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District Court of Appeal, Second District, Division 3, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Paul Wesley SWEENEY, Defendant and Appellant.*

Cr. 6824.

Decided: June 01, 1960

Paul Wesley Sweeney, in pro. per., Harold J. Ackerman, Joseph Flaig, Gerald Lenoir and Crispus A. Wright, Los Angeles, for appellant. Stanley Mosk, Atty. Gen., and Norman H. Sokolow, Deputy Atty. Gen., for respondent.

By information defendant was accused of giving away amidone, a narcotic, and of offering and giving a bribe to a deputy sheriff. A jury convicted him of both offenses. He appeals from the judgment sentencing him to state prison, from the sentence, and from the order denying his motion for a new trial.

Viewing the evidence in the light most favorable to the People and assuming in favor of the findings of guilt the existence of every fact which the jury reasonably could have inferred from the evidence, as we must do (People v. Caritativo, 46 Cal.2d 68, 70, 292 P.2d 513), the salient facts are these: On August 26, 27, and 28, 1958, Willie Williams, a female Negro and a narcotic addict, was a patient in Los Angeles County Hospital. Defendant visited her in the hospital on several occasions on those days. The attendants were suspicious she was receiving narcotics from someone. On August 28 defendant was observed giving her a quantity of amidone. He was seized by a guard and turned over to Deputy Sheriff Nichols. With defendant's permission, Nichols searched his car, a 1957 Lincoln. Nichols told defendant he was not going to do anything in the case until he had an analysis from the crime laboratory, and released him.

On returning to his office Nichols was ordered by his superior to contact defendant later and learn the source of the narcotics. About 6:30 that evening Nichols telephoned defendant. Nichols asked defendant if he would like to talk to him. Defendant said, ‘Yes, any time; any place.’ Nichols said to meet him at a named restaurant in Los Angeles. About 7 p. m. defendant arrived at the restaurant. Nichols was at a table. Two other officers were seated nearby. Defendant said, ‘This is sure a terrible mess.’ The officer said it was. Defendant asked Nichols if they had found the contents of the pill. The officer said defendant knew what the pill was. Defendant said he did not. The officer said he hoped Willie Williams had not swallowed enough pills to kill her. Defendant said, ‘Well, she didn't. She only swallowed five pills.’ Nichols asked defendant how he knew. Defendant said Willie Williams had told him. Nichols remarked that defendant had a beautiful automobile. Defendant said, ‘I would sure like to see you driving it.’ Defendant asked Nichols if, in looking at his (defendant's) property at the hospital, he (the officer) had noted a little red book with figures in it. Nichols said he had not. Defendant said, ‘Well, if you had seen that book, you would know I am not too wealthy a man. My wife is pregnant. I owe payments on my car, and I haven't been practicing law too long.’ This conversation then occurred: Defendant: ‘Well, look Nichols, * * * I know a lot of boys. Just what is it that you want?’ Nichols: ‘Just what is it that you want, Paul?’ Defendant: ‘Well, as I told you, I am not too wealthy a man. * * * What would be right with you?’ Nichols: ‘Well, what won't hurt you.’ Defendant: ‘Well, how is $500?’ Nichols: ‘Well, that is just fine.’ Nichols asked defendant if he had the money on him. Defendant said he did not. They arranged to meet at 10:30 the next morning in front of the Federal Building in Los Angeles. Defendant said, ‘When I see you, I will have it in one hundred dollar bills in my hand. I will walk over and we will just exchange greetings and I will pass the money to you that way.’ During the entire conversation Nichols had a Miniphone with a wire recorder pinned beneath his coat.

About 10:30 the next morning defendant met Nichols outside the Federal Building and handed him five $100 bills. Nichols then placed defendant under arrest. After his arrest defendant was taken before a deputy district attorney. The deputy asked him how first mentioned the $500. Defendant said, ‘Well, I guess I did.’

The sufficiency of the evidence to sustain the verdicts is not challenged. Defendant's assignments of error are that the court erred in its ruling on an affidavit of prejudice, in rulings on the admissibility of evidence, and that the court and the district attorney were guilty of prejudicial misconduct.

