People v. Peete

Defendant, who was charged with the murder of Jacob Charles Denton, alleged to have occurred on or about June 2, 1920, in Los Angeles County, was convicted of murder in the first degree and sentenced to life imprisonment. She appeals from the judgment and from an order denying her a new trial.

Defendant did not take the witness-stand in her own behalf. No eye-witness to the tragedy was produced. There was no direct evidence of the killing of Denton. Nor was there any direct evidence connecting the defendant with the homicide. The evidence tending to show that Denton had been murdered and defendant’s connection therewith was wholly circumstantial. The record here is very voluminous, covering more than 2,000- pages. The following is a bare outline of a few of the outstanding features of the case, sufficient, however, for an understanding of the points presented for our consideration.

Denton, a man of considerable means, owned a somewhat pretentious residence in the city of Los Angeles, of which he seems to have been the sole occupant immediately preceding its lease to defendant, who, in the latter part of

Hearing nothing of her uncle for some time following his disappearance about June 1, 1920, and being anxious about him, Mrs. Paul Aument, Denton’s niece, on several occasions during the period that defendant was the occupant of the Denton home made inquiries of the latter, asking her if she had heard from the uncle or knew aught of his whereabouts. Similar inquiries were also made by Mr. Aument, the niece’s husband. In response to these inquiries defendant vouchsafed a number of plausible explanations to account for-Denton’s disappearance, all of a character calculated to quiet the anxieties of Denton’s relatives. ■

On September 23,- 1920, a Los Angeles attorney, "employed by Denton’s daughter, who then was residing in Phoenix, Arizona, began an investigation of Denton’s disappearance. This attorney and a private detective whom he had employed to assist him made an examination of Denton’s house in Los Angeles—the house that had been leased to defendant in the latter part of May. Upon examining the premises their attention was attracted to the door of a closet or crypt under the staircase in the basement. Two boards had been nailed across the face of the door and the nails driven in as though done by hammering in a clumsy manner. At the foot of the stairway was a pile of dirt. In front of the door stood a phonograph box containing bottles. Upon prying off the door they found in the closet a mound of earth about two feet high. On this mound were several pieces of stove-pipe and pieces of board. Their removal disclosed a white canvas. This they proceeded to pull off. The canvas was stuffed around the mound in such a manner as to cover it completely. Underneath the canvas was a pile of dirt in the shape of a grave, about two feet in height, almost completely covering the floor of the small closet. Obtaining a shovel, the detective dug into the mound and uncovered a foot—

Upon the return of Dr. Wagner, he and Dr. Webb held another autopsy at which X-ray photographs were taken. These disclosed some dark bodies in the region of the neck, indicating the presence of metallic substances. A dissection of the neck showed that one of the vertebrae had been broken, and that the broken particles of bone were lodged in the tissue. A small opening at the base of the skull was also found. The tissues were swollen. There was evidence that the vertebral artery had been ruptured and the spinal cord severed. This, according to the evidence given by witnesses .for the prosecution—medical experts and others—was due to a bullet which had hit on the side of the vertebra and evidently had passed through. Such a gunshot wound, these medical witnesses testified, would cause instant death. Dr. Wagner testified that the aperture in the neck was about the size made by a 32 or 38 caliber bullet, and stated that in his opinion the cause of death was a gunshot wound through the neck. He further testified that it was impossible to tell how long the corpse had been in the grave where it was found in the basement of the Denton home. He said that there was a constrie

Following its removal to the undertaking establishment, the body and the clothing in which it was found were examined by Denton’s relatives and others who had known him in his lifetime. On the body was a shirt on which was a private monogram consisting of the letters' “J. C. D.” Paul Aument identified the shirt as one that belonged to Denton, stating that the initials “J. C. D.” had been made by a rubber stamp that had been in Den-ton’s possession. The belt buckle found on the body and bearing the initial “D,” the witness had seen many times on the person of Denton, to whom it had been given by his niece, Mrs. Aument. Paul Aument also identified the trousers worn by the deceased by a pin stripe running through the cloth. He also testified that he had many times seen on Denton’s right hand the ring that was found on the body. This ring, he testified, had been enlarged and reconstructed partly with gold from the wedding ring of Denton’s wife, and from Denton’s mother’s ring. The witness also identified the body by a gold tooth. A laundryman, who had taken the laundry from Denton’s home, testified that the mark “H. J. IT.” on the shirt that was found on the 'body was the laundry mark that had been placed on the shift for the purpose of identifying Den-ton’s laundry. Other witnesses who had known Denton in his lifetime identified the body as that of their old-time friend.

