170 P. 170 | Cal. Ct. App. | 1917
Defendant was jointly indicted with his brother, Antone Pedone, Sr., and the latter's son, Antone Pedone, Jr., for the crime of murder, it being alleged that on the thirtieth day of November, 1916, at the city and county of San Francisco, they killed Gaetano Ingrassia. Defendant demanded a separate trial, which being duly had, the jury returned a verdict finding him guilty of murder in the first degree and fixing his punishment at life imprisonment. He now appeals from said judgment and the order denying his motion for a new trial.
The defendant testified at the trial in his own behalf and claimed that the deceased, being a stranger to him, was the aggressor in the encounter which led to his death, and that he, the defendant, took his life only in self-defense. On the other hand, the testimony introduced on behalf of the People showed that the deceased was without warning set upon by *454 the three Pedones, who were armed with pistols and a rifle, and was killed with these weapons, two of the wounds being received by the deceased after he was disabled and was lying prostrate upon the ground behind some chicken-coops in front of a grocery-store, where he had taken refuge.
There is no claim — nor could there be — that the evidence does not sustain the verdict. In fact, the record overwhelmingly shows that the deceased was brutally murdered, and that the defendant was guilty of the crime.
On direct examination the defendant gave his name as Joseph Pedone. On cross-examination the prosecuting officer, over the objection of defendant's counsel, was allowed to ask him if he had not at various times and different places been known by other names, to each of which questions he answered in the negative. It has been quite recently held by our supreme court that such cross-examination ordinarily is not proper (People v. Mohr,
In the Fleming case the defendant answered a similar question in the affirmative, and was compelled to make an explanation of why he had gone under an assumed name, which explanation brought out a circumstance which reflected discreditably upon him. That case, too, on the evidence was very close — unlike the present one — and grave doubt was entertained by the appellate court as to the defendant's guilt. It concluded, therefore, that it was only reasonable to infer that the explanation drawn from the defendant materially contributed to the verdict. For that and other reasons the *455 judgment was reversed. No such condition here exists and the act of the district attorney complained of does not constitute reversible error.
In his opening statement the prosecuting officer told the jury that the people hoped to prove that the defendant with his brother and nephew had entered into a conspiracy to murder the deceased, because "he had refused to pay them two thousand dollars that they had demanded of him as Black-hand money"; that it would be shown that the Pedones shortly before the homicide had caused to be sent to the deceased letters, in which it was stated that unless the deceased deposited at a certain place two thousand dollars a terrible tragedy would occur in his family, and that on the very day of the murder the deceased had received one of those letters, which was in his possession at the time of his death. At the time this statement was made defendant's counsel objected to it — without, however, assigning the making of it as misconduct — saying that the prosecuting officer knew that these letters were not admissible in evidence, and that they had been offered in evidence in the trial of one of the other persons charged with this crime held before another judge, and rejected. During the trial the letters were in fact offered in evidence, although not in the presence of the jury, and rejected for the reason that the people failed to show that the defendant either sent or caused them to be sent to the deceased.
We are unable to say that the prosecuting attorney acted in bad faith in making this statement to the jury of what he would show to them; but in any event, and whatever motive may have prompted the observation, we are satisfied that no substantial injury resulted to the defendant therefrom, for the court at once instructed the jury that the statement was not evidence; that they, the jury, as reasonable and intelligent men knew as much, but that if they did not they were so advised; and added, "You are instructed at this time that any statement of counsel is not evidence. Counsel is stating to you on behalf of the people the facts that he intends to prove, which by no means are to be considered by you men as having been proved."
Early in the trial of the case, and doubtless in order to establish a motive for the crime, the people introduced evidence tending to show that the deceased was a man of some *456 means, owning a piece of real property and having four thousand dollars on deposit in a bank; but upon it appearing that the prosecution was unable to prove that the deceased was generally reputed to be a man of wealth, or that the defendant knew anything about his financial condition, the court struck out this testimony and cautioned the jury to disregard it.
Another act of the prosecuting officer is argued in the defendant's brief as constituting misconduct, but little attention appears to have been paid to the matter at the time it occurred, and it was not assigned as such. In fact, none of the acts of the prosecuting officer now complained of as misconduct were so characterized at the time they occurred, and in every instance except the one just referred to the court struck out the objectionable matter, and of its own motion promptly and emphatically instructed the jury to disregard it.
It is well settled in this state that the defendant not having during the trial assigned as misconduct the acts now objected to, he must be deemed to have waived any objection thereto; and that even if he had made such assignment, the trial court having cautioned the jury as to its duty in the premises, it will ordinarily be presumed upon appeal that the jury followed the court's admonition, and that no prejudice, therefore, resulted to the defendant in the trial of his case.
In conclusion, it may be added that while we think the prosecuting attorney overstepped the bounds of strict legal propriety in some of the instances pointed out by the defendant, yet, as before stated, a review of the record satisfies us, particularly in view of the prompt action of the trial court in reference thereto, that neither the misconduct of the prosecutor nor the cross-examination of the defendant in respect of his being known by another name had any appreciable effect upon the jury in the consideration of their verdict.
The judgment and order are affirmed.
Lennon, P. J., and Richards, J., concurred. *457