PEOPLE v. ZEMAVASKY.
The appellant, Nick Zemavasky, was found guilty by a jury of having committed the crime of rape on his seventeen year old stepdaughter, and he has appealed from the judgment of conviction and the order denying his motion for new trial.
The grounds urged for reversal are that the evidence is insufficient to justify the verdict, that the court erred in ruling on the admissibility of evidence and in giving and refusing to give certain instructions to the jury, and that the prosecuting officer was guilty of misconduct. The brief filed by the attorney general merely accentuates the points made by appellant for reversal, and submits the appeal without comment or recommendation. However, the district attorney filed a brief supporting the conviction, and presented the oral argument for the people at the time the appeal was heard.
As to the question of the evidence, appellant concedes that the testimony of the prosecutrix, if true, is legally sufficient to sustain the conviction, but he contends that it is uncorroborated, conflicting and inherently improbable. The governing rule in this class of cases is that it is only where the evidence of the prosecution is so improbable in itself as to warrant the belief that the verdict was the result of prejudice or popular excitement that a reviewing court is justified in disturbing the verdict of the jury. The mere fact that there is a substantial conflict will not necessitate a reversal, since the weight of the evidence and the credibility of the witnesses are questions for the jury to decide; nor is it essential that the testimony of the prosecutrix be corroborated, for it has long since been the law that such uncorroborated testimony, considered alone, may be sufficient to sustain a conviction, even though discrepancies appear therein. 22 Cal.Jur. pp. 394–401.
Considered in the light of the foregoing rules, it is our conclusion that the evidence here is not such as would warrant a reviewing court in holding as a matter of law that the verdict finding appellant guilty was the result of prejudice or popular excitement. It discloses the following facts: The appellant by occupation is a contracting painter. In 1932 he married the mother of the prosecutrix in San Francisco, and has since lived with his wife and stepdaughter, Dorothy Meyers, at a home on Manchester street. The girl had known appellant since she was seven years old, he having lived at the home of her mother for some time prior to their marriage, and the girl testified that he had been having sexual relations with her since she was twelve years old. The criminal act of which he was convicted, however, was committed, so the prosecutrix testified, on May 29, 1939. At that time Mrs. Zemavasky was visiting relatives in Poland. She left San Francisco on May 6, 1939, and before leaving arranged for her daughter, who was attending high school, to live with a Mrs. Anna Kirichenko in San Francisco. Against her mother's wishes the girl had been keeping company with a young man named Arthur Meyers, and on May 23 Meyers and the girl ran away to Redwood City and were married. Following their marriage they went to Long Beach and there visited Meyers' aunt. She refused to believe they were married, and caused them to be taken into custody by the juvenile court authorities. But that same night the police phoned to Meyers' grandmother, Mrs. Anna Pagel, in San Francisco, at whose home on Capp street Meyers had been living, and upon being informed by her that the couple had been married the police stated they would be released. At Mrs. Pagel's request, however, the police consented to hold them until arrangements could be made to return them to San Francisco. Immediately upon receiving the phone message Mrs. Pagel communicated with appellant, and at her request he called at her home. He was accompanied by another man; and Mrs. Pagel's daughter, Mrs. Toomy, was also present. Appellant did not introduce his friend, but at the trial gave his name as Gabriel Gavrioloff. At this conference Mrs. Pagel and appellant agreed to send the necessary money to bring the couple back to San Francisco. They did so, and the couple arrived in San Francisco by bus about five o'clock on the morning of May 29. They went to Mrs. Pagel's home, where they met Mrs. Pagel, appellant and Mrs. Toomy, and the question was brought up as to whether the couple wanted to continue living together. Appellant insisted, however, on taking the girl home with him so that he could talk with her alone. In this regard Mrs. Pagel testified: “Mr. Zemavasky was very much determined that he would take Dorothy to his home and talk it over privately with her, what they intended to do, and he said, ‘I will take you home, Dorothy, and we will talk it over by ourselves, and Arthur can talk to his auntie and his grandmother and find out what they intend to do.’ ” Upon reaching their home on Manchester street Dorothy went to her bedroom to collect some clothing to take away with her, and she testified that in about five minutes appellant entered the room, and under threats of violence and that he would turn her over to the juvenile authorities, compelled her to have sexual intercourse with him. Later that morning he drove the girl back to Mrs. Pagel's home, and upon leaving her there stated to Mrs. Pagel that the girl wanted to live with Meyers. Mrs. Pagel noticed at that time that the girl had been crying.
