*1 No. 2298. [Crim. First Dist., Div. One. Nov. 1944.] THE PEOPLE, Respondent, PEAK, GEORGE Appellant. *4 and H. Appellant.
Leo R. Friedman Wm. Penaat for Attorney General, Lener, Kenny, David K. Robert W. General, Haley, Deputy Attorney Harold J. District Attorney, Respondent. for George and seri
WARD, The appellant, Peak, J. shot ously daughter Epidendio her husband wounded his Jane h shotgun family dispute a a Epidendio during Ernest wit attempted Epidendios certain over removal fur they personal belongings niture which the owners were dwelling Epidendio from a Ernest which owned appellant living. fired, then was There but one shot was charged indictment, containing in one two counts, violating with section 245 of Penal Code—assault deadly guilty by weapon. with He on was found appeals judgments each count and he from conviction denying and the orders his motions for new trial. gro- Epidendio operated who with his wife Jane County,
cery Larkspur, Sycamore Marin store lived at Street, belonged Upon Ernest’s in- property to him. Army, parents duction her into United States Jane invited Sycamore to live her residence. Prior to with at Street Epi- caring time for such the Peaks had been the child dendios. For this month in cash and paid $35 given store. At the drawing grocery $15 account up Epidendio time took their with residence Mrs. agreed payment cease; that the month that the $35 a should rental; pay pay Epidendio Peaks were to that Mrs. was to groceries; for the that Mrs. bills utilities and furnish the Shortly thereafter, Peak buy was to all the meat. members family had at the after Ernest’s who assisted wife store work, service, being he into the continue such went unable to arranged for her her Epidendio help Mrs. father to with finally accept payments, business. At first he refused agreed to take and thereafter $50 a week four weeks $35 *5 week, profits during also one-half of the store of time employment. Epidendio of his Mrs. said she made the of payments salary kept them; Mr. of cash and record salary. paid any Peak denied that he was Upon army discharge Ernest’s from returned to the he Sycamore together. lived Street address and the two families however, the rec- developed immediately, Discord almost replete during ord of quarrels, with recitals of some Epidendio persuaded Mrs. her husband to leave the house Shortly return, order to avoid violence. after Ernest’s duty store, Mr. Peak to report ceased at and Ernest tendered him a represented check for as $585 which he said nearly figure as he profits could one-half of the of the business during time employment. accept of Peak’s Peak did not Epidendio check, and Mrs. claims the trouble started when her being father claimed he was cheated and wanted more money. Owing discord, Epidendio continued and his an apartment store, wife moved to their taking over with them only clothing what needed for immediate use. Prom Epidendio time to time Mrs. pro- went back to house articles clothing cured of and her husband, trying for herself all persuade parents the while to her to leave so that she and her husband could their move back into home. On such occa- arguments developed sions words exchanged. bitter 14th, On November Ernest, wife, his of two his brothers and four other trucks, moving van, men pro- two one Sycamore ceeded to the Upon Street residence. their arrival party alighted from the trucks and started to ascend the stairs of dwelling. Epidendio Mrs. leading, opened she screen key lock, door and inserted her in the her mother came door, safety inside threw on the catch and called Mr. Peak. Epidendio Mrs. states that she told her mother out, that since Peaks would not move she her husband wanted their to remove furniture and be- longings. Her mother said she was told had come move the dispossess her parents furniture and to at the same time. had in father come to front meantime through the house and could be seen the front room window at the left of the outside door. He pulled had aside cur- tain pointing shotgun and was daugh- double barreled at ter. Calling vile names he threatened to shoot unless the party departed. Epidendio go ahead; Mrs. told him to she yellow.” entrance to the house too Since “he was
believed going to the Assis- gained Epidendio left, could not Mrs. gave an account Larkspur, she tant Chief of Police whom apartment, her happenings. then returned She the scene gun and back to armed herself with a small went immediately gun was Upon the trouble. her arrival there the brothers, who away from her one of her taken husband’s then left with put Epidendio it in and Mrs. his truck. Mr. this *6 the conclusion moving the man—who had arrived at their required—and called that his time services would be possessions personal attorney, to take their who advised them again to accordingly went They but to leave the furniture. more the once ascended and, house their friends the with had been stairs, telling that she Epidendio parents Mrs. her her right to take by attorney her that she had the advised just the door with personal her father inside effects. saw She if to shoot threatened gun the still his hands—and he put his door and away. opened did the screen go discharged the Peak key in lock. instant the At the same door, injuring his the gun through glass partition of the in one foot. feet, her husband daughter legs in both any in to establish Appellant that the state failed contends upon per bodily any harm injure tent inflict part on his to or a attempt, coupled with “An an son. assault is unlawful person of injury on the ability, present commit violent com 240.) “Every person who (Pen. Code, another.” § deadly with a person of another mits an assault likely to any of force weapon instrument, by or means provided by bodily punishable” as produce great injury is difference between 245 of Penal section Code. 245 240 and is referred to in the offenses sections (In Shull, re 23 deadly Cal. weapon the latter a is involved. there offense simple In assault 417].) 745 2d P.2d [146 offense. In attempt an commit ability must be an the method weapon and greater the character of the offense (People v. offense. of the use an essential its become Cook, 15 People v. Cal.2d McCoy, 54; * (Cal.App.) 147 P.2d 752].) 507 P.2d [102 deadly weapon, malice
In
assault
the offense of
with
deadly in
intent
use the
crime; an
is not an element
granted on
People McCoy
Supreme
hearing in
Court was
v.
