*1 Hansen returned home; the Hansen that when Mrs. Hansen at took the grocery home from his work he his car to drive to Mrs. purchases, make and that the Pruitts store to some accompanied Hansen him. mere fact the Pruitts accompany- shopping intended to do some and did also while ing grocery Hansen to the store could no sense “joint enterprise” suggested within ease doctrine appellant. in each action affirmed. Ward, concurred. J., J.,
Peters, hearing Appellant’s petition 8, 1943. September was denied July 13, Dist., Div. One. 3709. Second 1943.] [Crim. NOAH EDGAR Mc- PEOPLE, Respondent, v. THE DANIEL, Appellant.
Maurice A. Gleason Appellant.
Robert W. Kenny, Attorney General, Eugene Elson, and M. Deputy Attorney General, Respondent. Appellant was charged by DORAN, information with J. “preparation of a
the unlawful codeine (opium derivatives) apromorphine violation of section Safety Health and of the State of Code California.” jury guilty A in a charged resulted verdict of and the and from which followed is from the
appeal order a motion for a new trial. denying transcript of evi- reading reporter’s of the A careful Harman, a witness for the Mrs. Cloisea one reveals that dence Angeles Los a sheriff of she was testified plaintiff, residence she described as she visited what County, that County. following Angeles in Los 58tli Place East “ Q. anyone followed, viz.: Was then answers house, of the Mrs. Yes, lady you got there? there when Q. The of this defend- of hers. wife friend McDaniel, further that she then testified ant? A. sir.” The witness alleged opium deriva- premises and found searched these also testified The witness satchel. small black tives also instruments” were found. “a kit and some doctor’s same testi- witness’s following pertinent or glass jar Now, I show mony is as follows: many, how neediest-;I containing a don’t vial lot of whether jar and contents state ask to examine the will A. I have. When seen them before? have ever *3 A. In you for the first time? ... those and where did see to the bag. bag you have described Q. In which the same jury you the residence of this defendant? which in found Attorney): (Deputy District A. Yes. . . . Me. Cochean objects, circumstances After under the you had those found you in you later see the defendant this related, that have did Yes, Q. case? it in the time A. sir. was reference to When you in a half hour his home? About discovered the articles Q. factory Alameda, later. ? on his Where A. At a box paper place employment,”’ together she, with
The witness further testified that Board Medical sheriff and one Mr. Brooks State place employment, Examiners then defendant’s visited he taken which time informed that was to be defendant was questioning. to the sheriff’s Further substation alleged an confession from the witness included elicited same substance, in in defendant,, which was asserted admitted reply questions,, practiced physician he as a surgeon; syringe on hypodermic that he needles used the patients his narcotics well. drugs
The record described further reveals alleged. information were to be found rested. plaintiff the foregoing With record the corpus evident that the delicti not once was is at no There was evidence that defendant ever oc established. cupied at 1226 East 58th Reference the residence Street. lady Mc the house as Mrs. the witness the so-called assump more than Daniel, defendant, is no an wife tion, and reveals, for all the the information of the leading crystal have from ball. The come transcript quoted from the which include references to “residence this “in defendant” and his home” are equally presumptuous evidence, nor and are not do the anything. answers constitute evidence of Nevertheless the proceeded. Defendant testified and in substance admitted explained possession; obtained; how was denied knowledge of the nature of the substance denied the con fession.
A so-called character on witness was called behalf of defendant and direct examination testified as follows: ‘‘Q. Postelle, your Mr. what occupation? business or IA. am a laborer at the Pioneer Flintkote Roofing Company. Q. long you working How have been there? A. July, Since Q. you 1942. Do know whether or defendant was working Q. there? A. was when came you there. Do reputation around working there where being Q. abiding law citizen? A. Yes. good Is it or bad? A. Good.”
Notwithstanding immateriality foregoing obvious testimony and notwithstanding well settled rule that cross- examination on an improper, immaterial matter is the follow ing cross-examination permitted. It quoted by reason of its extraordinary you character. say Now his reputation good being abiding citizen, law know him as a doctor? A. Did ever practiced know that he on people? medicine A. No. know that he had *4 given people hypodermic injections narcotics? Mr. Glea : please, If the Court improper that is cross-examination. son opened gates, : He has if Mr. Cochran please. the Court Gleason: Not within Objection the issues. Mr. The Court: might sustained. I : for state the purpose Mr. Cochran I that prove particular can things I asking. am you bring : If intend to in evidence of that kind Court I certainly do intend to bring in that -. Mr. Cochran1: 676 (cid:127) objection will overruled. Mr.