Appellant denied having sexual relations with the girl at any time; and denied having gone to her room at all on the morning of May 29. He testified that after they entered the home she went to her room, that he prepared breakfast which they ate, and that soon afterwards he drove her back to Mrs. Pagel's home. Appellant produced Gavrioloff as a corroborating witness. He was a friend of appellant's of some twenty–five years standing, having known him in New York before either of them came to San Francisco. Gavrioloff testified that he was spending the week–end with appellant, and that he was the man who accompanied appellant to Mrs. Pagel's home the night she received the phone message from the police. He testified that he was sitting in the living room of appellant's home, reading a paper, when appellant and the girl arrived on the morning of May 29; that from where he sat in the living room he could see whether anybody went in or out of the girl's bedroom; that he saw the girl go in the bedroom, but that she did not see him; and that appellant did not at any time enter her room that morning. However, the prosecution established quite clearly that Gavrioloff was a witness unworthy of belief. In this regard Mrs. Pagel and Mrs. Toomy both testified positively that Gavrioloff was not the man who came to their house with appellant on the night in question. They stated that the conference was held in their living room, that they saw and talked with the man, and that Gavrioloff was not that man; that he was of an entirely different stature; and on cross–examination Gavrioloff gave an entirely wrong description of the appearance of the room in the Pagel home where the conference was held, and of the articles of furniture therein. Moreover, although he testified he has visited appellant's home many times, he was pointed out to the girl while she was testifying as a witness, and she stated positively that she had never seen him before; and she also testified that no one besides appellant and herself was present in the house on Manchester street that morning; that if anybody had been sitting in the living room, as Gavrioloff claimed he was, she could and would have seen them.
Regarding the matter of conflicting testimony, the prosecutrix testified that on the morning of the commission of the offense she was wearing a dress; whereas appellant claims that in contradiction thereof she testified at the preliminary examination that she was wearing slacks. A fair construction of her testimony given at the preliminary examination does not bear out appellant's contention. Moreover, no less than three witnesses, besides the girl, testified that she was wearing a dress. It is also contended that the testimony given by the girl at the trial as to when she told her husband about appellant having assaulted her on May 29, conflicted with the testimony given by her at the preliminary examination. To a certain extent that is true, but as already stated all such conflicts go to the question of the credibility of the witnesses, of which the jury must be held to be the sole judge.
Appellant points out that not until March, 1940, was appellant formally charged with the commission of the offense; and in this connection it may be conceded that in the absence of satisfactory explanation delays in filing charges of this kind doubtless are looked upon as a weakness in the prosecution's case. But this circumstance also was one for the jury's consideration, and the explanation offered by the girl and Meyers was that the girl was to give birth to a child, and it was feared that if she were to be subjected to the ordeal of participating in a criminal prosecution before the child was born, it would have a seriously ill effect on her and the well–being of the unborn child. As evidenced by its verdict, the jury apparently was satisfied with the explanation. Likewise the fact that prior to the arrest of appellant the girl accepted gifts from him was a matter for the jury's consideration. An attempt was made by appellant to show that the girl had been carrying on intimate relations with Meyers prior to her marriage to him. Both denied having done so; but even though their conduct justified such an inference, that fact would not serve as a legal defense to the criminal act committed by appellant. Also in defense of the charge appellant and his wife testified that prior to filing the charge against appellant the girl and Meyers tried to obtain money from him and his wife. But this was emphatically denied by Meyers and the girl; moreover, the police officer who arrested appellant on the present charge testified that at that time he asked appellant whether “* * * anybody approached him to get money out of him in this case yet, anything mentioned about money” and that he replied “no, there hadn't”.
When appellant's wife returned from Poland she was evidently enraged because of her daughter's marriage to Meyers, and considerable testimony was given at the trial as to her violent demonstrations toward him; but it would seem unnecessary to go into details concerning those matters because the only importance that could be attached thereto would be to show that she entertained a bitter feeling toward Meyers.
