Summary
In People v. Fultz, 109 Cal. 258, 263 [41 P. 1040], the wife was asked if she were the wife and where she had resided on a certain date.
Summary of this case from People v. VillarinoOpinion
Department Two
Appeal from a judgment of the Superior Court of San Diego County and from an order refusing a new trial. W. L. Pierce, Judge.
COUNSEL:
Daney & Wright, for Appellant.
Attorney General W. F. Fitzgerald, Deputy Attorney General Charles H. Jackson, and M. L. Ward, District Attorney, for Respondent.
JUDGES: Vanclief, C. Searls, C., and Haynes, C., concurred. McFarland, J., Temple, J., Henshaw, J.
OPINION
VANCLIEF, Judge
The defendant was convicted of the crime of rape, committed upon his own daughter under the age of twelve years, in the county of San Diego, and was sentenced to imprisonment in the state prison for the term of fifteen years. He appeals from the judgment and from an order denying his motion for a new trial.
1. It is contended for appellant that the trial court erred in permitting the prosecuting attorney to challenge the juror Chambers for cause, for the alleged reason that no lawful cause for the challenge was shown.
The statements of the juror upon his examination warranted the court in finding that he had formed and still had the opinion that the defendant was not guilty; that such opinion was not based upon public rumor, common notoriety, nor statements of newspapers; that it would require considerable evidence to change that opinion, although he would try to act fairly and impartially in this case, and thought he could do so. While the statements of the juror were not very explicit and hardly self-consistent, they clearly tended to prove a state of his mind which would prevent him from acting as a juror in this case with entire impartiality and without prejudice to the rights of the people, and therefore justified the court in so finding, under the rule announced in People v. Wells , 100 Cal. 227.
2. Counsel for appellant contend that the court erred in restricting the defendant to ten peremptory challenges of jurors.
Such restriction was in strict accordance with the decision of Department One of this court in the case of People v. Clough , 59 Cal. 438, which was approved and adhered to by the court in bank in People v. Riley , 65 Cal. 107. It is urged, however, that those cases should be overruled, but without assigning any reason therefor which could have been overlooked or not considered by the court in those cases; therefore, I think the construction put upon section 1070 of the Penal Code in those cases should be adhered to until that section is changed by the legislature, although were the question res integra I would be inclined to concur with counsel for appellant.
3. It is claimed that the court erred in permitting testimony that the defendant on one occasion struck his wife, the mother of the prosecuting witness.
The only foundation for this objection appears in the testimony of Lizzie Fultz, the prosecutrix, and that of her brother, Fred Fultz, given under the following circumstances: On the cross-examination of those witnesses for the prosecution, the attorney for the defendant endeavored to show that the wife of defendant was hostile to him and favorable to the prosecution. On the cross-examination of Fred Fultz he testified that he had heard his mother and father quarrel lots of times. "I have heard my mother call my father bad names.. .. . I heard my mother call my father the devil once." On redirect examination by the district attorney the witness was asked and answered the following questions: "Q. You said one time you heard your mother call your father a devil; do you know what that was for? A. No, sir; I do not remember. Q. Had your father struck her before that? A. No, sir; I do not think he had struck her before. Q. When did he strike her then? A. After she had called him a devil." Objections to those questions by the district attorney, on the grounds of incompetency and irrelevancy, were overruled.
On the cross-examination of Lizzie Fultz counsel for defendant asked and she answered as follows: "Q. Do you remember your mamma saying anything bad about your papa to you? A. She called him a devil when he hit her." Thereupon counsel for defendant moved that her answer be stricken out as not responsive to the question. This motion was denied and defendant excepted.
Strictly, the question called for no further answer than yes or no; but supposing that she had so answered, and that counsel for defendant had not further asked her what bad thing her mother said about her father (which is very improbable), still it would have been relevant and proper for the district attorney, on redirect examination, to ask such further question, and also to ask what were the circumstances [41 P. 1041] or provocation under which her mother said such bad things about her papa, as he did in the case of Fred Fultz as above stated, and it is highly probable that he would have done so in the case of this witness. But, whether any further question touching the subject of that particular inquiry would have been asked by either party or not, the answer objected to was relevant to that particular subject, and was competent and material evidence, and the defendant could not have been injured by it; whereas the cause of the people and the reputation of defendant's wife might have suffered injury from the mere answer of the witness that she had heard her mother say something bad about her papa, without saying what it was, or stating any of the circumstances under which it was said. Besides, the mere opinion of the child witness that what her mother said was bad should not have been given without informing the jury what her mother said that was considered by the witness bad. On this ground the question itself was objectionable, and the mere answer it called for was inadmissible under a proper objection to it. The answer given, however, being relevant and competent evidence, was not subject to objection on the mere ground that it was not so; and there was no objection on the ground that the question was leading. Under these circumstances I think the court properly refused to strike out the answer of the witness.
If the foregoing under this head is correct, it also answers the objection to the testimony of Fred Fultz. On the redirect examination of this witness the district attorney was properly permitted to ask him to explain the circumstances under which his mother called the defendant a devil.
4. It is insisted that the court erred in permitting evidence of rapes and acts of lewdness, committed by the defendant upon and with his daughter, other than that charged in the information. But I think such evidence was properly admitted under the peculiar conditions of this case, to account for there having been no outcry and no pain suffered by the child, as she testified, when the particular act charged was committed; and also to account for the absence of laceration and the abnormal capacity of the vagina at the same time, as shown by the testimony of the physician who examined her person soon after the alleged commission of the act charged in the information; and, as it was important that the prosecution should account for the existence of these facts and conditions at the time, and immediately after the commission of the act charged, upon some other hypothesis than that of the innocence of the defendant, the evidence was admissible, even though it tended to prove the commission of other crimes than that for which the defendant was on trial. (People v. Lane , 101 Cal. 513; People v. Tomlinson , 102 Cal. 24.) It is true that it does not appear that the court instructed the jury that the evidence in question should be considered only for the purpose above stated, as would have been proper; but since it does not appear that the defendant asked for such an instruction, he is not in condition to complain of the omission here, and, indeed, does not complain of it, but broadly contends that the court erred in admitting the evidence for any purpose whatever.
5. Mrs. Margaret V. Fultz was called and sworn as a witness for the people, and after she had testified, without objection, merely that she was the wife of the defendant, and that she had resided at the place where and at the time when the crime charged was alleged to have been committed, the defendant and his attorney were asked whether or not they consented that she should further testify in the case; whereupon defendant's attorney expressly declined to answer, and instructed the defendant not to answer the question; yet the defendant answered that he did not consent; and thereupon the witness was withdrawn and testified no further.
It is insisted by counsel for appellant that the court erred in permitting the defendant to be asked whether he consented that his wife should testify; and also in permitting her to testify to the extent she did as to the place of her residence at the alleged time of the commission of the act charged, for the reason that such testimony corroborated and strengthened that of her daughter as to the alleged time and place of the commission of the crime. But the testimony of the defendant also corroborated that of the daughter, not only as to time and place, but as to many other much more material circumstances. There was no question or dispute as to the time or place. Further than this, I think that the bare statement of the questions under this head is a sufficient refutation of plaintiff's contention.
6. It is finally urged that the evidence is insufficient to justify the verdict of the jury.
Without stating the revolting details of the evidence, I think it enough to say that, if the jury believed the testimony of the daughter, corroborated, as it was, in respect to all material circumstances by the testimony of Arvilla Coats and the defendant, it was amply sufficient to justify the verdict, and that it bears upon its face the impress of truthfulness.
I think the order and judgment should be affirmed.
For the reasons given in the foregoing opinion the order and judgment are affirmed.