300 P. 150 | Cal. Ct. App. | 1931
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *369 The appellants were jointly charged by an information filed by the district attorney of San Bernardino County with the crime of burglary, alleged to have been committed on or about the twenty-seventh day of November, 1930, by entering the dwelling-house of John S. Gemberling, and stealing and taking personal property therefrom. The jury returned a verdict finding the appellants guilty of burglary in the second degree. Their motion for a new trial was denied, and this appeal is taken from the order denying their motion for a new trial and from a judgment pronounced upon them.
The evidence before us shows that John C. Gemberling owned a dwelling-house on "F" Street in the city of San Bernardino, California, in which he resided. At about 9 o'clock on the morning of November 27, 1930, which was Thanksgiving Day, he left his residence for the town of Etiwanda where he had dinner with relatives, returning to his home on the evening of the same day. Before leaving his house, Gemberling closed and locked all of the exterior doors and windows. There was a screened porch on the rear of this house which was entered through a screen door. One door and two windows opened from the house on to this screened porch. One of the windows was so constructed that it could not be opened, and the other window was of the type commonly known as a French window, which was fastened by a catch on the inside. The back door of the house was *370 locked with an ordinary door lock, and in addition was fastened on the inside with a bolt which slid into a socket on the casing.
Shortly after noon on November 27, 1930, some of Gemberling's neighbors observed a small automobile, which was subsequently identified as belonging to and driven by appellant Sellas, standing on the driveway to the rear of the Gemberling house. Those neighbors saw the appellants taking bedding, a radio, a radio stand, a floor lamp and other household goods from the Gemberling house and load them into the automobile, going to and from the house through the screen door and rear door of the house. When the appellants had driven away in their automobile with the household goods they had taken, Mrs. Schaffer, a next-door neighbor of of Gemberling's went over to his house to investigate their activities. She found one pane in the French window broken out, the window unlatched and opened, and the back door of the house unlocked and opened, and the house in complete disarray. The floors were littered with broken dishes and other personal effects. The radio, radio stand, a floor lamp, a number of dishes, considerable silver, household goods, some bric-a-brac, and all the bedding from two beds in the house had been removed. She immediately called the San Bernardino city police, who, upon arriving at the Gemberling house locked it up and departed, Mrs. Schaffer returning to her own residence. Shortly thereafter the appellants returned to the Gemberling house and attempted to enter through the rear door which they found locked. Mrs. Schaffer again went to the Gemberling house and prevented appellants from entering in. They left and the police were again called. The appellants returned to the house within a few minutes and were placed under arrest.
A search of a small house rented by appellant Sellas resulted in the discovery of practically all of the personal property taken from the Gemberling home. Some few of the stolen articles were, however, not recovered.
The defense interposed by appellants was a novel one. They admitted entering the Gemberling house but maintain that they only removed the personal effects belonging to appellant Farquhar. They testified that they first met Gemberling on or about November 12, 1930, when they went to his house together to interview him about the employment of *371 Mrs. Sellas as his housekeeper. According to their version of the affair this visit resulted in Gemberling employing Mrs. Farquhar as his housekeeper and companion. They testified that their visit resulted in the two remaining at the Gemberling house almost continuously four days and nights where, with Gemberling and another man, they engaged in a riotous, drunken and immoral "party". Mrs. Farquhar testified that she continued her residence with Gemberling as housekeeper and companion until the morning of Thanksgiving Day, when she became tired of her relations with him and determined to break them off and move from his house. Both appellants testified that Gemberling was a man of low habits and a degenerate. They produced a number of witnesses whose testimony tended to give color to their story. However, the jury, by its verdict, refused to give credence to the testimony offered by the appellants. Without detailing the evidence, it appears from the record that the many serious contradictions and inconsistencies in the evidence of appellants and of their various witnesses is sufficient to throw serious doubt upon their credibility.
