Opinion
Hearing Granted by Supreme Court Dec. 3, 1928.
Appeal from Superior Court, San Bernardino County; Chas. L. Allison, Judge.
Louis C. Barrett was convicted of permitting his wife to remain in a house of prostitution and of pimping, as a fourth felony offender, and he appeals. Affirmed. COUNSEL
H. Wenzlaff, of Santa Ana, for appellant.
U.S. Webb, Atty. Gen., John L. Flynn, Deputy Atty. Gen., and Warner I. Praul, of Los Angeles, for the People.
OPINION
YORK, J.
This is an appeal from a judgment of conviction of appellant on two counts of an information, one charging that he permitted his wife to remain in a house of prostitution, and the second count on which he was convicted was on a charge of pimping. He was further charged in the information with having been theretofore convicted of three felonies. The jury found the defendant guilty on both counts, and also found that it was true that the defendant had been convicted of three prior felonies. Defendant also appeals from the order denying his motion for a new trial.
The first objection as to the sufficiency of the evidence with reference to the three prior felonies is answered by the opinions filed in this court in the recent cases of People v. Carrow, 270 P. 379, and People v. Bigelow, 270 P. 460. In this case the defendant testified fully as to his having been convicted of three prior felonies, and, in addition thereto, exemplified copies showing such convictions were filed. As to one, the date of conviction was incorrectly stated in the complaint in that it was alleged to be on or about or before the 3d day of January, 1918, when the correct date was March 21, 1918; but it becomes immaterial, in view of the testimony of the defendant himself, admitting the three prior convictions.
As to the charge of permitting his wife to remain in a house of prostitution, it seems to be the impression of the defendant that to sustain such a charge there has to be proof that it was a common house of prostitution, where several prostitutes were engaged in such business. There is proof in this case of a large number of acts of prostitution committed on the particular premises by the wife of the defendant, prior to the date the offense was charged, thus making the two rooms so used a place of prostitution, regardless of what use was made of the rest of the place, known as the Kentucky Rooms, and there is evidence that these were all committed within appellant’s knowledge, and there is evidence that they were each engaged in at his solicitation and upon his demand. Also there is evidence that the proprietor of the house known as "Kentucky Rooms," in which the apartment occupied by appellant and his wife was located, knew that the apartment was being used as a place of prostitution. This evidence, if believed by the jury, was sufficient to establish the character of the apartment, but not necessarily the entire house, as a house of prostitution, within the meaning of the statute (Pen. Code, § 266g), and therefore it was unnecessary to instruct the jury that in order to convict defendant on the first count they must find as a fact "that the said Kentucky Rooms was a house of prostitution," or "that it was one of the essential elements of the crime charged, and that the defendant had a right to have the jury determine whether the Kentucky Rooms was or was not a house of prostitution." The instructions that were given fully covered the only controversy involved, in view of the whole testimony introduced, and the court was justified in refusing to dismiss the first count of the information on motion of the defendant, which motion was predicated upon the claim that "there was no proof that the said Kentucky Rooms was a house of prostitution."
As to the objection of appellant with reference to the refusal of the trial court to allow the attorney for appellant to ask a certain juryman as to his business or occupation, the court called the attention of the attorney to the fact that it was not a ground for challenge, presumably meaning that it would not tend to prove some fact material to a challenge for cause. No further attempt was made by the attorney for appellant to ask any of the prospective jurors any other questions as to their qualifications or disqualifications. There is nothing in the record from which this court can determine that the defendant was in any way prejudiced by the refusal of the trial court to allow the single question as to the business or occupation of the juror.
The judgment and the order appealed from are affirmed.
I concur: CONREY, P. J.
HOUSER, J.
I dissent. However, my objection to the conclusion reached by the majority of the members of this court relates exclusively to the subject-matter last treated in the majority opinion herein. With reference thereto, the specification of error presented by appellant is that:
"The court erred in denying defendant’s counsel the right to interrogate the prospective jurors on their voir dire examination with competent questions, or any questions, to ascertain the fitness and qualifications to act as jurors in said cause, and as a result defendant was denied his constitutional and lawful right to a trial by a fair and impartial jury."
