People v. Irby

Defendant was convicted of robbery under an information in two counts. He appeals from the judgment of conviction and from an order of the trial court denying his motion for a new trial.

It is not necessary, for the purposes of the decision which we are about to render, to state even in a general way the facts involved in the second count of the information, and we shall recite but briefly, as a preface to certain portions of the record which we must state circumstantially, the facts upon which the first count is based. The name of the prosecuting witness is Solovich. At the time of the occurrences upon which the information rests he had resided at a certain apartment house, with one Harrigan as a room-mate, for nine years. Solovich’s story is that on a certain evening he was on his way home and stopped to look at a show window near the apartment house in which he lived; that

Upon the cross-examination of appellant the following transpired: “Mr. Costello [a deputy district attorney] : Have you ever been convicted of a felony? A. No, sir. Q. You say you called Mr. Solovich a degenerate ? A. Yes, sir. Q. Were you ever called one? A. No, sir. Q. You are sure you have never been called one, or accused of being one ? Mr. Gardner [counsel for defendant] : I object to that as not cross-examination and misconduct. The Court: Objection sustained. Mr. Gardner: We ask the court to instruct the jury to disregard the remarks of the district attorney. Mr. Costello: I have been pretty liberal to you. Mr. Gardner: I think that is highly prejudicial your honor. The Court: Stricken out, and the jury instructed to disregard it.”

Later in the cross-examination appellant said something about his desire to force Solovich “to get out of Los Angeles,” in which city the events mentioned in the testimony transpired. The following then occurred: “Q. [By Mr. Costello] : Why did you want him to get out of Los Angeles? A. Because he is a degenerate, sir. Q. You are not one, are you? Mr. Gardner: Objected to as not cross-exami

The persistency of the district attorney was again made evident during the cross-examination of appellant. The witness was asked hy Mr. Costello: “Just what is your understanding of a degenerate? ... A. My opinion of a degenerate is a man that will want another man to go directly against the laws of nature, and have sexual intercourse with another man, instead of a person of the opposite sex. Mr. Costello: Did Mr. Solovich try that with you?” It is unnecessary to set down the answer. The examination proceeded: “Q. Did you try to do it to him? A. I hit him because he wanted to. Q. I am asking you—did you? Mr. Gardner: Just a moment. He has answered the question. The Court: No, he has not answered it. A. Did I try to do it to him? Q. Yes. A. No, sir. Q. You never tried that on any young man in your locality. A. No, sir; absolutely not. Q. Never have been accused of it? Mr. Gardner: Objected to as immaterial, and ask the court to instruct the jury to disregard it, and assign the question as misconduct. The Court: The jury will eliminate the question from your minds, and pay no attention to it.”

The same subject came up yet again on appellant’s cross-examination. On direct he testified that on the way to the hotel where he and Solovich took the room he noticed that Solovich had certain effeminate mannerisms. He asked how they were acquired and Solovich said he acted in that manner because he had been a female impersonator on stage and screen. On cross-examination appellant answered a certain question thus, in part: “I was paying more attention to Mr. Solovich’s actions at that time, rather than his words . . . and I questioned him as to why he acted that way.” Mr. Costello’s cross-examination then proceeded: “Q. How did he act? A. Why, I probably could demonstrate it but— Q. All right; let’s have you demonstrate it-—will you? Mr. Gardner: We object to all that, your honor, not cross-examination. The Court: Overruled. ... A. When he was walking down Ninth Street towards Main, he had one hand on his hip that way (indicating) and was walking something like this (indicating). Mr. Costello: You felt then you were right in clover, didn’t you? Mr. Gardner: Objected to as

Appellant was arrested at the Majestic Hotel, in Los Angeles, two or three days after the happening of the events upon which the information is based. The arresting officer was one Stelzriede. On the redirect examination of appellant his counsel asked him to state a conversation which occurred between him and Stelzriede at the time of the arrest. Appellant did so, but the conversation given bore no relation whatever to any matters similar to those we have set forth in the foregoing extracts from the testimony. The recross-examination of appellant then occurred, the opening portion of it being as follows: “Mr. Costello: Is that all the officer said to you? A. Not all. Q. Now, tell us all the officer said to you, will you? Mr. Gardner: At that place. Mr. Costello: I am cross-examining. Mr. Gardner: I am here to look out for the defendant. The Court: I assume it will be confined to that conversation.” The witness then related some matters unconnected with the subject matter of our present statement. The recross-examination then proceeded: “Q. Did Mr. Stelzriede ask you if you were ever arrested before ? Mr. Gardner: Objected to on the ground that the witness has stated that he didn’t remember any other part of the conversation. The Court: He has the right to ask the question. Overruled. A. No, sir, he didn’t. Q. Did Mr. Stelzriede ask you if you were ever arrested before, and you said yes, and he asked you what for? Mr. Gardner: Hold on, we object to that—I know what is coming. Mr. Costello: I know what is coming, too. The Court: You will address the court, gentlemen. Mr. Gardner: There was another trial of this case, your honor, and I am in a little better position to know what is in counsel’s mind than your honor, and it is clearly incompetent, irrelevant and immaterial; and if he wants to ask it, I ask that the jury be excused until we can argue the matter. Mr. Costello: You are not afraid, are you? Mr. Gardner: I object to counsel’s remarks, and assign the same as misconduct. The Court: Yes; don’t interrupt him.” Then followed a colloquy showing that the trial judge and both counsel concurred in the untenable view that the People were entitled to show the entire conversation at the time of the arrest, notwithstanding the fact that parts of it may have related to