Upon several occasions prior to the return of the indictment against her and prior to her formal arrest on the charge of murder, defendant made statements to the authorities respecting certain phases of the baffling mystery arising out of Denton’s unaccountable disappearance. On one of these occasions, at a ranch in an adjoining county, on October 4, 1920, a deputy district attorney, in the presence of a shorthand reporter and others, propounded a number of questions to defendant respecting certain aspects of the ease. These questions were freely answered by her.

Appellant contends that because she stated in one of these declarations that she had seen Denton alive as late as July 24th, and because this statement as to the date when she last saw Denton was not directly contradicted, the jury was not warranted in finding that Denton died at an earlier date—at a date more in keeping with the prosecution’s theory of the case. The jurors were under no obligation to believe any particular part of defendant’s unsworn declaration. In so far as its inconsistencies and chimerical statements constituted a self-woven web in whose meshes she had inextricably entangled herself, the jury might consider her declaration as self-incriminatory; but they were under no obligation to accept any part of it as true.

The evidence as to the date of the demise is conflicting. The evidence was, as we have stated, wholly circumstantial, and the date as fixed in the indictment, June 2, 1920, seems to accord more persuasively with the prosecution’s theory of the case than would a later date. There are several circumstances in the case, not necessary to be enumerated, that point to June 2d as the date when the man whose body was found in the crypt in the basement of the Denton home met his death. If we find any evidence in the record from which a rational inference might be drawn that the decedent met his death at the time which accords with the prosecution’s theory of the case, our inquiry as to that feature of the ease can go no further. If the evidence which bears against the defendant, consid

One of the points made on this appeal is the broad, general contention that the evidence did not warrant the jury in returning a verdict of murder in the first degree. [2] It is the general, if not universal, rule that where, as here, the evidence is entirely circumstantial, and no el aim of any mitigating circumstances, justification, or excuse for the killing is advanced by the accused, the jury, from the nature of the wound inflicted, from the character of the weapon which the nature of the wound indicates was used, from the acts and conduct of the accused, and all the attendant and surrounding facts, may infer that the deceased was unlawfully killed by the accused, with malice aforethought, as the result of a deliberate and premeditated purpose to kill, and, so inferring, the jury, under such circumstances, may be warranted in returning a verdict of murder in the first degree. If a different rule prevailed, then, as was said in People v. Mahatch, 148 Cal. 203 , [ 82 Pac. 779 ], “secret murders could rarely be punished by

Appellant urges two specific objections against the sufficiency of the evidence to justify the verdict. These are: (1) That the evidence is insufficient to establish that the death of the person whose body w7as found in the basement of the Denton home was caused by a gunshot wound; and (2) that the evidence is insufficient to show that the body was that of Jacob Charles Denton.

[5] In support of the first of these two points respecting the sufficiency of the evidence it is claimed that the evidence supports the theory that death was caused by strangulation, and not the theory that a bullet from a pistol was the cause of death. Prom these premises it is argued that the evidence demonstrates that a woman of defendant’s apparent weight and strength could not strangle to death a man weighing two hundred pounds, and, unaided and before rigor mortis had set in, drag the body from one of the floors of the Denton home to the basement, where it was found. Physicians called on behalf of defendant testified that, from conditions of the body as described by the prosecution’s witnesses, it was then-opinion that strangulation was the probable cause of death. Countervailing this testimony is the evidence given by the

[6] Moreover, even if strangulation were the cause of death, it would not necessarily follow that the evidence was not sufficient to justify the verdict of murder in the first degree. The indictment, following the form long approved in this state, does not state the manner or means of death. The prosecution, therefore, could advance any

Just as little merit is there in the claim that the dead body was not identified as that of Denton. It is true that; when the corpse was found, the features were unrecognizable. But relatives and former acquaintances of Den-ton were able to, and did, identify the remains as those of Denton by the clothing found thereon; by a belt buckle, a ring and cuff buttons, a gold-crowned tooth, by an old fracture of the upper third of the right arm,. as well as by a general resemblance in the outlines of the face, disfigured though it was by putrefaction, and in the contour and weight of the body. [9] This was sufficient to meet the most exacting requirements of the law, which does