A number of the close neighbors of Gemberling were called as witnesses by the respondent. They thoroughly contradicted the testimony of appellants and refuted the theory of their defense. None of these witnesses had seen either of the appellants at the Gemberling house, nor had any of them seen or heard anything that would indicate that any drunken and immoral "parties" occurred there during the month of November, 1930. If the stories of the appellants were true it would seem strange that some of these neighbors would not have seen either or both of the appellants at the Gemberling house, and heard the noise made by the continual debaucheries that appellants testified were occurring there.
[1] Appellants urge as a first ground for reversal of the judgment that the evidence shows that during the time of their entering the Gemberling house they were so intoxicated that they were not capable of entertaining an intent to steal. Both appellants were witnesses in their own behalf, and their testimony is a complete answer to this contention. They detailed with great particularity their activities on November 27, 1930, and were able to remember and clearly state where they claimed to have been and what they maintained they did during the entire day. Their evidence shows that though *372 they had been drinking during the early morning, the liquor they had consumed had not clouded their minds to any material extent.
[2] After the close of appellants' case respondent, over their objection, was permitted to introduce evidence of the general reputation of Gemberling in the community in which he lived for truth, honesty, integrity and morality. The action of the trial court in overruling their objections to these questions and permitting the introduction of this evidence is assigned as error by them.
An examination of a number of California cases bearing upon the question of the right of a party to bolster up the testimony of one of his witnesses by evidence of good reputation for truth, honesty and integrity where the opposing party has not directly attacked such reputation, leads us to the conclusion that evidence upon such traits of character should not have been admitted in this case.
In the early case of People v. Ah Fat,
In the case of People v. Amanacus,
These cases were both reviewed and cited in the case of TitleIns. etc. Co. v. Ingersoll,
"Defendant offered evidence in support of his character as to truth, honesty and integrity, and over the objections of plaintiff that no attempt had been made to impeach the character of defendant, and that the evidence was incompetent, irrelevant and immaterial, defendant was allowed to introduce the evidence of three witnesses to the effect that his reputation in the respects mentioned was good. As a *373
matter of fact, no impeachment of the character of the defendant had been attempted, other than such impeachment as was involved in the production of evidence contradicting that of the defendant on some of the issues in the case in some minor respects. This evidence, really offered for the purpose of bolstering up the evidence of defendant, was, in our opinion, clearly inadmissible. Our statute provides: `Evidence of the good character of a party is not admissible in a civil action, nor of a witness in any action, until the character of such party or witness has been impeached, or unless the issue involves his character.' (Code Civ. Proc., sec. 2053) The issue in this case did not involve the character of defendant as a party (see Van Horn v. VanHorn,
In People v. Bush,
In Van Horn v. Van Horn,
In the case of People v. Frank,
In the case of People v. McMillan,
Applying the rules which we find indicated in the foregoing decisions we believe that the evidence of the good reputation of Gemberling for truth, honesty and integrity was clearly inadmissible under any theory. His character, as far as these traits relate to it, was only put in issue by the evidence of other witnesses which squarely contradicted his testimony as to the relationship existing between himself and appellants, and particularly Mrs. Farquhar. Such a contradiction of testimony has never been held sufficient to permit a party to attempt to support the testimony of his witness by proof of his good reputation for truth, honesty and integrity.
The only attempt to attack Gemberling's character was by evidence indicating his lack of morality and his degeneracy which traits were not directly relevant to the issues of the case. If we should attempt to justify the introduction of the evidence of Gemberling's good reputation for morality, it would have to be under the earlier decisions of the Supreme Court, holding that such evidence was an attack on his character upon a matter not relevant to the issues of the case, and in accordance with the holding in the case of People v. Ah Fat, supra, where the court said: "There was no error in the admission of evidence of the character of the witness Gilman for truth and veracity. The evidence was authorized by the preceding testimony of the defendant's witness, Dole. If this testimony had been directed to mere proof of contradictory statements of Gilman upon matters relevant to the issues being tried, the propriety of evidence of character to sustain Gilman's testimony would have been, to say the least, questionable, although authorities may be found in support of its admissibility. (Greenleaf on Ev., sec. 469, and note 4.) But Dole's testimony went further than this. The conversation narrated by him was upon matters *377 entirely irrelevant to the issues, and could have had no other effect than to induce the belief in the minds of the jury that Gilman was a suborned witness and unworthy of credit. It was as effectual an attack upon his character for truth as if his reputation in this respect had been assailed by direct inquiries; and we can see no good reasons for allowing proof of good character in the latter case, that does not apply as well in the case before us."