*In
reported in
Supreme
opinion
Court
is
13,
final
of the
April
1944. The
25
177
Cal.2d
P.2d 315].
[153
901
of its use.
If the
from
manner
may
implied
strument
gun
firing
under
circum
wrongful
act is
unlawful,
may be inferred from the
intent
stances is
including
parties
all of
used,
position method
surrounding
“Where the
un
circumstances.
act
both
per
inflict
wrongful,
calculated to
serious
lawful and
and well
imply malice and an
inten
injury,
sonal
the law will
unlawful
mind
existing
actual
intention
tion and override
gun
aggressor. Thus,
it is not
assault
fire a
while
is an
purpose
frightening another,
in the
for the
air
regard
aggressor’s intention,
assault, without
to the
fire
standing.
gun at another or in
the direction
which he
disregard
not tolerate such a
for human
The law will
reckless
130, 6.)
202-203,
(4 Am.Jur., p.
(See Cal.Jur., pp.
life.”
3
§
19; People
Leyba,
v.
Lim
200]; People
The cases holding cited that in the offense *7 deadly weapon specific intent, assault with a there must be a go People do not that far. A fair sample Dodel, is v. 77 Cal. defendant, 484], 293 In P. the Dodel case moving [19 away complainant, from the had a knife his hand did attempt not use or to use it. Two instructions there criti are sized, gist of being the second that there must have been attempt weapon. use the drawing The of a wea pon, manner held, which it and the statements made, any, by if the holder of the are circum instrument all stances which be in determining considered there whether inwas fact deadly weapon. (People an assault with a v. Adams, Cal.App. 114].) 76 188 P. [244
The
court instructed the
that
in the
of assault
offense
deadly
weapon
specific
necessary,
gave
with
intent
is
and
upholding
additional
instructions
principle
the first
criticized.
specific
eases cited involve offenses wherein
intent must
proved, viz.,
rape (People
with intent
v.
assault
to commit
Johnson,
622]),
(People
Jones,
902
176]; People
160
358
P.
v. Flannelly,
Cal.
In public offense joint operation there must exist a of act intent, negligence. (Pen. Code, 20.) or criminal § There are some wrongful crimes intent is presumed which a solely upon based If commission of the act itself. intent is not per made an affirmative element in an offense knowingly, imputes formed criminal intent. The law assumes an Even law intent as an essential of crime. designed felony a case where the is the life of another is It accidentally taken the law intent to kill. presumes an only voluntary an un in offenses where the commission of specific intent lawful act is the essential element based alleged The element of proved. that intent should be negligence specific intent. proof criminal is a substitute for (Pen. 26; Cal.Jur., 850-851 Code, 7, 8, 20, 21, pp. §11 §§ Am.Jur., p. seq., §23.) present et In the seq.; et had made threats case there is evidence together Epidendio. evidence, believed, Ernest If shoot circumstances, shooting surrounding and the with actual charged in fact view of the proof sufficient of the offense acceptable to the explanation was not appellant’s jury. in his attorney had appellant’s the trial
At the time of one written from Jane to Ernest six letters possession establish contended that the letters to Jane. It is from Ernest her father existing Jane and between relationship the cordial “They army, in the and that during the absence of *8 showing part on the animosity background disclosed established family defendant-and toward Epidendio’s Ernest upon animosity operate showing this would condition Epidendio Ernest causing to the extent of him in turn to animosity entertain toward the defendant.” Several of by letters were her These mailing. read Jane to mother before letters were upon theory admitted in evidence that Jane waived the privilege by had their publication of contents her mother. All of by the letters were the mother obtained from the bottom drawer of a used dresser the bedroom by places Jane Ernest or from the house.
The Ernest admissibility of the letter written Jane, as identification, marked an exhibit dis posed immediately, just I it reads: “Hello Sweetheart your received letter and Alice’s as well [Ernest’s sister] upset it sure your me an awful lot to hear about misunder you standing you two had. I wrote Alice and told her to tell Im saying sure she all did not what she was after know your it if wasnt for Dad that the store would have had family. close in two weeks if depended Honey my So you I want do me this please keep peace one favor and gives the families help Alice another Chance at least to you while are away you please? with me in New York wont honey always really Well you I sure I cant tell how much you hope you letter, love feel the same.” This written August, 1943, animosity the month of does not show on the part of Ernest to the read Peak, defendant or that Jane after ing the any animosity letter held her It does toward father. part not indicate favoritism on the of Ernest for his own family, proper impeaching and was not evidence of state made by ment facts which not dis based army covered until his return 1943. September, from the purpose of section 1881 of Code Civil naturally Procedure is to intact the confidence hold arises from the It is not relationship husband wife. the act of thereof that communication but substance legally held inviolate. of the rules cov propriety ering hus the admission of written communications between wife which have fallen into the hands of third band and rule; is, is similar parties, to the oral communications spouses party. conversations between overheard a third person “. the rule is well that a third who over . . settled wife, hears a communication between husband and whether surreptitiously knowledge, with or without their and whether although may testify regarding he openly, learns, thus what *9 904 be, wife, as
the communication
between the
husband
(63 A.L.R.,
108-109.)
pp.
confidential character.”
one of a
though
“For, even
a conversation between a husband and
confidential,
person
a third
over
wife was intended to be
who
may testify
it,
presence
not,
heard whether his
was known or
Center,
Cyc. p. 2359;
40
v.