[11] On September 24, 1920, on the top shelf of a closet in a room on the second floor of the Denton home, one of the detectives working on the ease found a 32-caliber revolver in its holster. It will be recalled that, though Dr. Wagner was unable to state accurately the caliber of the bullet that caused the aperture in the neck of the deceased—probably on account of the decomposed condition of the body—he did testify that the wound was about, the size made by a 32 or 38 caliber bullet. In the revolver found in the closet were five loaded cartridges and one empty shell. The closet in which the pistol was found

The revolver, its holster, and the cartridges were admitted in evidence, over defendant’s objection. This was not error. It was necessary for the prosecution to show, as accurately as the circumstances would permit, the means by which and the manner in which Jacob Charles Denton had come to his death “The relevancy of proffered proof in a criminal case depends upon whether or not it tends to sustain a legitimate hypothesis of the guilt of the defendant, and, generally speaking, an incidental fact is relative to the main fact in issue when, in accord with the ordinary course of events and common experience, the existence of the incidental fact, standing alone or when considered in connection with other established facts, tends

The inability of Dr. Wagner to say definitely whether the aperture in the neck was of the size made by a 32 or by a 38 caliber bullet, or whether the bullet was fired before or after death, is not a ground for the exclusion of the revolver. It was the province of the jury to determine from a due consideration of all the circumstances in the case “(including the fact that a 32-caliber revolver with one cartridge discharged was found in Mrs. Peete’s closet) whether the deceased came to his death from a revolver of that caliber fired by the defendant. Answering a somewhat similar objection urged by the defendant in People v. Sullivan, 129 Cal. 560 , [ 62 Pac. 103 ], the court said: “Notwithstanding the slight difference in weight in the bullet, under the circumstances it cannot be said that the jury were not justified in finding that it was the one

[13] It was not error to permit to be read to the jury the phonographic reporter’s transcription of the statements ■that defendant had made at the Glenn ranch on October 4, 1920, in the presence of the deputy district attorney and others. The reporter testified that he took accurate shorthand notes of all that was said, and that his transcription thereof , was correct. The document shows that defendant,, upon this occasion, made declarations respecting her move

[14] Many of defendant’s declarations, as set forth in the statement, are her explanations of suspicious circumstances which, if not explained satisfactorily, would naturally tend to point more or less conclusively to herself as the guilty agent, or one of the guilty agents, in the commission of the crime. Her declarations, when compared one with another, and particularly when considered in connection with the facts established by the sworn witnesses in the case, appear to have been disingenuous fabrications concocted to serve the purpose of a red herring drawn across defendant’s trail to throw the authorities off the scent. At any rate, they are of such a character that the jury would be justified in drawing the inference that such was their purpose. We would not have it understood that the interpretations which we have put upon the several statements made by defendant from time to time are the only legitimate constructions of. which they are susceptible. It is possible that they could be viewed in a

[15] The prosecution made no attempt to lay any foundation for a “confession” before offering defendant’s statement in evidence, it being the theory of the district attorney that the statement was not a “confession” but an “admission,” and as such receivable without any prior evidence of its voluntary character. We think this theory is fully justified by the nature of the statement.’ In no part of defendant’s recital of what she claimed to be her own conduct after she met Denton, or of what she claimed to be the facts surrounding the mystery of his disappearance, did she state or admit that she had done any wrongful or unlawful act in connection with the murder for which she subsequently was indicted. None of the facts admitted by her imported guilt or involved a crime—at least not any such crime as homicide. Her statement, which is a mass of evasions, equivocations, and attempted explanations to account for Denton’s disappearance and to establish her own innocence, was intended to negative the idea that she participated in any manner in the disappearance or the killing of Denton. True, it contains admissions