Nor does the fact that the girl failed to make complaint of appellant's relations with her during the preceding five years constitute ground for setting aside the verdict. A situation somewhat similar arose in the case of People v. Gump, 17 Cal.App.2d 221, 61 P.2d 970, 971, and the court there said: “In his argument attacking the sufficiency of the evidence, the appellant emphasizes the failure of the prosecutrix to make timely complaint of the alleged attack and also the complete lack of any corroborating evidence. Counsel frankly concedes that neither factor is essential to a conviction of the crime charged, but he urges that they are persuasive evidence of the improbability of the story of the prosecutrix. There is much force in the argument that it is highly improbable that these relations could have existed for a period of six years without mention to anyone, and grave suspicion is cast upon the story when it is shown that it was only told after trouble had arisen between father and daughter over her relations with others. But these suspicions are not sufficient to support appellant's plea that the judgment should be set aside. The jury believed the testimony of the prosecutrix, and the trial judge was satisfied to let the verdict stand. We cannot say that the testimony is so inherently improbable that there is not evidence to support the verdict.” The same may be said of the present case.
Two of the assignments of error relating to the admissibility of evidence are based on certain preliminary questions asked the prosecutrix on direct examination, and questions asked her mother on cross–examination concerning the same matter. In substance the questions were as to whether appellant prior to his marriage to Dorothy's mother lived “at” her home. We find nothing therein that calls for a reversal. That portion of the record relating to the girl's testimony is as follows:
“Q. Now, can you recall whether previous to the time that your mother and the defendant got married, the defendant was living at the home of your mother?
“Mr. Brennan [counsel for defendant]: Just one minute, we object to that as incompetent, irrelevant and immaterial, entirely outside the issues, and not binding upon the defendant here, in any shape, form or manner.
“The Court: Overruled. * * *
“Mr. Brennan: Just a minute, I want to add to that, if I may, it being understood that it is being added, it is an attempt to impeach the defendant upon particular wrongful acts and put in something entirely irrelevant to the issues involved in this case.
“Mr. Golden [assistant district attorney]: Oh, no, I didn't say ‘living’ with the lady, I said at the house of the lady. Maybe Mr. Brennan is more suspicious than I am.
“Mr. Brennan: Well, I am not suspicious, but I don't want anybody else to get any suspicions.
“The Court: Well, I didn't take the question to carry any other implication other than he was living in the house, that is the way I understood it. The question is, ‘Was he living at the home of your mother?’ A. Yes, he was.”
The same line of questions was propounded to appellant's wife; and appellant contends that they carried the imputation that prior to their marriage they were living in an illicit relationship. In view of the trial court's remarks, however, it cannot be fairly said that the jury understood the question to imply any wrongdoing.
The remaining assignments of error relating to the admissibility of testimony are directed against certain portions of the cross–examination of appellant and his wife, and the redirect examination of a judge of the municipal court who was called as a rebuttal character witness for the people; and all of the testimony elicited thereby involved substantially the same subject matter. In this regard it appears that appellant's wife was a divorcee at the time she married appellant, and that appellant was the father of three children; that there was some question about the legality of his former marriage, and that on several occasions he was arrested for failing to support said children. Conceding that the matters referred to were foreign to the issues that were being tried in the present case, appellant is not in a position to claim that the revealing thereof, over his objection, by the cross–examination of appellant's wife and the redirect examination of the rebuttal witness, constituted prejudicial error, because the same matters were also revealed by the cross–examination of appellant without any objection being made thereto. That portion of his cross–examination, as shown by the record, is as follows: “Q. Now, you say you have some children? A. Yes sir.
“Q. How many? A. Three.
“Q. Are they your children? A. My own children, yes.
“Q. Were you married before? A. Yes sir.
“Q. Are you sure of that? A. Well, I have been married, I have children, didn't I?
“Q. Were you married to the mother of the children? A. Probably I would be married, sure.
“Q. What do you mean, probably? A. Well, I have children from her, I have got three children here now.
“Q. I know you have. I am asking you if you were married to their mother at any time?
“Mr. Brennan: Tell him the circumstances. A. Well, we went out to the City Hall and get a license there; her mother been with us and her aunt been with us, and that is all.
“Mr. Golden: Q. And you have been called upon many times to support those children and haven't done so, isn't that so? A. I have been arrested a couple of times for nonsupport of children, yes sir.
“Q. For those three children? A. Yes sir.
“Q. Now, how is it that you failed to support them and yet you were so generous to Dorothy?
“Mr. Brennan: Just a minute, that is assuming that he failed to support them, if the Court please.
“The Court: If he didn't he can explain it.
