In People v. Graham, 21 Cal. 261, 266, it is said: "If the court decides correctly in rejecting the testimony, it is not important whether the best objection was made, or whether any objection was made."Summary of this case from Careaga v. Moore
[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] Rehearing Denied 21 Cal. 261 at 267.
Appeal from the Court of Sessions of Sonoma County.
The defendant was indicted in Sonoma County for an assault with intent to commit a rape upon a girl six years of age. After pleading not guilty, he applied for a change of venue, and in his own affidavit stated that he could not have a fair and impartial trial in Sonoma County on account of the bias and prejudices of the citizens against him; that within a short time before the time fixed for trial some thirty or forty persons had subscribed each a small amount for procuring a lawyer to assist the District Attorney in the prosecution; that these persons were citizens of different parts of the county; that the subscription papers had been widely circulated, and that from the funds thus raised an attorney had been employed. The affidavits of two other persons were also presented corroborating that of defendant as to the circulation and signing of the subscription papers. The Court denied the application, and defendant excepted. On the first trial of the case the jury disagreed. On the second trial the child upon whom the assault was alleged to have been committed was called by the prosecution as a witness, and was objected to by defendant as not having sufficient capacity to testify, upon which she was questioned at considerable length by the Court with a view of ascertaining her competency, and her answers showed very little intelligence and scarcely any appreciation of the obligations of a witness. The objection to her competency was overruled and defendant excepted. In answer to questions by the prosecution, she then said that she knew defendant; had seen him at her house, and recollected the last time she saw him there, and knew what he did. She was then asked what he did do there that day, but without answering this question she burst into a paroxysm of crying and was withdrawn.
The mother of the child was also called as a witness for the prosecution, and having stated that she had been absent from her house a short time on the morning of the alleged assault, and that on returning she had found the girl crying, and had examined her clothes and person, the appearance of which she described, and saying, in substance, that the appearances were such as showed that the defendant had committed the offense charged, was asked by the District Attorney this question: " Didthe child tell you how this occurred at the time?" To this question defendant objected on the ground that it was hearsay, and also that the answer would, even if given by a simple affirmative response, necessarily indicate the nature of the declarations of the child. The Court overruled the objection, and defendant excepted. The original record as it stood at the time the first opinion was rendered by the Court, did not show that any answer was made to this question, but after the rendition of that opinion an amended transcript was filed, showing that the witness did answer to the question " Yes, sir," after which a rehearing was granted, and the second opinion delivered reversing the judgment. The other facts necessary to explain the points decided are sufficiently indicated in the opinion of the Court. The jury found the defendant guilty, and a motion for new trial having been made and denied, he was sentenced to twelve years' imprisonment. From the order denying a new trial, and from the judgment, defendant appeals.
I. The motion for a change of venue should have been granted. The case is preciselylike that of The People v. Lee, (5 Cal. 353) except as to the number of citizens who united to employ counsel to prosecute the defendant. In this case the number shown is some thirty-five or forty; in the case of Lee, about one hundred.
II. The following question asked the witness Elizabeth Jane Hickle by the prosecution, to wit: " Did the child tell you how this occurred at the time?" was improper, and the defendant's objection to it should have been sustained.
1. The declarations of the injured party are never admissible as evidence unless she has testified in the case. (Wharton's Am. C. L. 3d ed. 306; 2 Russell on Crimes, 751; 1 Id. 6th Am. ed. 658; People v. McGee , 1 Denio, 21; Johnson v. State, 17 Ohio, 593; Guttridge's case, 9 C. & P. 471.)
2. Even had the injured party in this case been examined as a witness, still this question was inadmissible under the rule excluding the particulars of the complaint made, etc. The witness had just completed her narrative of the condition she found the child in, the appearance of her clothes, the injuries, marks, etc., found upon her, and then comes the question " Did the child tell you how this occurred?" Howwhat occurred? Why, how everything occurred that she had just related in her testimony concerning the child.
III. The Court erred in admitting the child to be sworn as a witness in the case. The examination showed her wholly wanting in every requisite of competency. (1 Phillips Ev. with Cowen & Hill and Edwards' Notes, 11-14.)
It will not do to say that the defendant could not have been prejudiced by this error, because the witness was removed from the stand before she testified to the merits of the case. Anything or any proceeding which was calculated to operate upon the sensibilities and sympathies of the jury, and influence their minds against the defendant, was prejudicial to him; and that the placing of this child on the stand before them as a witness was calculated to produce that effect, is a fact that every person possessing the ordinary feelings of human nature must admit, and that this, together with the scene that followed, did produce that effect in an eminent degree, is a fact equally apparent; and it would seem from the record that this effect was the only object sought by bringing the child into Court on this second trial.
IV. The question put to the physicianby the defendant was competent in any view of the then state of the case, and should have been allowed. The evidence already given showed a certain injury to the person of the child, and was intended and calculated to impress upon the jury that it had been made in a particular way, totally inconsistent with defendant's innocence. It was unjust not to allow him to show that the particular injury could not have been made in the way indicated, because if so other injuries which did not in fact exist would necessarily have been produced. Further, the objection of the prosecution was general--no point or cause of objection stated--and should therefore have been overruled. (Kiler v. Kimball , 10 Cal. 268; Martin v. Travers , 12 Id. 243; Dunning v. Rankin , 19 Id. 643.)
V. The instructions given by the Court were erroneous, and those asked by defendant were improperly refused.
L. D. Lattimer, for Appellant.
Attorney-General, for Respondent.
JUDGES: Norton, J. delivered the opinion of the Court. Field, C. J. and Cope, J. concurring.
On rehearing, after the filing of the amended transcript as shown in the statement of the case, Norton, J. delivered the following opinion. Field, C. J. and Cope, J. concurring. In deciding this case we stated that the ruling of the Court below, allowing evidence to be given of the statements made by the child who had not testified, was erroneous, but that this error was not of a character to require a new trial, because it did not appear that the witness answered whether the child did or did not tell her anything. It appears now, by an amendment of the record, that the witness answered in substance that the child did tell her how the matters occurred which the witness had just testified about. It is impossible not to see that the effect of this answer, taken in connection with the immediately preceding testimony of the witness, was the same as if the witness had detailed what the child said. This not only may have had, but in all probability did have an influence upon the jury injurious to the defendant. For this error the judgment must be reversed.
In our former decision we stated that it was not clear that a certain fact offered to be proved by the physicians was material. Considering the testimony which had been given on behalf of the prosecution we were not prepared to decide that this fact was immaterial if the proper preliminary facts were proved or admitted, and as this case is going back for a new trial we deem it proper to say that this remark should not be allowed by the Court below a bearing beyond its language. In criminal cases especially care should be taken not to exclude testimony in behalf of the accused upon doubtful grounds.
Judgment reversed and cause remanded for a new trial.