35 Vt.
as to what was said.
State
(Nash v.
378; Wigmore,
ed.,
2339,
5
Ev.
and 2326.”
2d
secs.
Fidelity-Phenix
Co.,
Insurance
Evidence without connivance third spouse, of a or the use of force or violence obtained without design upon spouse merely by or by but accident accidentally third or de party, is similar to oral admissions signedly prosecutions, criminal overheard. “In by particular, is methods frequently evidence obtained morally reprehensible dealing, are to fair under and offensive courts, disapprobation of the circumstances which meet with illegal. If, and, by how many instances, means that are ever, is relevant support offered in of a fact issue evidence although competent, generally admissible, and otherwise it is unethically, wrongfully, or unlaw may have been obtained illegally, by trespass, unless fully or it was secured where guarantee its admission a constitutional will violate against sought is in person is contra whom its admission (20 Am.Jur., pp. 352- statutory vention of a enactment.” 353, 393.) design the means of When obtained § in the in- obtaining legally excused, is not wrong- justice ignored theory that the upon terest of it is ample remedies premises ful invasion of is a matter for which provided. seizure but the un- are It is not the search and (United which is condemned. reasonable search and seizure Wigmore Evi- Bell, also, F.Supp. 986.) (See, States 48 v. dence, ed., VIII, seq.) et 3d vol. §2183 jurisdictions entirely
It is true that are various redress for principles that harmony with the above stated evidence, pertinent wrongful possession is not the exclusion of accepted must be decisions which so we turn California In 8 guidepost the rule to follow. California directing as the . 178, it is set forth: “. . Jurisprudence, page 78, section subjects of evidence objection papers or other that it is no illegally taken to the issue that pertinent which are they are of- against whom party possession from the
905 This rule unlawfully obtained. or were otherwise fered offered, when evidence doctrine that based not a only competency and collateral its court will consider (See Peo- it was obtained.” as to the method which issue ; 435, 24 ple P. A.L.R. Mayen, 1383] 188 237 v. Cal. [205 People v. 517]; People LeDoux, 155 535 P. v. Cal. [102 Gonzales, 20 People ; v. Kelley, 22 169 P.2d Cal.2d [137 1] Cal.App. People Eiseman, 78 v. 44]; 165 P.2d Cal.2d [124 Cal.App.2d 83 People Beilfuss, 59 ; 223 P. v. [138 [248 716] 516]; People v. Ajuria, In 799 332]; P. P.2d re Cal. [207 People Cook, 148 353]; Hrjak, Cal.App. [259 *10 one People Gonzales, In it was held 43].) 334 v. Cal. P. [83 illegal act the against remedies may have civil and criminal using taking is not from property precluded but the state of “ the At 169 the said: . . page evidence so obtained. court others, permits in- many accepted state, rule in this as ground evidence on the improperly of obtained troduction not illegality of the search and seizure does affect may If such the state use admissibility of evidence.” any logical rea- prove guilt not appear evidence to there does prove innocence why may not in such manner son accused guilt. or a doubt as to raise reasonable ap 1881 as considered subdivision 1 of section We have herein that all plied to and have of the facts concluded to letters were admissible when limited a consideration of particular section but not otherwise. “We are not con vinced that intended in case to shield said section was an party deprive adversary action and of the bene (In Strand, testimony fit of re 123 Cal. party.” of the such 170, 89].) 172 P.2d let App. “If it be conceded that the [11 obtained, it illegally operate ter was this would not exclude ground privileged from evidence on the that it was commu self-incriminating. Though nication, or that the evidence was subjects may illegally papers other have been possession from are party against taken whom offered, unlawfully valid obtained, this is no otherwise objection pertinent if admissibility their are to the ” 254a.) (1 Evidence, ed., (People Greenleaf on 16th issue. § Swaile, 12 Cal.App. 192, 134], approved v. 196 P. [107 People Baender, 536].) 68 49 Cal.App. v. P. [228 may People, against proceeding spouse, criminal one prove spouse declaration if otherwise admissible.
