People v. Buck

pro tern. — Defendant was convicted of the crime of rape, and he appeals from the judgment and the order denying his motion for a new trial. He also appeals from an order made after judgment denying his motion to “amplify” the record on appeal. This latter motion was filed five days after the rendition of the judgment and by said motion defendant sought to have certain affidavits, attached to his motion, made a part of the record on appeal in support of his ground on appeal that his constitutional rights were invaded in that he was not accorded a public trial. In addition to these appeals the appellant has moved this court for diminution of the record. In his brief appellant urges that his appeal taken from the order made after judgment be incorporated with his appeal from the judgment of conviction and order denying his motion for a new trial, and that this court direct the lower court to correct its record by incorporating therein the said affidavits and to certify the record as so corrected to this court. We are unable to comply with this request.

To amplify is to enlarge or expand in statement or in treatment. Nowhere do we find authority to enlarge or expand the record on appeal except as that process might take place

The motion for diminution of the record is supported by a certified transcript of the proceedings had on the motion to amplify the record and included in the transcript are the affidavits which appellant requests be ordered up as a part of his record on appeal. These affidavits are to this effect: That prior to the time that the court instructed the jury the court announced, “Any one desirous of leaving the courtroom please do so at this time as no one will be permitted to leave or enter the courtroom during these instructions. All right, mister bailiff, close the door”; that immediately after

At this juncture it is well to state briefly the facts of the case in order to consider appellant’s other points on these appeals. The prosecutrix, aged 19 years and married, left

The police officer testified that when he called at prosecutrix’s house he found her in a disheveled condition and complaining of an injury to her head. The officer saw a laceration on the top of her head probably about 5/8 of an inch long and bleeding slightly. Her scalp was broken and swollen.

Defendant was apprehended. His shoes and pants up to his waist were all wet and muddy. His hands were also muddy. At first he denied having any girl down the alley and then he said: “All right, I was standing at the alley”; that this girl was walking along and as she came near him he flashed a two-dollar bill toward her and said ‘ ‘ How about it, Kid”; that she nodded her head in agreement; that the idea probably struck him and the girl at the same time; and that she went with him. The next morning the defendant changed his story and stated that the former story given was a lie; that he had been drinking; that he met the girl and what happened he didn’t really know. He said: “I just saw the girl, fell in step with her, and evidently tried to attack her. I helped her look for her shoe after the assault. I didn’t know very much about what I was doing. I was kind of dazed, — didn’t know what I was doing, and I think I walked up the street to the Copper Kettle.” The officer then asked him if he told his wife what had happened and the defendant said he had told his wife the truth of the matter, that he just got crazy drunk and assaulted the woman. At the time of this particular conversation the defendant’s wife was standing close to him.

While the prosecutrix was being cross-examined at the trial, the following took place: “ Q. . . . you first refused to sign the complaint in this ease, didn’t you? MR. BARBOUR: I object to that as incompetent, irrelevant and immaterial, not proper cross-examination. THE COURT: Let me have the question, please. The question is read by the reporter. THE COURT: Overruled. A. No. BY MR. WESTOVER: Q. You did not? A. No. Q. Did you tell anybody that you had refused to sign the complaint in this ease? MR. BARBOUR: I object to that as not proper cross-examination. THE COURT: Sustained. A. No. THE COURT: Don’t answer when I sustain an objection. MR.

Appellant contends that the ruling of the trial court was erroneous. He claims that the prosecutrix’s story, when taken in conjunction with physical circumstances surrounding the affair, shows equivocation such as is pointed out by the court in the case of People v. Brown, 138 Cal. App. 748 [ 33 Pac. (2d) 460 ]. In that ease the trial court sustained an objection to this question asked of the prosecutrix on cross-examination: “Well, Miss Miller, is it not a fact that you immediately after preferring these charges against Mr. Brown, you asked that they be dismissed ? ’ ’ Upon appeal it was held that this was proper cross-examination for the reason that the jury may properly consider the conduct of a prosecutrix towards a defendant after the alleged commission of a crime. The court said: “ . . . and where, as here, there was evidence sufficient to support defendant’s version of the affair we cannot say that an affirmative answer to the rejected question, taken with the flippant reply of the prosecutrix to the question whether she scratched the defendant, would not have convinced the jury that her story was untrue.” In the instant ease no flippant reply was made by the prosecutrix to any question propounded to her and the circumstances as related by her testimony were corroborated by other witnesses to such an extent that there was no room for doubt as to the truth thereof. This case differs from the Brown case in these particulars, and it is difficult to see how the result could have been different even if she had given an affirmative answer to the question.