“Mr. Brennan: That is all right. A. Three or four years ago has been depression, I couldn't get a job very well, you know, so I support two families together, so we ran short with the money. Sometimes I just fail to pay $15 in month and in the meantime the wife just go down there and get a warrant and arrest me. Many times warrant has been served on me after three days I fail to pay. At the time I pay the first of the month and the third of the month I get the warrant.”
As will be seen from the foregoing, not only was no objection whatever made to that portion of the cross–examination, but when appellant seemed reluctant to disclose the facts his counsel interrupted by instructing appellant to give the circumstances. And later on, during the cross–examination of one of appellant's character witnesses as to her knowledge of appellant's arrest for failure to support his children, counsel for appellant first objected, and then immediately afterwards in effect withdrew his objection and let in the testimony by saying: “All right, we will go into the whole thing.” In that state of the record the law will not permit appellant to complain that he was injuriously affected by the testimony covering the same subject matter given by his wife and the municipal judge, over his objections. As stated in California Jurisprudence (vol. 8, pp. 615–616), error in the admission of evidence is harmless if the fact proved thereby is undisputed or if it is proved by other evidence which is admitted without objection.
The charges of misconduct are not based on any assignments made at the trial, but are founded upon the assumption that the questions asked by the district attorney, eliciting the testimony above referred to, were improper; however, since it appears that appellant is not in a position to claim that such testimony operated to his prejudice, it follows that the asking of the questions cannot be held to constitute misconduct.
The appellant submitted a cautionary instruction, which the trial court refused but instead gave the following: “You are instructed that, while it is true that the law does not require in this character of cases that the prosecuting witness be necessarily supported by another witness, or by corroborating circumstances, still I charge you that the law does require, in this class of cases, that you examine the testimony of the complaining witness with caution.” In the recent case of People v. Lucas, 16 Cal.2d 178, 105 P.2d 102, 104, 130 A.L.R. 1485, it is stated that in all cases of this character a defendant should be afforded the benefit of a cautionary instruction to the general effect that such a charge is easily made and difficult to disprove, for which reason the testimony of the prosecutrix should be examined with caution. However, in that case such an instruction was refused and no other cautionary instruction was given. Nevertheless the judgment was affirmed upon the ground that because of the giving of other instructions upon the presumption of innocence, reasonable doubt, and to the effect that the jury should not act on mere probabilities and should disregard fanciful theories and unreasonable inferences, no prejudicial error was shown. Here a cautionary instruction was given, but not in the exact form outlined in People v. Lucas, supra; however, in addition to the cautionary instruction, the jury was fully and correctly instructed upon the doctrines of presumption of innocence and reasonable doubt. It is our opinion, therefore, that no error has been established.
The court also instructed the jury as follows: “A witness is presumed to speak the truth. This presumption, however, may be repelled by the manner in which he testifies, by the character of his testimony, or by evidence affecting his character for truth, honesty, or integrity, or his motives, or by contradictory evidence; and the jury are the exclusive judges of his credibility. A witness may be impeached by the parties against whom he is called, by contradictory evidence, or by evidence that his general reputation for truth, honesty or integrity is bad, but not by evidence of particular wrongful acts, except that it may be shown by the examination of the witness, or the record of the judgment, that he has been convicted of a felony. However, there is no such evidence in this case. A witness may also be impeached by evidence that he has made, at other times, statements inconsistent with his present testimony.” Appellant contends that the presence of the sentence “However, there is no such evidence in this case” renders the entire instruction erroneous. Upon reading the instruction as a whole, however, it is manifest that the objectionable sentence could be understood in no other way than as applying to the exception which immediately preceded it, to–wit: “except that it may be shown by the examination of the witness, or the record of the judgment, that he has been convicted of a felony”, and this is made more apparent by the admitted fact that there was much contradictory evidence in the case and also evidence relating to the general reputation of the defendant. As said in People v. Lucas, supra, “It is not every error that requires a reversal on appeal. People v. Nolan, 126 Cal.App. 623, 634, 14 P.2d 880. The authorities are legion to the effect that before a judgment may be reversed because of error it must appear from the record that it was prejudicial and caused substantial injury and that a different result would have been probable if the error had not occurred. Murnane v. Le Mesnager, 207 Cal. 485, 495, 279 P. 800; People v. Britton, 6 Cal.2d 10, 13, 56 P.2d 491.” It does not so appear in the present case.