906 spouse one provision may In other words code be in against other, competent witness but statements of may proven by competent to some one else spouse made one Chadwick, (People 4 Cal.App. 384, v. 63 testimony. P. [87 DeMoulin, Cal.App. Bank 56 ; First 313 Nat. v. P. [205 389] People ; Cook, 43].) 148 334 In v. People v. Cal. P. [83 92] Mitchell, Cal.App. 569, 573 said: 117], 61 P. the court [215 trial, on coun “While defendant's wife a witness sel defendant the letter was inadmissible contends-that Code, provisions of section 1322 of the Penal under competent provides effect that wife witness against in a criminal the husband action. evidence shows floor cabin particular letter was found of a this If it shortly after defendant’s wife had removed therefrom. defendant’s wife could not have testified be assumed that it that no one letter, to the does not follow contents analogous might not It is else 'the letter do so. read who a con testimony by who overheard the situation of a witness (Lloyd 50 Pennie, wife.” v. between husband and versation 975].) Morhar, Cal.App. 380 4; People v. [248 F. irrespective quotation that, from the last appears It existing relationship between Jane confidential Peak, Mrs. who found letters Ernest, mother, Jane’s con testified as to their parts house, could have various Everson, Ky. 330 S.W. tents. In Commonwealth [96 that neither the husband Am.St.Rep. was held 365] conversation testify a confidential nor wife could *11 People might In v. housekeeper do eavesdropping so. that an hus recipient letter from her wife, a of a Baender, supra, a attorney appeared witness testify, but her as band, did not in The introduced evidence. question in was so and the letter ad in the case was particular circumstances letter under supra; Mitchell, (People v. no waiver. missible, waiver or People Morhar, supra.) v. herein Ernest introduced Jane to One the letters from of you come following: your “. if wise when . . contains he you because helping continue you ask dad to
back will Alice , trouble. . . keep us out of answers to knows all the it is and way if that’s the Birthday so say Happy didn’t even your in next you from get things me to only nice to she is if job because get another ask her you letter I wish would dad your the business and run- they couldn’t stay I home people have around I can a in week so unless been hasn’t
907 me that me not going Well, enough like I am to work. that’s pity just happen you of self but I what will when know come back; family you will be all tell you things around all did, you will hold the same resentment toward dad you always have had.” The letters, introduced they appear and not introduced in record, are ad ditional (Code Proc., evidence of a different character Civ. 1939) merely evidence to the same but of same character § point or, (Code word, Proc., 1938). in a cumulative Civ. § rejection Under the circumstances the of some the letters of was not error. subsequently
The
letters,
previously
additional
written
merely
all
approximately
weeks,
of
six
period
within a
reiterate
criticism of other
disapproval
Alice,
direct
of
a
relatives
It does
of Ernest and an
of
“Dad.”
approval
Jane’s
appear
rejection
the additional evidence
of
any respect
appellant.
prejudicial
the interests of the
prejudiced
party
is not
general
rule is that
if
of
the number
thereby the
limit
court
its discretion
particular
prove
of
witnesses or
number
documents
37.)
(26 R.C.L., p. 1033,
link
of
a chain
evidence.
§
sufficiency
court
may exercise a reasonable control over
2044;
(Code
Proc.,
Civ.
particular point.
of evidence
§
v.
;
Estate Wineteer, 176
28
P.
Sheridan
Cal.
516]
[167
of
Haupt,
;
P.2d
Estate
Cal.App.2d
15
200
Sheridan,
175]
[59
Garbutt,
200
197 Cal.
; People
could have concluded *12 family. jury and The himself evi- acting protect his the latter conclusion. dently reached there “a distinction relation- court instructed that guest and on the one proprietor the owner or a ship between a and and tenant on the other. As hand, that of landlord and, in- an interest the real estate matter of a tenant has law possession among things, he entitled the exclusive guest hand, the other has property. of the leased On estate, part. He interest in the real of which a residence is or premises, is a mere He has the use of the merely licensee. portion of the the actual exclusive premises, without or possession which remains the owner. you beyond
“If from the reasonable believe certainty and to a moral that the defendant doubt Epidendio not en- a tenant of Ernest and that he was premises titled to the use occupancy exclusive and Epidendio Street, by Sycamore owned said Ernest at California, City County Marin, Larkspur, State of a licensee using premises that said defendant was said not have said Ernest then the defendant did Epidendio, Epi- Epidendio right to exclude said Ernest Jane right dendio, he have the to use wife, therefrom, nor did any them, prevent them, force or violence or either of entering from with premises together, said assault Epidendio deadly weapon by the defendant said them, en- they, while or either of were Jane Epidendio, tering attempting together, or enter premises the said ’’ justified. would not be paragraph The first is a correct statement of the law although relationship hiring or established the oral renting space depends upon contract, of room construed light in the parties, the intention of the gained made circumstances from statements them surrounding the execution contract. paragraph second must be read connection applied
with other the evidence. instructions then When that told criticism that the isjjlonp .appellant’s to find himjjjg^ilty fn^'0^^terr¡]^h^tqth5r0ei?!iumstances under whidy&s .$pi4rf$¿ s^g^fi, t]$ l^piptpn firp^es, even if they.^yp .^erp-gting. ¿p pose in a^pij^,;^lr^^ defendant *13 respect to have been the this seems law read as a whole
are to appellant the seems if error occurred fairly stated favored. have been suggested appellant, it has been by claimed