[16] It is of no consequence that the precise date of the death was not shown before the statement was received in evidence, and that, therefore, some of the facts as detailed by defendant may have occurred before the homicide. She was interrogated about matters relating to Denton’s disappearance and his supposed murder. The facts set forth in her answers all revolve around the tragedy as the central theme. They are the separate links in one chain. The unlawful killing of Denton by someone with malice aforethought was established by circumstantial evidence sufficient for that purpose. And it matters not that some of the facts detailed in defendant’s statement may have occurred before the homicide. Not only are all the facts narrated by her parts of the one statement, but they are all so interrelated that the statement is an entire and connected one, bearing upon the same subject matter and, therefore, admissible. (People v. Cahill, 193 N. Y. 232 , [ 20 L. R. A. (N. S.) 1084 , 86 N. E. 39 ].) Taken together, defendant’s declarations, as set forth in this statement, when considered in the light of the other proved facts in the case, have a tendency to connect her with the crime as the guilty agent, or as one of the guilty agents, if, indeed, she was aided and abetted by a confederate or confederates.

[17] There is no merit in the objection that the statement did not consist alone of declarations made by defendant, but was in part made up of accusatory questions propounded to her by the deputy district attorney. Not only do the questions and answers constitute one entire and connected statement relating to the same subject matter, and for that reason, if for none other, receivable in evidence, but the questions were admissible for the further reason that they come within the universally recognized rule that any incriminatory statements made to an accused person, and his replies thereto, may be admitted in evidence, unless his replies are denials free from equivocation and deceit. The accusatory statements are not direct evidence, but are admissible in connection with the replies for the

What we have said respecting the admissibility of the long statement made by defendant at the Glenn ranch on October 4, 1920, is equally applicable to the admissibility of the conversation between defendant and Mr. Doran, the chief deputy district attorney, held at the latter’s office on October 12, 1920. Moreover, there does not seem to have been any objection or motion to strike out the material and really damaging parts of this conversation. In the early part of Mr. Doran’s testimony, defendant’s counsel did, it is true,' move to strike out that part of the conversation which was then being narrated by the witness, upon the ground that it is “incompetent” and does not “throw any light on the transaction which the jury is trying to determine.” At the time this' motion to strike was made, Mr. Doran was relating that part of the conversation in which he expressed to defendant his sympathy over her predicament, and in which he said that it was unfortunate that everyone seemed to be against her. There does not appear to have been any ruling upon the motion to strike out this part of the witness’ testimony. But even if a failure to grant this motion to strike out the particular part of the conversation to which the motion was directed were error, it was harmless error, since the part complained of was not of a damaging character. Beyond this motion to strike, the failure to rule upon which was at most but harmless error, we have, as already stated, been unable to find any objection to or motion to strike out Mr. Doran’s testimony respecting his conversation with defendant on October 12, 1920.

[18] Appellant complains that there is no evidence in the ease authorizing the charge of the court upon the law applicable to an accomplice; that it was calculated to confuse and mislead the jury, and was therefore harmful and prejudicial. The instruction complained of is as follows: “All persons concerned in the commission of a

[20] The defense requested, and the court refused, an instruction as follows: “If you find the defendant guilty

It is provided by section 1157 of the Penal Code that “whenever a crime is distinguished into degrees, the jury, if they convict the defendant, must find the degree of the crime of which he is guilty.” Because of this code provision, it is claimed that the court, in compliance with defendant’s special request, should have specifically instructed the jury that it is their “duty” to determine the degree if they find the defendant guilty of murder. Without doubt, the requested instruction was unobjectionable, and, perhaps, should not have been refused. But even so, we cannot see how defendant was injured by the refusal. As we have said, the court, in its general instruc

[22] It is claimed that there was no proof of venue. It is argued that because the venue depends, not upon where the dead body may be found, but upon the place where the mortal wound was inflicted, it may not be inferred that the deceased was killed in Los Angeles County. The objection lacks merit. [23] The venue, like any other fact in a criminal case, may be established by circumstantial evidence. And though no witness testified that Denton was murdered in Los Angeles County, the conviction being based entirely on circumstantial evidence, it is uneontradicted that the body was found in the city of Los Angeles, in the basement of the house that Denton had leased to defendant, many miles from the county line, covered with a mound of dirt, canvas, and other articles,