[3] Appellant Gladys Sellas complains of the modification of one of her proposed instructions by the trial court. As given it was as follows: "Even though the jury may believe from the evidence that the chattels in question were taken from the said J.C. Gemberling contrary to his will and without his knowledge, still if you find from the evidence beyond a reasonable doubt that the defendant Gladys Sellas, did not intend to steal said property, but in good faith believed that she was assisting the defendant, Stella Farquhar, in obtaining property that rightfully belonged to her, then the jury should acquit the defendant Gladys Sellas."
That this instruction as given is not a correct statement of the law is clear, as the jury was not required to find beyond areasonable doubt that Mrs. Sellas did not intend to steal Gemberling's property in order to acquit her.
In several other instructions the court correctly instructed the jury that the burden of proving appellants guilty beyond a reasonable doubt rested upon the People; also that the appellants were both presumed to be innocent until proven guilty beyond a reasonable doubt, and that this presumption of innocence was to be considered as evidence in favor of each of the defendants, and was sufficient to acquit each of them of the crime charged unless it was removed by credible evidence that convinced the jurors to a moral certainty and beyond a reasonable doubt of the guilt of each of them.
[4] Mrs. J.L. Manning, a sister of one of the appellants, was called as a witness in her behalf. Without laying any proper foundation therefor, a witness for the People testified to a conversation with Mrs. Manning which contradicted certain of her evidence and tended to impeach her. Appellants objected to the questions propounded by the district attorney to this witness on the ground that the evidence sought was irrelevant, incompetent and immaterial, but did not object on the ground that no proper foundation had been *378
laid. In 8 California Jurisprudence, 517, the following rule is laid down: "It is a general rule that an appellate court will not consider objections to the admission of evidence, unless the precise ground of objection was clearly specified in the trial court. The efficacy of an objection, as a general rule, depends upon the precision with which it is made. And a party cannot be permitted to abandon the ground of objection taken below and assume another one upon appeal. The defendant is deemed to have waived all grounds of objection not stated by him." This rule finds support in the cases of People v. Hickman,
[5] Appellants further complain of a statement made by the district attorney in his argument to the jury. When objection was made to it, it was promptly stricken out by the trial court, and the jury instructed to disregard it. This effectually cured the error, if any.
[6] It remains for us to determine whether or not the errors occurring in the trial of this case are sufficiently prejudicial to warrant its reversal here under the provisions of section 4 1/2 of article VI of the Constitution. In the case of Rodetsky
v. Nerney, supra, the duty of the appellate court, under the provisions of this section of the Constitution is defined as follows: "It is not within our province nor can we from the record weigh the testimony or determine the credibility of witnesses, we not having before us all the facts which appeared to the jury, many of which, due to their nature, cannot be recorded; but we are required to do so to the extent possible. (Hirshfield v. Dana,
An examination of the entire and voluminous record in this case leaves us with a fixed opinion of the guilt of both of the appellants. The means used by appellants to break into and enter the house was evident. Credible and disinterested witnesses saw them removing articles of personal property from the Gemberling house which property a number of these witnesses thoroughly identified as belonging to Gemberling. A number of these articles were found in the *379 possession of appellants. The stories of appellants and their witnesses fail to produce conviction of truth, or to raise any doubt of the justness and correctness of the verdict of the jury. Under these circumstances we are of the conclusion that the errors complained of have not resulted in any miscarriage of justice, and that we are prohibited by the provisions of section 4 1/2 of article VI of the Constitution from reversing the judgment of the court below.
The judgment and order appealed from are affirmed.
Barnard, P.J., and Jennings, J., concurred.