Though not so spe instruction, and that a formula a that instruction is the “It applicable. be applies that otherwise cific rule would instruc a ‘formula’ rule that where so-called is doubtless the jury finds in the event the directing given, tion is a verdict es it all the elements true, facts be must embrace certain to omission therefrom of recovery, and that the sential to a of effect error, prejudicial the of elements amounts to such of omitted elements inclusion by which is not overcome (Edgar Citraro, Cal.App. v. 112 in other instructions.” 645].) [297 first parts; above divided into two The instruction a law; second is not fact paragraph simply states complete not assume to state- formula It does be instruction. verdict, jury base a upon may the law which the ment of (Harvey Aceves, 115 Cal. ignoring all other instructions. alone set App. 1043].) not, standing as P.2d It does [1 be premise which, instruction, forth in the state a if found It true, finding appellant guilty. jury would warrant the find- upon facts simply certain found to be true which states ing weapon justified.” not be deadly of assault with a “would justifying use may other of There be circumstances weapon deadly that are forth in other set instructions. ignores by appellant
It instruction is contended that words, In other and sets aside the doctrine of self-defense. It that contain the elements of is often it should self-defense. impossible essentials containing frame an all the instruction it apply laymen may intelligently follow the law and so that given request to facts. Instructions at the of were 197; Code, section jury provisions of Penal under the given: following also “The under conditions First, that the right be asserted are: self-defense bodily injury against exists party whom the threat of serious Second, aggressor; at the first not himself fault or upon shooting necessary the infliction prevent injury bodily a great himself his wife or or child placed under person. Where fault and other one is without a reasonable the fears sufficient to excite circumstances in- bodily designs great person to commit some another him, child, jury upon ground or wife or and to afford danger reasonable belief there is imminent person accomplishment design, of this such may, acting under alone, slay fears shoot justified these or assailant and be ’’ doing by appearances. so “If the circumstances were justify person such a reasonable in believing danger injury to himself to his of- wife or to his child would be he may appearances imminent act these alone and be justified doing.” upon every so was instructed suggested phase of appellant. self-defense Appellant suggests that definition of licensee is not con tained in one of the it instructions. If was intended that such was, might reasonably be, instruction or if be construed to instruction, formula instruction contained a point might worthy definition licensee the of some *14 It is not a further consideration. formula instruction and we guest fail to find on instruction the definition of li or , given. by appellant they censee submitted that not “If was fairly law, harmonize as and accurately a whole and state the may a reversal of not be had because verbal inaccuracies, or separate because instruction not all does contain of the ele gathered ments are to be from the instructions as a (Douglas Co., whole. 390, v. Southern 203 396 Cal. Pacific ; Johnson, 374, P. De Torre v. 203 La Cal. 377 [264 237] [264 ” (Westover 485].) City Angeles, Los Cal.2d 350].) P.2d [128 appellant
There evidence to is show that his fam ily guests Epidendios. Assuming, however, that right they right had a in the house, as tenants to live the awas compion daughter. one the with son-in-law Under either appellant justified was in preventing circumstance Epidendios obtaining belongings personal from their unless entry attempt by or to enter an unwarranted assault agents Epidendios or their The evidence occurred. does part They on the of the Epidendios. show such conduct right had a enter and made no assault Peak or his -wife. embodying
It the court erred in in the is contended that 1127c, subject Code, covering instructions Penal section flight. Flight, standing alone, sufficient to is not immediately guilt, flight establish but after the commission of an offense or after one is accused crime is a circumstance jury that matter for the de considered grand re disappeared day jury Appellant termine. ap against him, away remained for the indictment turned and surrendered. one and then returned proximately week had been that the indictment would be or he knew Whether returning leaving and his intention intention filed, his facts by jury upon determined all to be are matters from record prepared say are not presented. We case giving instruction this presented th'at the of such evidentiary support. was without looked
Appellant that when he out testified “Shorty” he Miller morning question window saw on testimony There is that an iron in his with bar hand. made. Miller was that threat to use was bar was used or presence porch his on called in rebuttal and admitted any weapon in hand iron bar or his he had an denied Epi possession. that the He also stated on cross-examination dendios lived with him. He was asked the following: [1] Tell you you got everything from the time there until you me did left. [3] What were ... [2] you Who doing? else was What did you go porch with there you? ? . . . . . . shows [4] Had second lived up there with fourth questions you before?” were answered The record might call question first witness. The rather broad mat lengthy dissertation and immaterial for a on irrelevant judge ters. the trial not abuse discretion. Certainly did part answered, and The first been question had third for— you go latter did there part—-what the answer to the led appears certainly not numerous times. The question. astray ruling court’s on that tried transcript The entire discloses *15 could ably fairly by court and counsel that the conscientiously not have returned verdict. denying trial judgments
The motions for new and orders one are affirmed. counts and two of the indictment Knight, J., concurred.