The arguments advanced by appellant in his briefs in an effort to prove that the social relationship between Meyers and his wife and the Zemavaskys continued friendly after the prosecutrix had informed her husband of the alleged assault of May 29, and also in support of his claim that money was a motivating reason for filing the criminal charges, are based, as the record will show, for the most part if not entirely on the testimony given by appellant and his wife; and a reading of the testimony of both will reveal many reasons which would seem to fully justify the jury in refusing to believe their stories. Furthermore, in refutation of the charge of bad faith made by appellant against the district attorney, it would appear that the cross–examination of the Zemavaskys with reference to the criminal prosecution which resulted from his alleged failure to support his children was brought about by the fact that in their testimony they had represented him to be a dutiful and affectionate father. It would seem also that counsel for appellant opened the way for the redirect examination of the prosecution's rebuttal character witness when after said witness had frankly admitted that she was “very much prejudiced against Mr. Zemavasky”, counsel for appellant asked her the direct question, “Do you remember telling me you hoped this man would go to San Quentin?”
After examining the entire cause, including the evidence, it is our belief that the verdict has not resulted in a miscarriage of justice. Therefore the judgment of conviction and the order denying the motion for new trial are and each of them is affirmed.
I agree with the implied admission of the deputy attorney general representing the respondent that prejudicial error was committed during the trial, and that the judgment should be reversed. It seems to me that the refusal of the attorney general's office to attempt to support the judgment is entitled to considerable weight.
It must be conceded, and I do not believe that my associates contend to the contrary, that the question presented to the jury as to defendant's guilt or innocence was an extremely close one. I agree that the evidence is sufficient to support the conviction. I am also aware of the rule that the credibility of the witnesses is for the jury, and not for the appellate court to consider. But the closeness of the case is a matter properly to be considered in determining the seriousness of any error committed during the trial. The attorney general, after reviewing the evidence, states in his brief: “From the foregoing resume it appears that the evidence against appellant was not overly credible.” (Res. Brief, p. 4.) I agree with this conclusion.
It would serve no useful purpose to review the entire record in this dissent. Without attempting to enumerate all of the factors that cast doubt on the prosecution's case, the following serve to illustrate the weaknesses in that case.
1. The prosecuting witness, Dorothy Meyers, contends that she was raped by defendant, her stepfather, on the morning of May 29, 1939, under the circumstances set forth in the majority opinion. This was six days after her marriage to Meyers. Dorothy made no complaint to the authorities until March of 1940. During that period of approximately ten months Dorothy maintained some semblance of a friendly relationship with the Zemavaskys. In September of 1939, on her eighteenth birthday, she accepted birthday presents from them, and at Christmas of that year not only accepted Christmas presents from them, but admittedly both Dorothy and her husband gave the defendant Christmas presents. During this ten–month period Dorothy occasionally visited her mother, and, on occasion, saw and talked with the defendant. Admittedly, during this period, she never mentioned the charge to her mother or to any one else except to her husband. She testified at the trial that she told her husband of the offense about July 4, 1939. In spite of this, Meyers made no complaint to anyone, and not only exchanged Christmas presents with the defendant in that year, but admittedly had a friendly visit with him just before Christmas.
Dorothy also testified that the defendant had forced her to submit to intercourse with him ever since she was twelve years old––a period of five years. During this five–year period she was living with her mother and the defendant, but admittedly made no complaint to her mother, or to anyone else concerning the conduct of defendant.
2. Although there is some conflict, what I consider the most credible evidence shows that towards the end of 1939 or early in 1940, the relationship between Dorothy and her mother was becoming strained; that rightly or wrongly Dorothy felt, as did her husband, that she was entitled to a fund promised her for her education. This dispute over the money was an important issue in the case. It is of some significance that, although defendant and his wife positively testified as to conversations about the money had with Dorothy and her husband in the presence of the parents of Mr. Meyers, the prosecution made no attempt to produce the parents or to explain the failure to do so. It should also be mentioned that just before filing the present charges Dorothy and her husband visited an attorney concerning the matter. Although defense counsel charged that this was done for the purpose of suing defendant civilly, Dorothy and her husband offered no satisfactory explanation of this visit.