Stelzriede was then called by appellant and on direct examination testified only as to a search of appellant which he made at the time of the arrest. Mr. Costello plunged into the cross-examination of the witness thus: “Mr. Costello: Mr. Stelzriede, at the time of the defendant’s arrest, did the defendant tell you, did you ask the defendant whether or not he had been arrested before, and he said ‘Yes?’ A. Subsequent to the arrest he was asked that question arid answered in the affirmative, yes. Q. Did you ask

The appellant having rested his defense Stelzriede was called in rebuttal. He testified that he had a conversation with appellant at the police station shortly after the arrest, that at the time there was no promise or reward or hope of immunity offered to appellant and that no force or violence was used toward him, and that the statements made by him were free and voluntary. The examination then proceeded: “Q. Now, state the conversation? Mr. Gardner: Your honor, I object to that. He is trying to get in the same old matter. I can state I have heard the testimony and so has counsel, and there is nothing as to a confession, and it is simply an effort to get testimony in that the court has already ruled is incompetent and immaterial. We . . . feel, and we do assign such conduct on the part of the district attorney as misconduct. The Court: I think certain evidence has been brought out here that would make the matter admissible. Objection overruled, /fYou may answer. A. I then asked the defendant if he all together [sic] mentally. He said, ‘Yes,’ and. during the conversation I asked him if he had ever been under arrest for anything previous to this, and he said, ‘Yes.’ I asked him what the facts were, and he said he had been arrested

It is contended by appellant that the portions of the record which we have set forth show misconduct on the part of the district attorney and show that the court erred in permitting the people to introduce the evidence which went in over appellant’s objections and which remained in despite Ms motions to strike. We shall consider first the claim of error as to the rulings of the court. The condition of the part of the record showing the attempt of the district attorney to bring out the alleged complete conversation at the time of appellant’s arrest at the Majestic Hotel is most peculiar. Appellant did not object upon the ground that the part of the conversation sought to be elicited was not proper, but only upon the ground that the matter called for was really part of a later conversation. [1] This objection was not tenable, as the questions of the district attorney specifically called for what he was after as being a part of the conversation at the time of the arrest. The fact that the evidence so persistently sought was not a part of that conversation reflects upon the conduct of the district attorney in asking for it, as we shall later have occasion to point out, but there was no error upon the part of the court in permitting the questions in the face of the only objection which was made [2] The part of the record just mentioned is followed by the question addressed to appellant, “Did you ever tell Stelzriede that?” It was objected

[4] As to the conduct of the deputy district attorney, his course throughout the trial was most reprehensible. Instead of proceeding with a fair and open endeavor to convict appellant upon proper evidence, as was his duty, he subjected him to treatment which was most oppressive and which deprived him of that trial on the merits which he had a right to expect. We shall select, in support of this statement, one of the instances exhibited by the portion of the record which we have quoted. The incident to which we refer was the attempt to show by Stelzriede, as a part of the conversation at the Majestic Hotel, a conversation which occurred later at the police station. Mr. Gardner pointed out forcibly that he knew, and that the deputy district attorney knew, that the conversation which the latter sought did not occur at the hotel but at another place. He asserted that the fact was so well known for the reason that there had been a previous trial of the cause. A transcript of the earlier trial is on file upon the present appeal. It shows that the first trial commenced but thirty-three days before the commencement of the trial from which this appeal results and that Mr. Costello was present at that trial as sole counsel for the People, as he was at the second trial. It

We have as yet cited no authority upon the points we have discussed, but such authority is at hand. That the trial court erred and that the prosecutor was guilty of -mis

There are no other points which require consideration. Judgment and order reversed.

Finlayson, P. J., and Craig, J., concurred.