into his office and stated that he had given a man whom he called Alec `a good trimming' and had `beaten him up', and he wanted to pay his fine immediately. . . .
"The defense attempted to show a situation contrary to that testified to by the prosecuting witness and attempted to show that the assault was started by the prosecuting witness, Morgan. The appellant himself stated that it was Morgan who had hailed him first and that he had not hailed Morgan. In general, Blake's testimony was to the effect that Morgan had commenced the assault and that in order to protect himself it was necessary to resist this assault and to strike Morgan several times, and also to kick him to free his legs from Morgan's grasp."
As a result of the assault Morgan was not only beaten unconscious but the injuries inflicted were extremely severe, many of them being permanent, and his face being permanently disfigured. In this regard the record shows that both the upper and lower jaws were fractured, the upper being fractured in two places; the bones forming part of the wall of the sinus, back of the nose, were also fractured; his nose was broken and completely flattened, the cartilage being knocked free from the bone, flattened, and more or less destroyed, so that transplantation of cartilage from other parts of the body will be necessary to restore it to normal shape; there was a contusion of the right ear, lacerations of the upper and lower lips, nose and the cheeks; an incised wound on the right ear; both eyes were contused and badly swollen; and there were hemorrhages from the ears and nostrils. In fact, as appears from the photograph inserted in the record which was taken shortly after the assault, Morgan's face was almost a solid mass of bruises, cuts and contusions, and very badly swollen; so much so that the attending doctor, who had known him since boyhood, did not recognize him. Some of the wounds became infected, and on account of the infection and extreme swelling surgical treatment to reduce the fractures was impossible for some five weeks. He was confined in bed in a hospital for a month and then at his home for a month; and even at the time of trial which took place some *202 three months after the assault he was unable to perform any kind of work.
[1] The evidence disclosed that the Ann Thomas referred to was the mistress or paramour of the defendant Blake, and it was claimed by Blake that the prosecuting witness Morgan had attempted, several months prior to the alleged assault with which Blake is charged, to commit the crime of rape upon her person. Appellant offered to prove the truth of these charges of attempted rape, but the court refused to allow such proof. Appellant claims that the refusal to allow such evidence was prejudicial error. It is said in appellant's brief: "It is the theory of the defense that not only were these matters material, relevant and to be admitted in evidence upon the theory that they were part of the res gestae to prove the state of mind existing between the parties, that is to say, as to their immediate apprehension of danger following along the theory in line of defense in that the act of defendant Blake was self-defense . . ." In People v. Wong Ark,
[2] It is further contended that appellant should have been permitted to introduce in evidence proof of the alleged assaults, as a matter of impeachment of the prosecuting witness Morgan, because he had denied having committed such acts. We have already held that such charges were immaterial as evidence here and not germane to the case; therefore it would be an impeachment upon an immaterial matter, but beyond this, the truth or falsity of these acts were not brought out on direct examination, but on the cross-examination of the prosecuting witness. In 27 California Jurisprudence, page 106, it is said: ". . . a party may not, under the guise of cross-examination, introduce evidence that is not competent within the meaning of the established rules. Accordingly, a party may not cross-examine his adversary's witnesses upon irrelevant matters for the purpose of eliciting something to be contradicted; if he does this the answer of the witness is conclusive and may not be contradicted."
[3] The next assignment of error is that the court, over the objection of appellant, permitted the district attorney in his argument to the jury to comment on the failure of the defendant to introduce in evidence the shoes or moccasins that were worn by him at the time of the assault, and also the further statement of the district attorney to the jury that he could not compel the defendant to produce them. The defendant offered himself as a witness in his own behalf and he testified in substance that at the time of the alleged assault he wore moccasins. Another witness testified that they were real moccasins and have no soles on them, but are made of heavy leather. It has been held that the district attorney may comment upon the failure of the defendant to produce material witnesses which would substantiate his story (People v. Piero,
[4] The appellant complains of the action of the court in refusing to give certain instructions requested by him. The first complaint is based upon the refusal of the court to give an instruction requested by him on the question of flight, and in giving the instruction on that subject offered by the People. The instruction given is in the language of section
The instructions are very voluminous and cover every phase of the case. The appellant was accorded a fair trial. The assault was brutal in the extreme and, as stated, inflicted very serious injuries upon the complaining witness. There has been no miscarriage of justice and the judgment and order denying the motion for a new trial should be affirmed. It is so ordered.
Knight, Acting P.J., and Cashin, J., concurred.