PETERS, P. J.I dissent. during
An that examination of the record discloses course of this least serious errors were committed. trial at three light are in my opinion, In when errors considered these evidence, they preju- were of the closeness of ease on dicial, and warrant reversal. passing six first of these errors relates to some letters
The Epidendio, complaining Ernest the two Jane between army. in the The trial sus- witnesses, while court these on the objections to the admission of letters sole tained ground they privileged were communications between that wife, though even the evidence disclosed husband and that fallen The ma- into the hands Mrs. Peak. letters had jority opinion holds that “all of the letters were admissible particular consideration of that section when limited to a Proc., 1881, subd. but not otherwise.” It Civ. § [Code 1] in pointed out, only that the trial court the should be here objections they privileged, and to these letters were that were impeach certain as to col- they only that tended to witnesses objection, lateral The trial court this second issues. overruled upon ground they solely but excluded the letters that agreed privileged. were We are all that the letters were respect privileged, and that the trial court was this majority opinion, however, holds that it was not error. because error for the trial court to exclude these letters “merely were to the same same character 1938.) point or, (Code Proc., in word, Civ. cumulative. § rejection the letters Under the circumstances the of some of opinion majority was not then relies on the well error.” rule that “in limit the settled trial court its discretion prove a number of or the number of documents to witnesses fallacy particular link in a chain of evidence.” The obvious reasoning this trial the discre- court, is that the whom tion vests, has never exercised discretion in this ease. perti- judge Here the obviously trial believed the letters were nent, erroneously privileged. The ma- believed appellate jority opinion seeks the discretion of an to substitute court judge. for that of the trial
In attempt improper rejection of these show prejudicial, part majority opinion quotes letters paragraph admitted, of one and then from one letter that was rejected “merely” concludes that the cumulative letters were This, evidence to the same not a fair my opinion, effect. group, characterization of these letters. When read as a excluded during letters disclose that Ernest’s absence while army, kept open largely in the the store was because of the appellant. They initiative and hard work of further disclose feeling Epidendios there was bitter between the Peaks; that the had been divorce between Jane and Ernest Epidendios caused the unreasonable demands *16 quarrelled Ernest with Jane sister of had son; that the their store, and accused Jane had management over fire money; had been forced to that Jane wasting Ernest’s jealous because Jane’s Epidendios were girl; that this had and because Jane operate the store helping to father was them when very over to profitable business not turned if he told Ernest that army. One letter into the Ernest went around, him he had family order as going let was to move they up better close the store and past, that had away. important. They that while disclose
These letters were most deeply army, and Ernest were both Jane Ernest appellant’s behalf, appreciative efforts on their that appellant relationship between Jane and Ernest and was then harmonious, outstanding appellant had done an most and that job appellant Ernest had testified on the trial that for them. nothing ordinary had done while Ernest was out army, and had testified that the would not have Jane business though appellant had testi- closed even not assisted her. Jane sister-in-law, fied that neither her brother-in-law nor while army, attempted to create trouble between directly testimony. impeach Ernest and this her. letters greater Of inferred importance, even could have letters, admitted, Epi- from these had been family antagonism have provoked feeling must dendio return, between and Ernest and Jane after Ernest’s directly Epidendio the letters what the motive of the show appear in family It is some these facts true that was. quoted appear But in that letter. letter. all of them do not controversy background of be- proved These letters prosecut- very tween the two families words of two “merely” testimony ing To refer to such as cumu- witnesses. eyes lative, majority opinion, to one’s to does the close judge attempted trial the realities of the situation. Had the discretion and excluded these letters on the exercise his not,, he ground merely cumulative, which did compelled hold he abused his we have been would prejudicial. my opinion, In this error was most discretion. errors this, the other To understand the seriousness of made, reference reference will hereafter be some so, ascertain be made This is because to must evidence. prejudicial the entire particular is not whether a error considered, be. including record must favorable appellate defense. While an power to the court has no weigh evidence, under section of art. VI of the Con- *17 4% in stitution, determining whether an prejudicial, error is the appellate court must make examination “of the entire including the cause, evidence” order to ascertain whether complained “the has miscarriage error of resulted in a of justice.” I have no doubt that the evidence recited the opinion majority supports judgment. the But if' error has committed, has, it been as I believe then the court is under a duty only prosecution’s evidence, to consider but to consider the whole, evidence as a in order to ascertain the seriousness of the if It is obvious that error. evidence is overwhelming in the prosecution, favor of or even if the weight strongly prosecution, par- of evidence favors the a may ticular error properly nonprejudicial. to be held But if a one, evenly the case is close with the about evidence di- is vided, equally that the n identical error then obvious be found prejudicial. to be
It will be noted that the majority opinion expressly does not .overwhelming, pre- hold that evidence is that it even ponderates in prosecution. However, favor towards the opinion, jury end of the it is stated “that could not con- scientiously have other verdict.” returned Such state- ment, my opinion, totally unwarranted the record. supported analysis It is by any testimony. of appellant’s record, An showing examination of the far from that “conscientiously” verdict returned, could have demon- been certainty strates very to that the case was close one on way, ample, facts. Stated another there was substantial evi- dence, which, if jury, compelled believéd have would acquit “conscientious” jury appellant. to