3. There are several direct conflicts and contradictions between the story told by Dorothy at the preliminary examination and on the trial. Some of these were explained and some were not. For example, on the trial she was at first very positive that she had told her husband about the rape on May 29, 1939, the day it is supposed to have occurred. Her testimony at the preliminary examination was to the effect that she had not told him until early in July. Her attempt to reconcile this conflict is not satisfactory. There is also a conflict, which is very hard to reconcile between her testimony at the preliminary and at the trial as to whether she was wearing slacks or a dress when she arrived from Los Angeles on the morning of May 29th––an important issue in the case. The same conflict, only partially explained, exists as to whether she talked about money to her mother prior to bringing these charges.
It is elementary, of course, that these conflicts and contradictions, as well as the question of the credibility of defendant and his witnesses, were for the jury. I agree that this court has no power to weigh the evidence or to pass upon the credibility of the witnesses. It is equally elementary, however, that the defendant was entitled to a fair trial. This court is not only permitted to, but must consider the state of the evidence in determining whether any errors committed were prejudicial. Where the evidence is overwhelming against a defendant errors in the introduction of evidence will not necessarily require a reversal under article VI, section 4 1/2 of the Constitution. In such cases it can be said, as a matter of law, that such errors were not prejudicial. But in a close case, and certainly in one as close as the instant one, any error of a substantial nature may require a reversal. If the reviewing court has any reasonable doubt as to whether the error is prejudicial, that doubt must be resolved in favor of defendant. Under such circumstances, article VI, section 4 1/2 has no application.
There is another factor that must be considered in this particular case. This is a rape case. The courts have frequently commented on the difficulties facing an accused in his attempt to refute the charge in such cases. Any evidence improperly admitted which tends to discredit the defendant or his witnesses in such a case throws an intolerable burden on the defendant. The error in such a case is far more significant than it might be in a different kind of case.
It was undoubtedly these factors which led the attorney general to impliedly concede that the errors hereafter to be discussed were prejudicial, and to refuse to offer any argument in support of the judgment.
During the course of the trial the prosecuting attorney consistently attempted to blacken the character of the defendant and of Mrs. Zemavasky, his wife, and one of his principal witnesses. Time after time the prosecuting attorney was permitted, sometimes over objection and sometimes without, to introduce evidence showing that defendant was probably not lawfully married to his first wife; that the three children of that marriage were probably illegitimate; that he had been frequently charged with nonsupport of those children, and that his present wife was living at the same house with him prior to their marriage. This evidence could have no other purpose but to blacken the reputation and character of defendant and his wife. It was a clear–cut attempt to impeach the defendant and his wife by evidence of other wrongful acts in direct violation of the law. Sec. 2051, Code Civ.Proc.
It is perhaps true, as implied in the majority opinion, that the evidence that Dorothy and her mother lived at defendant's house prior to the time that defendant and the mother were married, was admissible to show when defendant first became acquainted with Dorothy. But even as to this evidence, there is considerable doubt as to whether it was offered in good faith. Dorothy had testified as to acts of intercourse since she was twelve, which was September 3, 1933. Defendant had married Mrs. Zemavasky in June, 1932. The period that Mrs. Zemavasky is supposed to have lived at defendant's house was before June of 1932. The district attorney knew these facts. Yet he did not ask the prosecutrix whether she had lived with her mother and defendant since their marriage in June of 1932, which would have more than covered the entire period that the illegal relationship is supposed to have existed, but he asked: “Now can you recall whether previous to the time that your father and mother got married the defendant was living at the home of your mother?” What purpose could there be in the very form of the question but to blacken the character of defendant and Mrs. Zemavasky? The same error was committed in a whole series of questions, some of which were objected to, as to the circumstances under which and the time at which defendant and Mrs. Zemavasky lived in the same house prior to their marriage. The real purpose of the district attorney is disclosed by his statement made before the jury during an argument over the admissibility of such evidence that “* * * here is a certain background which would make it more or less likely that the girl's story is true”.