The circumstances here do not disclose a case where a verdict for the defendant would have been fairly supported. The prosecutrix’s account of the affair, taken in connection with the physical circumstances, is not equivocal, as in the Brown case. On the other hand, the defendant’s version of the affair related by him on the witness stand, was unsupported by any evidence and could easily have been disbelieved by the jury. He admitted to the police officer that, “I just got crazy drunk and assaulted the woman.” Because of the

Appellant next complains that the trial court erred in refusing to give certain instructions which he states he offered and which he claims under the authorities cited in his brief were pertinent, necessary and material to said cause. But he presents no argument nor does he set forth any of the instructions given by the court bearing upon the subjects covered by the refused instructions. In this respect he has failed to comply with section 3, rule VIII of the Rules for the Supreme Court and District Courts of Appeal, and we are justified in the belief that the instructions which were offered by appellant and refused were properly refused. (People v. Jacobs, 11 Cal. App. (2d) 1 [ 52 Pac. (2d) 945 ].)

One of the grounds set forth in defendant’s motion for a new trial was newly discovered evidence. In support thereof he filed two affidavits, one made by his wife and one by one of his attorneys. He does not contend in his brief that the matters set forth in these affidavits, if placed before the jury, would render a different result probable, but that “a jury might have taken note of the situation and given greater credence to the case of the defendant in this respect. ’ ’ This, of course, does not meet the requirements of the law, for a new trial should not be granted on the ground of newly discovered evidence unless the showing is such as to render a different result probable. (People v. Urquidas, 96 Cal. 239 [ 31 Pac. 52 ]; People v. Paysen, 123 Cal. App. 396 [ 11 Pac. (2d) 431 ].) A reading of the affidavits fails to satisfy us that the evidence therein contained would have rendered a different result probable on a retrial of the cause. We therefore can see no abuse of discretion by the trial court in denying the motion. The “newly discovered evidence” suggested in the affidavits relates to a conversation had between defendant’s wife and the prosecutrix the day following the affair of which the prosecutrix complained. The fact of the conversation was not disclosed to defendant’s counsel until after the trial was over. The two participants agreed to keep their visit and conversation a secret. There is no affidavit of defendant denying his knowledge of the said conversation nor does the affidavit of the defendant’s wife specifically deny that

We are referred by counsel to the transcript in order that remarks of the district attorney which counsel deems are prejudicial may be ascertained. This is a burden which this court will not assume. (People v. Barnett, 134 Cal. App. 381 [ 25 Pac. (2d) 476 ]; People v. Pearson, 11 Cal. App. (2d) 123 [ 52 Pac. (2d) 971 ].) The instance where counsel has pointed out particular error involves an attempt on the part of the district attorney to convince the prospective jurors that he was not prosecuting an innocent man. The district attorney propounded the following question to a prospective jui’or: “Q. Now there has beexx a lot of talk here and discussion about the presumption of innocence in a criminal ease and you have been asked repeatedly if you believed this man at the counsel table charged with crime is innocent at this momexxt and a number of these jurors have properly answered that they thought he was, under the presumption which the law has provided, but now I want here to know what you think about — if you have any idea on the subject of what you think the district attorney’s duties are — do you believe while this man is presumed to be inxxocent it is my job as district attorxxey to come here and prosecute an innocent man?” Appellant’s counsel objected to this question and his objection was sustained. This line of questioning should not have been indulged in and the court properly sustained the objection. It cannot be said, however, that counsel’s conduct wrought prejudice. (People v. Hanks, 35 Cal. App. (2d) 290 [ 95 Pac. (2d) 478 ].)

There is an abundance of evidence to support the verdict in this case and we see no prejudicial errors in the record.

The judgment and orders appealed from are affirmed. The motion for diminution of the record is denied.

Barnard, P. J., and Griffin, J., concurred.