When the cause was called for trial on April 13, 1959, defendant filed an affidavit of prejudice against Judge Rhone, the trial judge, which is set out in the margin,1 and moved that he disqualify himself. The judge determined he was not disqualified. Citing Code of Civil Procedure, section 170, defendant asserts the court erred in not referring the matter to the presiding judge for assignment to another judge for determination. The point is untenable. On the caption of his affidavit defendant stated he was proceeding under section 170.6 of the Code of Civil Procedure. Section 170.6 was not applicable to criminal actions at the time of trial of this action. Stat.1959, c. 640, § 1. Section 170 was the controlling statute. Section 170 requires that the allegations in a statement charging bias and prejudice of a judge set forth specifically the facts on which the charge is predicated. A statement containing nothing but conclusions and setting forth no facts constituting a ground for disqualification can be ignored or stricken from the files by the trial judge. Where the statement is insufficient the judge can so determine, whereupon the procedure provided by section 170 is not applicable. Where no facts are set forth in the statement there is no issue of fact to be determined. It is only where an appropriate issue of fact is presented by the statement that a judge is prevented from passing of the question of his own disqualification under section 170. Mackie v. Dyer, 154 Cal.App.2d 395, 399, 316 P.2d 366. The affidavit charging Judge Rhone with prejudice stated nothing but conclusions. No facts were set forth. It was properly ignored.

Willie Williams was in room 8321 of the hospital when defendant handed her the amidone. Over objection, a photograph of room 8321 was admitted in evidence. Defendant claims error. There was no error. A proper foundation was laid for admission of the photograph and the court told the jury it was received for purpose of illustration only. The photograph was admissible for that purpose. People v. Brubaker, 53 Cal.2d 37, 346 P.2d 8; People v. Atchley, 53 Cal.2d 160, 346 P.2d 764.

The guard who seized defendant at the time he handed Willie Williams the amidone was named Beeton. Beeton was a witness for the People. On cross-examination he was asked if after the preliminary hearing he had talked to any of the witnesses in connection with the case. He answered that he ‘must have.’ He was then asked, ‘You told at least two such persons not to discuss this case with the defense investigator, didn't you?’ Objection to the question was sustained on the authority of Schindler v. Superior Court, 161 Cal.App.2d 513, 327 P.2d 68. Defendant asserts error. Schindler is not authority for the ruling. It was mandate to compel inspection of certain writings before trial. Here inspection of writings was not sought. Beeton was merely asked whether he told at least two witnesses not to talk about the case to a defense investigator. The ruling was erroneous. Defendant was not required to make a motion to permitted in advance of trial to interview witnesses as the court indicated. He had the right to interview any witness at any time. Defendant was entitled to show, if he could, that Beeton was biased and prejudiced against him. If the answer had been yes, the jury might have found bias and prejudice. However, the error was cured. On further cross, this occurred: ‘Q. Now, Mr. Beeton, you talked to some of the witnesses in connection with this case, didn't you? A. I don't know when you mean, counsel. I have talked to all of the witnesses in this case. Q. You told some witnesses not to discuss this matter with anyone from the defense? A. No, never. Q. You made no such statement? A. No, sir.’

Later Dr. Tonge, who had treated Willie Williams at the hospital, was called as a witness by the People. On cross-examination he said he made a telephone call to Beeton. He was asked, ‘Mr. Beeton told you at that time that you were not to talk to the investigator, is that correct?’ An objection was sustained on the ground a proper foundation had not been laid, the court stating: ‘The same rule applies to this as it applies to impeachment. You still have to lay the foundation. You cannot lay it generally; you have to lay it specifically on each witness.’ Defendant claims error.

For the purpose of discrediting a witness by his own admissions, it is proper on cross-examination to question him as to prior inconsistent statements, without calling his attention to the time, place, and persons present. People v. Jones, 160 Cal. 358, 365, 117 P. 176. If the answer of the witness proves unfavorable the proper course, if it is desired to impeach the witness, is to follow the interrogatory with a strictly impeaching question. People v. Coutcure, 171 Cal. 43, 49, 151 P. 659. Before a witness may be impeached by proof of inconsistent statements a proper foundation must be laid; that is to say, in the language of the code, ‘the statements must be related to him, with the circumstances of times, places, and persons present, and he must be asked whether he made such statements, and if so, allowed to explain them.’ Code Civ.Proc. § 2052. The methods prescribed by the code for the impeachment of a witness are exclusive. People v. Holman, 72 Cal.App.2d 75, 97, 164 P.2d 297. If the fact of bias or hostility of a witness is derived from declarations of the witness, he must first be given an opportunity to explain them under the rule laid down by section 2052. Witkin, California Evidence, 692, § 650, 708, § 670.

Wigmore says as a matter of principle the same rule applies to the use of evidence of former utterances of a witness indicating bias ‘for the same reasons of fairness that require a witness to be given an opportunity of denying or explaining away a supposed self-contradictory utterance require him also to have a similar opportunity to deny or explain away a supposed utterance indicating bias.’ III Wigmore on Evidence 512, § 953. Also see Baker v. Joseph, 16 Cal. 173, 177–179; Fagan v. Lentz, 156 Cal. 681, 689, 105 P. 951; In re Estate of Bedford, 158 Cal. 145, 147, 110 P. 302; annotation: 16 A.L.R. 984; 2 U.C.L.A.Law Rev. 32, 39.