There can be no doubt that the evidence of the illegality of defendant's prior marriage, that he had three illegitimate daughters, and that he had frequently been arrested for nonsupport of these children was not admissible. These were matters foreign to the issues in the present case. The majority opinion concedes that this is so, but holds that since defendant's counsel did not object to the district attorney's cross–examination of defendant on these issues, that he cannot now object to that admittedly erroneous evidence. This conclusion is based on the well–settled rule that error in the admission of evidence is harmless if the fact involved is proved by other evidence which is admitted without objection. That is a sound and salutary rule. The usual situation where it is applied is where the defendant or his witnesses testify as to a fact, and then object to the prosecuting attorney producing his side of the transaction in issue. But that rule should not be applied to the present case for the following reasons: These facts were all first brought out, over defendant's objections, on the cross–examination of Mrs. Zemavasky. At that stage of the trial error was committed. Then the defendant took the stand. On his direct examination none of the matters under discussion was gone into. On cross–examination the district attorney began to ask questions concerning these matters. In view of what had already taken place it would be useless to object. The trial court had already ruled. Defendant made no objection, and the conversation took place which is set forth in the majority opinion. But that is not all. Then what happened? The prosecuting attorney cross–examined the three daughters and the witness Kirichenko on the same subject matter. Then the prosecution produced a Municipal Judge of San Francisco as a rebuttal character witness. After testifying that defendant's reputation for “truth, honesty and integrity, morality and upright living” was “bad”, she was cross–examined by defendant's counsel. He properly brought out the fact that she was prejudiced. She admitted that she knew nothing about the facts of the case then on trial; that she was “very much prejudiced against Mr. Zemavasky”, and admitted telling counsel for defendant that she “hoped this man would go to San Quentin”. Then on redirect examination, over defendant's objections, she was permitted to answer the question, “On what, Judge, do you base that hope?” She replied, “Well, I met Mr. Zemavasky in the court charged with omitting to provide for three minor illegitimate children. I knew his former wife, that he had gone through a service that was not a marriage and then left her with these three children. I made every effort to collect money from him for those three children and to no avail; I made arrangements with him to come to my office at the City Hall; he never kept it, and those three children had to be taken care of by the City and County of San Francisco”. She was the last witness. The question and answer were not only improper because they tended to bring out evidence of other wrongful acts, but also because it is an unquestioned rule of evidence that when any witness admits bias and prejudice on cross–examination, on redirect the reasons for such prejudice cannot be gone into, at least where such reasons involve other alleged offenses outside the issue. The rule, supported by many cases, is stated as follows in 70 Cor. Jur., p. 1007, § 1217: “* * * nor does the witness' unqualified admission of ill will open the door to proof of the reasons, therefor, especially where such reasons involve other alleged offenses outside the issue * * *.” The reason for the rule is obvious. When the defendant is able to prove that a prosecution witness is prejudiced, if that witness could then explain the reason for the prejudice by stating what he knows about other wrongful acts, it would bring into the case all kinds of extraneous and unrelated offenses not relevant to the issue, and would permit the prosecuting attorney to do indirectly what he cannot do directly. Exactly the same problem involved in the instant case was presented in Sneed v. State, 40 Ariz. 441, 14 P.2d 248. At page 249 of 14 P.2d the court stated: “The reason why the witness was hostile towards appellant was not a proper subject for either direct or redirect examination by the prosecution. The elicitation by the appellant of the witness' ill feeling towards him did not open the door to proof by the prosecution that such ill feeling was the result of criminal acts of appellant against the witness. Otherwise it would be most dangerous to cross–examine a witness as to his bias and prejudice towards the accused, for, if such reason may be given, all kinds of extraneous and unrelated offenses might be detailed to the jury, so that the trial would be not of the particular offense charged but of many offenses not charged. The court should have sustained the appellant's objection on the ground of the incompetency of the testimony to prove any issue of the case.”
The majority opinion holds that the erroneous admission of all this evidence was not error because appellant's counsel failed to object to the cross–examination of defendant and of Nora Zemavasky on these issues. If defendant had produced evidence on these issues there would be a waiver. But is it the law that when a prosecuting attorney on cross–examination asks a witness a question concerning other wrongful acts, which question he knows or ought to know is improper, and the defendant, having previously objected, does not object again, that then the prosecuting attorney can with impunity ask any future witness the same question, and that it is not error for the trial court to overrule the objections? If that is so, one slip by defendant's counsel will turn a criminal prosecution for rape into a trial of any other offense with which the defendant may have been charged in the past. Such a rule loses sight of the realities of the problem. It must be remembered that a criminal prosecution is not a game of skill. The defendant is entitled to a fair and impartial trial. The prosecuting attorney is duty bound to see that the defendant receives such a trial. A reading of the record in this case convinces me that evidence was improperly admitted. I have, to say the least, a reasonable doubt as to whether the defendant would have been convicted without that evidence. For that reason I agree with the implied admission of the attorney general that the judgment and order should be reversed, and a new trial ordered.
I concur: WARD, J.