evidence. : be Q. you this A. No. know defendant ? Did that about Cochran : Q. he on women and had used performed And that abortions drugs Q. narcotic on them? A. Did know that he had by having a child another woman to whom was admitted Q. not married? A. No. didn't know that? A. No. Did You performed apon know that he an abortion a woman and she died? know was A. No. that the defendant charged against daughter? felony, with a a sex offense moment, I that Just cite as misconduct for Mr. Gleason: the reason counsel that issue has not been heard knows yet. Objection coming up for trial. The Court: over .ruled. A. No. Mr. Cochran: That all.” question
Even assuming that on direct examination reputation one, to defendant’s had been a valid nevertheless improper. the cross-examination recited above would have been highly prejudicial That there can be no doubt. The enough but, alone effect when produce were such “I attorney that, prove asserted can district particular things assertion, “I asking,” am followed certainly evidence,” do intend to the error was circumstances, aggravated in the injury, and the resultant beyond recovery. character Reputation what a an is the estimation which Reputation defendant. about held; words, imputed the character in other individual actually known of him than what individual rather an By would no rule of evidence witness or others. either things,” “prove particular permitted to been plaintiff have purported cross-examination. during the referred to 435], p. Cal.App. People Burke, [122 In following: appears n bitterly district the conduct complains “Appellant of the character witnesses attorney in his cross-examination good reputa- testified Those witnesses the defense. chastity. quiet and also peace of defendant tion they if had not heard they were asked On committing abortions, practice of had made a that defendant taking improper with women and having intercourse permitted The court these patients. female liberties with undue objection question asked of an to the questions but sustained having defendant been had not heard one witness *5 complaint is by grand jury County. of Lake No the indicted any question made of asked of the himself. Under defendant authorities, questions the the prop- the allowed court were erly permitted affecting weight as the in re- reputation. lation attorney to The district not defendant’s anything verity suggested claim as to the or matters implied questions. that, The rule is on witnesses, they of character may specific be asked as to re- ports concerning the involved, they trait of character have a tendency reputation, although to establish the they may bad ’’ not be purpose. sufficient for that
There inquiring is a vast difference reports, between about rumors like, and the a character questions to what the witness knows defendant. argument that defendant’s “opened counsel
gates” unavailing. is An prejudicial error that is is no less so it because from a results lack of knowledge part on the Legitimate either counsel or both. cross-examination does improperly not to extend matters admitted on examina direct object tion. Failure to improper to ex direct may amination advantage not be taken of on cross-examina testimony. tion to elicit immaterial so- irrelevant ‘‘open called gates” argument is popular fallacy. “Ques designed tions to elicit testimony which is any irrelevant to issue in case on trial should be excluded judge, even though opposing allowed, counsel has been objection, without to upon introduce evidence subject.” (27 p. 74). Cal.Jur. “It is a rule settled that cross-examination as matters ir to may relevant issue and should be excluded—even though, in some eases, testimony relative thereto was elicited upon direct party may not, examination—and that a under guise cross-examination, introduce evidence competent within the meaning of the (27 established rules.” 106). p. CaLJur. recently United States observed: judge think have counsel’s stopped
“We should waiting objection. for an ‘The discourse without United States ordinary of an to a Attorney representative party controversy, sovereignty obligation govern but of a whose all; obligation compelling govern as its impartially therefore, interest, prosecution in a criminal and whose done. As case, justice shall be win shall but not that very definite sense servant peculiar such, guilt shall not law, is that aim of which the twofold may escape with earnestness prosecute or innocence suffer. He But, strike vigor—indeed, do so. while he should *6 as liberty to strike foul ones. It is blows, he is not at hard improper methods calculated duty to refrain from much his wrongful every legiti- it is use produce conviction to to ” just Viereck United mate about a one.’ v. means to L.Ed.-, States, p.-]. 318 236 S.Ct. U.S. 87 [63 People Perry, 144 748 P. Respondent relies on Cal. [78 Mayes, 113 The 284], People v. Cal. and [45 860]. Mayes Perry Mayes case on the ease the ease con- relies and following. also on behalf of tains the "Witnesses were called sustaining testimony the of purpose the defendant for the of impeach, prosecution attempted that the to other witnesses had prose- of these upon and the cross-examination witnesses the specific allowed to question cution was to them with reference give wrongful permissible acts. While to evidence of it impeaching a'witness, purpose proper upon for the of it is acts given testimony, of has either cross-examination a witness who the of sustaining impeaching credibility for another wit- knowledge ness, of question spe- him with reference to acts, themselves, for specific reference to the acts cific and with purpose overcoming upon the effect of his authority support is direct examination.” No cited any quotation nor The can be found. concedes above doctrine inadmissibility wrongful pur- acts evidence of approves but pose impeaching witness, subject. inconsistency on the same The indirectly pro- is conceded to be obvious; permits what directly. hibited a new denying the motion for the order and reversed; the cause is re- them each are, and trial. a new
manded White, J., concurred.
York, J.,P. 28,1943, July rehearing denied petition A then rendered: opinion following rehearing The petition THE for a is denied. COURT. rehearing in for a urged petition It is evidence because, it is corpus argued, delicti it tends established someone, in to show that the narcotic was requires. all that the law which is evidence revealed the record that be only re-
garded tending corpus delicti is establish the follow- ing testimony of the witness Harman: briefly? premises Will those describe A. residence. . . make a search of or in . and about premises? did. anything we What there, ? find Mrs. Harman A. We found a medical book and
a doctor’s kit and some instruments believe an appoint- ment book.” witness testified substance the nar- in the cotics were kit. doctor’s accepted generally prima
The rule is facie evidence corpus establish delicti, casual, sufficient to but evidence as wholly lacking indefinite, particularities uncertain and finding something of, as the in or premises, about the falls proving possession, prima far short of even facie.
Respondent’s petition hearing by for a August 12, was denied 1943. July Dist., No. 13845. Second Div. Three.
[Civ. 1943.] HA- LEE K. al., Respondents, EWING et OTOKICHI MADA, Appellant.