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People v. McMillan

Court of Appeal of California, Third District
Nov 27, 1922
59 Cal.App. 785 (Cal. Ct. App. 1922)


Crim. No. 639.

November 27, 1922.

APPEAL from a judgment of the Superior Court of Humboldt County. Denver Sevier, Judge. Affirmed.

The facts are stated in the opinion of the court.

Thomas H. Selvage and E. S. Selvage for Appellant.

U.S. Webb, Attorney-General, and J. Charles Jones, Deputy Attorney-General, for Respondent.

The defendant appeals from the judgment of conviction herein of the crime of rape upon a girl of the age of fourteen years and from the order denying his motion for a new trial.

[1] Appellant contends that the court erred in denying defendant's challenge for cause interposed to one of the jurors on the ground of actual bias. The juror was subsequently challenged peremptorily by defendant. He thereafter peremptorily challenged other jurors and exhausted his ten peremptory challenges, but it does not appear that any juror who served on the trial was unsatisfactory to defendant. The facts are similar to those in the case of People v. Schafer, 161 Cal. 573, 576 [ 119 P. 920, 921], where it is said: "While the record shows that the defendant did subsequently exhaust his ten peremptory challenges, it does not appear that he had occasion or desire to use an additional peremptory challenge, or that each and all of the twelve jurors finally accepted and sworn were not entirely satisfactory to him. . . . This is not enough to warrant reversal for error in the ruling on the challenge for cause." To the same effect is the holding in People v. Kromphold, 172 Cal. 512 [ 157 P. 599]. In view of the authorities cited it is unnecessary to decide whether the ruling was error.

[2] The court sustained objections to evidence of defendant's reputation for truth, honesty and integrity and for peace and quiet. No element of force or violence was involved in the charge and no attempt had been made to impeach defendant as a witness. Appellant argues that, since the defendant squarely contradicted the testimony of the prosecutrix, the evidence offered was highly important to show that he was worthy of belief. The reputation of a witness for truth, however, cannot be supported by such evidence until it has been challenged by evidence produced by the party against whom he has testified. Evidence of his general reputation for traits of character involved in the charge against him may, of course, be given, but the evidence offered did not relate to such traits. The traits of character involved in a charge such as this are virtue, chastity and morality. ( State v. Snover, 63 N.J.L. 382 [43 A. 1059]; State v. Brady, 71 N.J.L. 360 [59 A. 6]; State v. Thompson, 58 Utah, 291 [199 P. 161].) Evidence of general reputation for peace and quiet is not admissible. ( Wistrand v. People, 218 Ill. 323 [75 N.E. 891]. See, generally, People v. Fair, 43 Cal. 138; People v. Burke, 18 Cal.App. 72 [ 122 P. 435]; People v. Romero, 58 Cal.App. 31 [ 207 P. 933]; People v. Thomas, 58 Cal.App. 308 [ 208 P. 343]; State v. Bloom, 68 Ind. 56 [34 Am. Rep. 248].) The court refused to give an instruction proposed by the defendant to the effect that evidence of the nature offered to establish the good character of defendant was pertinent to the issue of guilt or innocence. Under the foregoing authorities, it is clear that the ruling was not error.

[3] The court gave the following instruction:

"You are instructed that it is your province to determine the weight and credibility to be given the testimony of a female upon whom it is alleged in an information that a rape has been committed, and who testifies to the facts and circumstances of such rape as of any other witness testifying in the case. And if such testimony creates in the minds of the jury a satisfactory conviction and belief, beyond a reasonable doubt of the defendant's guilt, it is sufficient of itself without other corroborating circumstances or evidence to justify a verdict of guilty of rape upon the trial of the case. If this were not the rule, it is quite clear that many offenses of this character would go unpunished."

With the exception of the last sentence thereof, the instruction has been often approved and it correctly states the law. The last sentence is not a statement of law but of a mere commonplace, or truism within the knowledge of all jurors. The district attorney, in his argument to the jury, doubtless made the same statement and its truth is self-evident. While the statement may be said to be argumentative, it is highly improbable that any juror was influenced thereby.

The judgment and order are affirmed.

Burnett, J., and Hart, J., concurred.

Summaries of

People v. McMillan

Court of Appeal of California, Third District
Nov 27, 1922
59 Cal.App. 785 (Cal. Ct. App. 1922)
Case details for

People v. McMillan

Case Details

Full title:THE PEOPLE, Respondent, v. JOHN McMILLAN, Appellant

Court:Court of Appeal of California, Third District

Date published: Nov 27, 1922


59 Cal.App. 785 (Cal. Ct. App. 1922)
212 P. 38

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