The produced by evidence the prosecution, and recited in part majority opinion, in the supports implied findings that was an irascible man a trouble- and who, maker, cause, unjustifiable without lawful committed an deadly weapon daughter and most serious his assault with on hand, her husband. On the other is some there evidence feeling that bad Epidendio family existed between the Peak, feeling Epi- that of and that the fault of such was whole basis of defense that Peak knew dendios. feeling, daughter, this ill and that when seven men and his attempted to secure access manner, and boisterous ain loud himself; wife injury to or to in fear his house, he was to the kicked Bpidendio Willie had only after he fired that There against life. had been made after threats door It an ad- support this defense. is substantial 14th, seven men morning of November fact that mitted Sycamore in two Avenue arrived at Bpidendio Jane prove, evidence to claimed, and offered prosecution trucks. personal remove the furniture only they came shows The evidence belonging Jane and Ernest. effects had in the house and Ernest only Jane furniture set, a breakfast room set, sets, room bedroom living two furniture be- balance of the kitchen furniture. The and some admitted and Ernest longed appellant and his wife. Jane storage arrangements made no had place and that it not have been taken furniture, could living. Incidentally, then after the shoot- *18 trial, time of the furniture had been ing, up and to the house, had not moved into the moved, and and Ernest Jane There evidence that although had moved was the Peaks out. yelled that porch first on the Jane when the crowd arrived out of they come to the furniture and Peaks had move legal perfect had told she had a and that “she been house ac- right any force whatever to come in the house” to to use circumstances, ap- such complish these results. Under grown men amount of seven to move this small pearance the threats made and furniture, particularly view of parties, might have led rea- past relationship of the well large for group sonable to believe that this there man merely purpose some than to move the furniture. his only appellant, evidence not
There was substantial neighbor, Campbell, Mrs. wife, son, and their but also of house in and tu- approached that the seven men a loud injure Mr. making manner, swearing multuous threats to to According evidence, Peak. to this the men threatened certainly “kill” “hang” appellant. It is break fearful appellant been reasonable inference that must have telephoned because, request, his his wife injury at because help, and, he refused to act sheriff and asked when incorporated town, tele- located an she the house was within come to their police, chief of but he refused to phoned prosecution shows produced The evidence assistance. Appellant testified that brought gun that Jane scene. he saw one of the gun, crowd with another with an iron bar. produced
The defense also by- of threats made against Jane her and father, mother and there was evidence only days shooting a few before the Jane had her choked mother and threatened kill her.
There awas direct conflict over appellant whether the paid his premises. wife rent for the All admit that before appellant and his wife moved Sycamore to 12 Avenue, Jane paid and Ernest them $35 a month care for their child. grandparents had cared for the child Ap- from his birth. pellant and his agreement wife testified that the if was that stay Sycamore came to at 12 Avenue, the per $35 month payment should cease and that the per $35 month for the care of the child should be considered Jane rent. she con- testified tinued pay parents her $35 a month after came to live her, with and that they paid no rent. There was no record payments such kept by Jane.
There awas direct conflict as to paid whether Jane had appellant for his at services the store. Jane testified she first paid him per week, $35 per later $50 week for such ser- Peak denied receiving any vices. payments. Jane testified that she made payments cash, and admitted kept record was in the store payments. books of such She testified that the reason the transaction was so handled was because if her employee father get he would have to a Social Security card, that he had none, and did not want get one. Appellant, however, produced Security Social card which he had years. had for at least two
Jane many quarrels testified occurred between Ernest and her father, and that her father swore at and threatened Ernest on many occasions. Ernest testified that he had never heard him, they quarrelled. swear at had nor *19 As to the actual shooting, appellant testified that he was fearful that the men intended harm him and his He wife. testified, and story son, his is by corroborated and wife partially by Campbell, get Mrs. that he did not the shot- gun until he someone in the group pistol saw with outside one bar; another with an iron that the called him crowd vile names out; and dared him to come that threatened to beat up, hang him, just him kill him; and to that before shooting, the Epidendio Willie standing was the front beside pounding door door; yelled going— on the that Willie “I am you”; with that kill that son-of-a-biteh—to God damned you panel the door; of lower of that glass in the the kicked he could be seen door that all that drawn the so was over cúrtain ap- glass, in Willie legs; that when kicked Willie’s were fired onto shotgun away from Willie and turned the pellant at hit aimed did Willie and that he not want to porch; him; he not know Jane scare that did porch into the that walked coming up porch; on the then anyone. to hit fire; that he had not intended line of indicating purpose of for the This evidence is recited prose- stronger produced than evidence that that course, for credibility was, of of the witnesses cution. The purpose jury. But the above evidence recited for showing support in that there was substantial facts, defense, very one on case was close quoted majority opinion appearing that the statement circum- is not borne out Under above record. such significance. If stances, any error takes on added substantial reasonably reasonable committed, error is and if minds of the doubt whether it is the benefit prejudicial, differ over accused, and the case reversed. should be accorded at trial There another committed was serious error improper with limitation connection the unreasonable and placed by the trial court on the cross-examination house. group witness Miller. Miller one of the outside the was present- prosecution produce did not him as a witness ing Miller on Appellant its main testified that he saw case. porch hand, was one with an iron bar in his and that this group of the reasons he afraid to let the into the house. prosecution thereupon Miller called as a rebuttal witness. 1943, if, He was asked on the of November he morning premises Sycamore Larkspur. He was at the at Avenue response ques- had to another been, answered he porch premises tion stated that he had front been day. morning He then testified that at no time that did weapon he have iron other kind of in his hand an bar or possession. porch On cross-examination on the he testified that he was He minutes, for about fifteen and then left. house you everything you "then asked: “Tell me did from the time ’’ you permitted answer ~"‘got there until left. He was objection question, This trial that this court-siistaining - *20 918 beyond
