*1 notwithstanding judgment reversed as Halliburton, of Clair appellant Eva M. executrix estate Emory Halliburton, deceased. J., Acting P. concurred.
Griffin, being disqualified participate, no Barnard, J., P. takes part decision. July petition rehearing 29, 1955, for a denied
A hearing Supreme Court respondent’s petition J., Shenk, Carter, J., 1955. September denied granted. be petition should July Dist., 3086. First Div. Two. No. 1955.] [Crim. al., PEOPLE, Respondent, v. FRED et THE BROOKSHER al., et MARY Defendants; HUMPHREY *2 Henry Mark and C. Cali Mariani Brown, Attorney Edmund General, G. Linn, Clarence A. Attorney General, Raymond Chief Assistant and M. Mom- Deputy boisse, Attorney General, Menard, J.N. District Attorney (Santa Clara), Schatz, Jr., Deputy and John Dis- Attorney, Respondent. trict
NOURSE, P. J.The charged five defendants in one pandering (Pen. 266i, information with Code, added § Stats. ch. 32, §4), conspiring and contribute delinquency years. of a of 14 Defendants Duarte and Brooksher charged statutory were both rape. with All defend- jointly jury. ants were tried Separate to a verdicts were pleaded charge returned. Brooksher guilty rape on the of on of pandering guilty. guilty He was found on conspiracy charge. guilty rape. was of Duarte found remaining and the defendants of were all found pandering both contributing delinquency. to the minor’s (Welf. & Code, Humphrey Inst. and Fer- 702.) Defendants § reira appealed. alone have
Defendant Humphrey, referred to in the testimony as "Babe,” living together and Ferreira in adultery while she was either practicing prostitution or procur- in ing for They benefit others. were introduced to the prosecutrix by gave Brooksher who "Babe” with $25 prosecutrix she took to an out of purchased town store and complete for her a outfit of underclothes and a dress. On young occasion girl pertinent "Babe” gave advice carry as to could on trade as a how she best testimony prosecutrix and the as interest appealing of these two defendants clear and activities directly issues. one took Neither of these defendants any competent neither offered witnesses, the stand as one therefore, comes case, in defense. The as it their by competent sub- us, supported is one where stantial evidence. ground urged by appellants the trial first these that permitting police in as to
court erred witness microphone from a matters he learned installed Pagliaro home. The not detrimental to these relating It matters to another distinct appellants. concerned police thought Pagliaro involved. crime which the the' recordings incomplete unintelligible that were so them in evidence and instructed trial court refused admit disregard permitted The witness was them. partly recordings—but give based on these some conclusions involving or detrimental these sense Possibly defend for that reason neither defendants. testimony. any event, having failed objected to the ants *3 they appeal. error the first time on object, cannot claim to People Millum, 524, ; 42 526 P.2d (People Cal.2d v. 1039] [267 547, ; People 552 P.2d v. Dessauer, 38 Cal.2d v. [241 238] 730, 745].) 743 P.2d The rule McMonigle, 29 Cal.2d [177 changed by the recent decisions in has been of these cases People 434 P.2d Cohan, 44 People Cal.2d [282 v. 905] cases P.2d those 459 44 Cal.2d Berger, 509]. [282 v. to admission timely objection was made objection made. illegally. Here no such allegedly obtained fully established the Milium and similar cases rule of The Seguróla v. courts. See States United and followed 186, 77, 72 L.Ed. 106, 112 States, 275 S.Ct. United U.S. [48 190]. attorney ground urged the district The second is that argument jury—(cid:127) closing of misconduct in his in his defendants as “wolves.” particularly reference to all the all defend expression applicable and was referred to 14-year-old girl in inter ants—to who those advising her how become course, were those who a common
Objection also made to the remarks of district attorney big girl as to what the might brothers of the do by argument remark invited the defendants.
269 But, any defense event, counsel. these defendants did not object to the remarks and cannot claim error at this time. (.People Sampsell, v. 34 Cal.2d 813]; People 763 P.2d [214 v. Sutic, 241].) Cal.2d P.2d [261
Reference is made to the statement of the district attorney commenting testify. on defendants’ failure to ‘‘ ’’ said: strongest That is the confession. The statement obvi ously immediately was error and the trial court instructed the jury that such silence was not a confession. In the formal again instructions the trial court subject referred to this jury advised the that defendants had a right constitutional presumption and that no guilt or inference of could be drawn from their failure do so alone.
Other criticisms of the inconsequential instructions are require special do not Reading treatment. whole we are satisfied that the instructions covered all essential charged. elements the crimes The defendants were fairly tried and convicted and no other verdict could have guilt. followed uncontroverted evidence of their judgments and the orders are affirmed. Kaufman, J., concurred.
DOOLING, J. portion I dissent from the which states that the of the officer as to what he on microphone heard was “not sense detrimental ’’ or involving defendants. Statements of both testified the officer reasonably would bear they parties construction that to a scheme to use prostitution.