[24] It appearing to the trial court, after twelve jurors had been impaneled and sworn, that the trial was likely to be a protracted one, and that, therefore, the case is one calling for an “alternate jury,” as provided by section 1089 of the -Penal Code, the clerk was ordered to draw •from the term trial jury-box the name of an additional juror. Accordingly, the name of one O’Dell was drawn. After being sworn on his voir dire to make true answers to questions respecting his qualifications, O’Dell was examined, passed for cause, accepted as the “alternate juror,” and as such was duly sworn well and truly to try the matter in issue and a true verdict render according to the evidence. We are justified in assuming that this was, in substance, at least, the oath that was administered to O’Dell; for it is the form of oath prescribed by statute for the regular jurors (Code Civ. Proc., see. 604), and section 1089 of the Penal Code provides that alternate jurors shall take the same oath as the jurors already selected. Having thus taken the same oath that had been taken by the twelve regular jurors, O’Dell, as such “alternate juror,” attended at all times upon the trial of the cause in company with the other jurors, and was seated near, with equal power and facilities for seeing and hearing all the proceedings. Before the submission of the ease, and about two weeks after O’Dell had thus been called and sworn as an “alternate juror,” and after much evidence had been introduced, one of the regular jurors originally impaneled and sworn to try the matter in issue, Juror Rudd, became so ill that he was unable to continue the performance of his duties as a juror. Whereupon the court

Section 1089, added to the Penal Code by the act of March 28, 1895 (Stats. 1895, p. 279), provides that whenever, in the opinion of the judge of the trial court, the trial is likely to he a protracted one, the court, immediately after the jury is impaneled and sworn, may direct the calling of one or two additional jurors, to be known as “alternate jurors,” who shall have the same qualifications as the regular jurors, be subject to the same examination and challenges, and who, after having taken the same oath as the other jurors, shall be seated near, with equal power and facilities for seeing and hearing the proceedings in the case, and shall attend at all times upon the trial in company with the other jurors. It is further provided by the section that if, before the final submission of the ease, a juror shall die, or shall become so ill as to be unable to perform his duties, the court may order his discharge and draw the name of an “alternate,” who shall then take his place in the jury-box and be subject to the same regulations as though he had been selected as one of the original jurors.

Section 7 of article I of the Bill of Rights, contained in the constitution of this state, provides: “The right of trial by jury shall be secured to all, and remain inviolate.” The right of trial by jury, secured in England by Magna Charta and in this country by the" constitutions of the United States and of the several states, a right which may not .be waived in criminal cases amounting to felony, has always been regarded as sacred and has ever been jealously guarded by the courts. The provision of our Bill of Rights that the right of trial by jury is to remain inviolate means that all the substantial incidents and consequences which pertain to the right of trial by jury at common law are beyond the reach of hostile legislation and are preserved in

Without doubt, one of the essentials of a jury at common law is that it be composed of twelve persons, and that twelve persons, not more nor fewer, shall pass upon and determine the issues of fact. (Jennings v. State, 134 Wis. 307 , [ 14 L. R. A. (N. S.) 862 , and note, 114 N. W. 492 ] ; 16 R. C. L., p. 221; L. R. A. 1917A, p. 91 et seq., note to Minneapolis etc. Co. v. Bombolis.) Where the procedure provided by section 1089 is followed, the jury before whom the case is actually tried does not at any time consist of more or fewer than twelve persons. Prior to the substitution of the “alternate juror,” the case is being tried before the original twelve jurors. Upon the death or discharge of the incapacitated juror and the subsequent substitution of the “alternate,” who previously has been examined as to his qualifications, accepted and sworn well and truly to try the matter in issue, the case continues to be tried before twelve persons. Prior to the time when the “alternate juror” is substituted for the dead or incapacitated juror, the “alternate,” though he has been chosen and qualified for the possible emergency, sits and listens to the evidence, but he does not during that period of his service