From the record it appears that, after the case had been called for trial, the roll of the jurors was called. Thereupon all the jurors were sworn to answer questions touching their qualifications "to act as jurors." At that time the names of no jurors had been drawn by the clerk, nor had any of the jurors been called into the jury box, but the entire panel was both sworn and examined collectively, solely with a view to determine whether any right to a challenge for cause existed as to any of them. After the trial judge had finished with his examination of the jurors, the names of 12 of them were called by the clerk of the court. Presumptively they then took their proper places in the jury box. Thereupon the judge made the statement:
"You may examine upon any matter not covered by the court’s examination."
After the trial judge had directly refused defendant the right to inquire as to the business or occupation of the several jurors, and had informed defendant’s attorney that "they are qualified jurors, regularly on the term panel, all of them are qualified to act as jurors, ***" and in answer to a question by defendant’s attorney in substance had stated that theretofore all of the jurors had "acted as jurors in criminal cases," the jury was "passed for cause" by respective counsel.
Section 1078 of the Penal Code provides as follows:
"It shall be the duty of the trial court to examine the prospective jurors to select a fair and impartial jury. He shall permit reasonable examination of prospective jurors by counsel for the people and for the defendant."
In the case of People v. Edwards, 163 Cal. 752, 127 P. 58, after a review of the authorities, it is held that no statutory authority exists in this state which gives the right to a defendant to examine a juror on his voir dire, solely for the purpose of determining whether a peremptory challenge may be exercised upon him. To the same effect are People v. Riordan, 79 Cal.App. 488, 250 P. 190, and Zolkover v. Pacific Electric Ry. Co., 81 Cal.App. 772, 254 P. 926. It is therefore manifest that the language of section 1078 of the Penal Code, which, after an examination by the "trial court" or "prospective jurors," permits "reasonable examination of prospective jurors" by counsel for the defendant, can refer or apply to nothing other than those subjects which may furnish legal ground for a challenge for cause. By the terms of the statute and by judicial determination the only limitations upon the examination of jurors by a defendant are that the examination must be "reasonable," and that it be with reference to statutory grounds for the exercise of a challenge for cause. In the instant case, as hereinbefore stated, after the "trial court" had examined the entire panel collectively, the statement was made that "you may examine upon any matter not covered by the court’s examination."
Assuming that the examination conducted by the trial judge fairly covered the statutory field of subjects constituting a basis for a challenge for cause, the defendant was precluded from ascertaining the correctness of any of the answers necessarily inferred as having been given by any juror to questions propounded to him by the trial judge. A general, assumed, answer of "yes" or "no" to a broad, comprehensive question might not have constituted a fair test of the qualifications of the "prospective juror," and yet by the order of the court defendant was effectually prevented from asking any question or questions which, for example, might definitely have determined the actual prejudice of such juror against the defendant, or the bias of such juror in favor of the prosecution. While it may be that the scope of the examination permitted to a defendant may be reasonably controlled by the trial judge, to my mind the fair construction of the statute does not admit of an order by the trial judge excluding any examination whatsoever-which is the effect of the order in the instant case. It is manifest that a rule providing that, after an examination by the trial judge of prospective jurors, no examination by counsel for defendant would be permitted, might result in hardship and the denial of a fair trial to a defendant. By a mere paraphrasing by a trial judge of the words of the statute relating to challenges for cause, the examination of prospective jurors by defendant might be absolutely prevented. Considering constitutional and statutory provisions, and viewed solely from a legal standpoint, I doubt that defendant had a fair trial.
No point is raised by appellant regarding the propriety of examining the entire jury panel collectively and before the jury box has been filled by jurors whose names have been regularly drawn by the clerk from the trial jury box. I wish, however, to take this opportunity to express my personal disapproval of such a course. No authority exists for the procedure adopted by the trial court. It is manifest that such a practice is open to many objections, and might easily lead to the selection of a jury by which neither of the parties would be accorded a fair trial. Until such time as the procedure may be amended, so as to legally provide for such a course, it would conduce to less likelihood of judicial error being committed by the trial court if the prescribed procedure were followed. In People v. Estorga, 267 P. 589, this court held, in effect, that where the court made no examination of the jurors, other than by questions addressed to the members of the panel before any jurors had been drawn for the case on trial, the examination so made by the judge was not the examination contemplated by section 1078 of the Penal Code.
However, as the Supreme Court has transferred the cause for hearing in that court, it seems inadvisable to volunteer another definite ruling on that point at this time.