was the scope direct of the A examination. objec like tion questions: was sustained to the you “What doing? you go What did there for?” questions
These were vital to the defense. The entire de predicated fense theory was on the that appellant was fearful life, given of his and one of the reasons was that Miller had porch come iron up on with an bar in his prose hand. The cution elected on Miller ’s direct ask ques examination to him placed tions that porch witness on the on day in ques opened question tion. That up the everything as to he did day. there on that- Under section 2048 of the Code of Civil right Procedure cross-examination, had on to examine the witness “as to facts in his direct stated ’’ examination or connected therewith. was People As held in v. Flores, 385, 15 Cal.App.2d P.2d : “A full [59 517] 401. cross-examination is not a matter privilege; of it is a matter ” right.’ (See, also, Proc., ‘absolute §1854, Code Civ. People Teshara, 633, ; People 141 636 v. Cal. P. v. [75 338] Mammilato, People Roach, 213 207, 58]; Cal. [142 139 Cal.App. 895].) certainly perti P.2d It was [33 inquire stay everything nent to about during Miller did his porch, why ap ascertain he had come. It was pellant’s against question word that of the vital witness on as to whether the had an iron in his witness hand. Cer bar tainly op should have been defense accorded fullest portunity porch to check the activities while on witness’ determining opportunity so that the have the could telling who the. truth. majority opinion sustaining holds that the of the ob-
jection quoted for question to the first above was not error “question might that the reason is rather broad call lengthy dissertation on irrelevant and immaterial mat- ” objection question. ters. of the No made to the form objection that it went ground was sustained on the sole beyond scope Nothing direct examination. porch Miller have done from his arrival on the could departure immaterial therefrom could irrelevant or on the sustaining vital As of the ob- issue under discussion. to the jection question you go “What did there for?” the appears opinion, majority “the answer . numerous states ... imply it is meant to that the times.” If statement Miller,' testimony appears answer times” “numerous misinterpretation it at no time testi- is a record. Miller If why gone morning. he had the Peak home fied majority opinion means that wit- statement group all went to the house to move nesses testified that record, has furniture, it is a correct statement of *21 relevancy point under Just because at all the discussion. no to an doing in purpose testified their witnesses have to several inquiry prohibiting not an that the court act, does warrant when a who is under examination purpose into the of witness Miller’s purpose is to the issue under discussion. that relevant great assault importance. If went there to he purpose was the there to appellant, fact that the others were move circumstances, the furniture would be immaterial. Under unwarranted, on the limitation cross-examination was was any and con- court, lawful discretion of the when within trial errors, the other a reversal. sidered with warrants court, my opinion, prejudicial The trial also committed majority error 1036 of the quoted page instruction on if opinion. By jury that that instruction court told they no appellant licensee, should find that then he had was a right “to exclude” “nor premises, Jane and from the he right any did have the prevent to use force or violence to them, entering together, or either of premises from said them, any assault deadly weapon with a the defendant Epidendio they, or Epidendio, said Ernest and Jane while entering them, attempting either of were to said enter the premises added.) together, justified(Italics not be would jury That is told By not the law. that instruction were they if Peaks licensees ten- that that the were and not found to premises, then, ants entitled the exclusive use of the under appellant circumstances force or could use violence prevent, entering, regardless Jane and that Ernest from of how sought right exercised, regardless of purpose was to be entry, that, circumstances, any of the such assault under justified.” appellant “would not be The basic committed presented shooting, jury issue to the was whether the justified. admitted, By were jury was this instruction was true, told that if found certain facts to then the assult be justified. only Inasmuch as issue before was this was jury, escape can conclusion there be no from the that such a jury instruction amounted to direction find the guilty he instruc- if found licensee. The defendant was disregards obviously incomplete completely tion right entry, exist, assuming the manner which the it to attempted exercised, disregards purpose was disregards completely the entire self- entry, defense of simple enough placed It would have been to have defense. proper proper in this present limitations instruction so as to jury. law to It is picture say no answer challenged jury properly was instructed on self-defense. The given immediately after instruction was the instructions I instructions, As read the the one under con- self-defense. sideration reads as if it were a limitation on the self-defense say least, may reasonably instructions. To have only believed that self-defense was if available obviously tenant, not if he This error licensee. prejudicial. my opinion
In view of these several errors it is judgment reversed, and appealed orders from should be a new trial ordered. petition
A 1944. rehearing was denied December Peters, J., rehearing. Appellant’s petition voted for a *22 hearing by Supreme December was denied Court hearing. Carter, J., J., Schauer, 1944. voted for Dist., 22, 1944.] No. 14360. Nov. Second Div. Two.
[Civ. KAUFFMAN, Estate CLEMENCE Deceased. KAUFFMAN, Estate of LEON E. Deceased. M. MEYBERG, LAZARE Appellant, LORRAINE K. KAUFFMAN, Respondent.