At common law, according to the established precedents, where a juror has become incapacitated by illness or death after the jury is impaneled and sworn in chief, the proper procedure appears to have been to discharge the entire panel and begin de novo by forming a new jury. (Dennis v. State, 96 Miss. 96 , [ 25 L. R. A. (N. S.) 36 , and note, 50 South. 499 ] ; West v. State, 42 Fla. 244 , [ 28 South. 430 ]; State v. Hazledahl, 2 N. D. 521 , [ 16 L. R. A. 150 , 52 N. W. 315 ].) But though this seems to have been the established common-law procedure, the common-law right of trial by jury, as guaranteed by our Bill of Rights, is not impaired by legislation that provides for the discharge of the incapacitated juror only and the calling of a new juror to be sworn and impaneled in his place, the introduction of evidence then to be begun de novo without reswearing any of the remaining eleven jurors or providing for any challenge to them. (State v. Davis, 31 W. Va. 390 , [ 7 S. E. 24 ]; West v. State, supra; State v. Hazledahl, supra.) Such legislation, says the West Virginia supreme court of appeals in State v. Davis, supra, “does not abridge the right of the citizen secured to him by the constitution.” The question, therefore, narrows down to this: If an incapacitated juror be discharged during the course of the trial, and an “alternate” impaneled in his place, is it an essential of the right of trial by jury, as guaranteed by our Bill of Rights, that the witnesses be resworn and give their testimony anew? That is, notwithstanding the “alternate” has seen and heard all the witnesses, is it, nevertheless, -essential that, so far as the introduction of the evidence is concerned, the trial should be begun de novo?

The legislature, as we have seen, has the right to make any reasonable regulation or condition respecting the enjoyment of trial by jury, provided only that the essentials of a jury

Clearly, the section does not affect the first of the three essential attributes of a jury trial—number. As we already have pointed out, the trial is by a jury of twelve in every essential particular. Twelve persons, neither more nor less, determine the issues of fact and render the verdict. The same twelve by whom the verdict is rendered have seen and heard, with equal opportunities, all the witnesses in the case, have received the same court instructions, and, under the same legal sanctions, have had imposed upon them the same obligation well and truly to try the matter in issue.

It seems clear that the section cannot affect the second essential of a jury trial—impartiality. The juror who, up to the time when he replaces the dead or incapacitated juror, has sat throughout the trial as an “alternate,” hearing and' seeing all of the witnesses, has been chosen as such alternate only after an examination as to his qualifications, subject to the same challenges as the other jurors, and upon his being selected as an alternate—i. e., before the introduction of any evidence whatever—he has taken the same oath that was taken by the other jurors—an oath well and truly to try the matter in issue and a true verdict render according to the evidence (sec. 1089, -Pen. Code, and sec. 604, Code Civ. Proc.). We may not assume that an “alternate,” merely because he is conscious that it is possible that he may never be required finally to decide the ease as one of the twelve by whom the verdict is rendered, will violate his oath and .pay less heed to the evidence than he would if he were im

Nor can section 1089 affect the third of the three sssentials of a jury trial—unanimity. The verdict still must be the unanimous verdict of the twelve jurors to whom the case is finally submitted, even though one of them, before taking the place of the incapacitated juror, sits as an “alternate.”

To hold, under these circumstances, that a defendant is deprived of the right to a trial by a jury of twelve simply because one of the twelve by whom the verdict is rendered may, throughout a part of the trial, have sat and listened to the evidence as an “alternate” and not as a regular juror, would be to exalt mere form above substance. To so hold would be to leave untouched the vital springs of reality and grasp at the merest shadow of substance, forgetting that “the letter killeth, but the spirit giveth life.” Our conclusion on this branch of the case is that our code provision for the selection of an “alternate juror,” and, if need be, for his impanelment as one of the twelve to whom the case is finally to be submitted, does not impair any of the essential attributes of a trial by jury.

[25] It next is claimed that the act whereby section 1089 was added to the Penal Code violates the constitutional requirement that “every act shall embrace but one subject, which subject shall be expressed in its title” (sec. 24, art. IV). The title of the act reads: “An act to amend the Penal Code by adding a new section, to be known as section 1089 of the Penal Code of the State of California, relating to alternate jurors.” Appellant’s argument is substantially this: The section relates to proceedings to he had when a juror becomes unable to perform his duties, and provides for the selection of a juror to take his place; the words “alternate jurors” are unknown to the law; therefore, so

[26] If it be true, as counsel assert, that section 1089 by implication amends or repeals section 1123 of the Penal Code, the section may not for that reason be held to be unconstitutional. Section 24 of article IV of the constitution declares that “no law shall be revised or amended by reference to its title, but in each case the act revised or section

[27] Equally devoid of merit is the contention that the act whereby section 1089 was added to the Penal Code is unconstitutional because, according to counsel’s unsupported assertion, the bill was not read three several days in each house, as provided by section 15 of article IY of the constitution. The validity of a statute that has been duly verified, enrolled, approved and deposited in the office of the Secretary of State cannot be impeached by a resort to the journals of the legislature or by extrinsic evidence of any character whatever. (People v. Camp, 42 Cal. App. 411 , [ 183 Pac. 845 ], and eases there cited.)

[28] Finally, it is urged by defendant that the district attorney was guilty of misconduct during his examination of certain witnesses and in the course of his argument to the jury; and this misconduct is now assigned as reversible error. On his examination of certain of the witnesses the district attorney asked several obviously improper questions. In each instance an objection was at once made and sustained, and the court promptly directed the jury to disregard the question and its implication. It does not appear that the district attorney contumaciously persisted in repeating any improper question after an objection made and a ruling thereon. There is nothing in the record indicating bad faith, or that the questions were asked for the wanton purpose of raising a prejudice against the defendant. It frequently happens that in the heat of a trial counsel ask improper questions. But judgments cannot be reversed for an inadvertence of this character, unless, from an examination of the record, we may be of the opinion that it has caused a miscarriage of justice. In view of the court’s

In the course of his argument to the jury the district attorney, notwithstanding the defendant had not taken the stand as a witness in her own behalf, commented upon her appearance while sitting as a prisoner before the bar, saying, among other things, that an innocent woman, facing an ordeal such as defendant was then passing through, could not sit in the courtroom without a tear. This conduct was clearly reprehensible and inexcusable, and it was the duty of the court to have interposed for defendant’s protection, as doubtless it would have done had its attention been specifically called to the remarks by timely objection. The district attorney’s improper comments on defendant’s appearance should, and, had timely objection been made, doubtless would, have met with prompt and effective rebuke. Defendant, who had not tendered herself as a witness in the case, was at the bar of justice, not voluntarily, but by compulsion; and the prosecutor went outside the circle of fair debate when he called attention to her demeanor while at the bar to which she had been haled by the strong arm of the law. (Bessette v. State, 101 Ind. 85 ; Perez v. Territory, 12 Ariz. 16 , [ 94 Pac. 1097 ].) But it does not necessarily follow that this misconduct necessitates a reversal. The decisions of our supreme court hold that, unless the defendant objects to the improper remarks and requests an instruction that the jury disregard them, the objectionable statements will not justify a reversal unless the district attorney’s misconduct is so flagrantly and obviously prejudicial that neither a retraction nor a rebuke from the court can destroy its influence. Had the court, in response to a seasonable objection, vigorously condemned the prosecutor’s remarks, as doubtless it would had its attention been called to them by timely objection, we think that they would have left no prejudicial impression on the minds of the jury. The misconduct complained of in People v. Kromphold, 172 Cal. 512 , 523, [ 157 Pac. 599 ], was as flagrant as any shown here. Nevertheless, it was held in that case that it would be most unreasonable to assume that the jury could have

For the same reason defendant cannot now be heard to complain of the district attorney’s verbal assaults on defendant’s counsel when criticising the course pursued by the latter in his conduct of his client’s case. Defendant, who, for financial reasons, was unable to employ counsel of her own choice, was represented throughout the trial by the public defender of Los Angeles County, a paid public officer of the county, holding an office of dignity and responsibility, and who seems to have represented defendant with fidelity and zeal, with marked ability and dignified endeavor. Though the remarks directed by the district .attorney toward his fellow-member of the bar and co-representative of the public weal may have been a display of poor taste, we do not see how they possibly could have prejudiced the defendant. On the contrary, addressed to fair-minded jurors, they must have recoiled to the prosecution’s dire discomfiture—if, indeed, they had any effect whatever. But, be this as it may, inasmuch as the court was not once, during the course of the argument to the jury, requested to instruct the jury to disregard the improper statements of the district attorney, and as such an admonition would, doubtless, have been sufficient to cure any effect the remarks might have produced, the claimed misconduct in the argument cannot be considered on this appeal.

The defendant was ably defended, every opportunity was given her to meet the evidence adduced by the prosecution in support of the charge, the verdict was justified by the evidence, and there is no prejudicial error appearing in the record.

The judgment and order are affirmed.

Works, J., and Craig, J., concurred.

All the Justices concurred, except Lennon, J., who was absent.