The facts in Ash v. Soo Sing Lung, 177 Cal. 356, 170 P. 843, 844, were these: ‘During the trial a witness named E. H. Morgan was called and examined on behalf of the defendant. Upon cross-examination he was asked, the following questions, and gave the following answers: ‘Q. Haven't you interviewed witnesses for the defendant?’ A. No, sir. Q. Haven't you talked to any of his witnesses? A. No, sir; I haven't. Q. Haven't you gone around trying to get witnesses for him? A. ‘No, sir, I haven't.’ The evident purpose of these inquiries was to show interest on the part of the witness in the success of the defendant's case. Thereafter in rebuttal the plaintiff produced a witness named Saffell, who was asked by plaintiff's counsel if he knew E. H. Morgan, and answered that he did. He was then asked if since the damage done to plaintiff's orchard Mr. Morgan had any conversation with him with reference to his becoming a witness in the case. He answered in the affirmative. He was then asked if Mr. Morgan requested him to become a witness, and he answered that he did. Thus far no objection had been made to the foregoing questions or answers. He was then asked the question, ‘What did he say to you?’ to which the defendant objected upon the ground that it was irrelevant, incompetent, and immaterial. The court sustained this objection.' The court held (177 Cal. at page 359, 170 P. at page 845):

‘The court did not err in sustaining the objection. The purpose of the inquiries put to this witness being that of showing the interest of the witness Morgan in defendant's case, that purpose was completely subserved by the testimony of the witness Saffell, given without objection, to the effect that he had been interviewed by Morgan and requested to become a witness in the case. The particular question objected to called for declarations of the witness Morgan, and it is a well-settled rule that, when a witness is sought to be impeached by evidence of his declarations showing his interest in the case, the foundation for such as inquiry must first be laid by directing he attention of the former witness to the particular statements sought to be proven, with such circumstances of time, place, and persons present as will give the witness intended to be impeached a full opportunity for explanation.’

The question asked Dr. Tonge, whether Beeton told him not to talk to the investigator, called for declarations of the witness Beeton. A proper foundation had not been laid in the cross-examination of Beeton. The trial court ruled correctly in sustaining the objection.

Deputy Sheriff Nichols testified on cross-examination he made a tape recording from the Miniphone he had on his body at the time of his conversation in the restaurant with defendant; he gave the tape and the Miniphone to Lieutenant O'Keefe, who put it in a safe in the sheriff's office; he listened to the tape a day or two before the preliminary hearing. In an attempt to impeach the witness, counsel for defendant read from his testimony at the preliminary the following: ‘Yes, sir. They were together when I put them in there, both the Miniphone and the wire, and I did not go back to the safe to look at it or to listen to it after the initial placing,’ and asked if he did not so testify at the preliminary. The witness answered, ‘Yes.’ The court immediately stated, ‘Well, there is nothing inconsistent there.’ Defendant says the court erroneously invaded the province of the jury. The court at another juncture of the case made a similar statement. The judge's comments did not go afield from his proper function under the Constitution. Const. Art. VI, § 19; People v. Friend, 50 Cal.2d 570, 574–580, 327 P.2d 97.

Deputy Sheriff Brooks was called by defendant. On direct examination he testified that on August 29, 1958 he was the captain in charge of the sheriff's narcotic detail; he had been served with a subpoena duces tecum to produce ‘Miniphones, wire recordings, tapes relating to Paul Sweeney’; he had searched the safe in the narcotic bureau of the sheriff's office and the storage locker. He was then asked: ‘Q. Did you go to Officer Nichols' home and make a search there? A. No, sir, I did not. Q. Did you go to Mr. Nichols' drawer in the Narcotic Bureau and make a search there? A. No, sir, I did not. Q. When you went to the Division of Technical Services, did you find any wire or tape relating to Paul Sweeney? * * * A. No, sir.’ He then testified he did not find the wire or tape and that it was the custom of the sheriff's office, where one has used a recording device and it has been played back, to put it in the safe. On cross-examination the following occurred:

‘Q. Did Mr. Wright [attorney for defendant] ever tell you other than here that you were to search Mr. Nichols' home?

‘Mr. Lenoir [attorney for defendant]: That calls for hearsay now, your Honor. Object on that grounds.

‘Mr. Carr [district attorney]: All right, I am going to charge Mr. Wright with had faith in asking that question.

‘The Court: No. I will overrule the objection.

‘Mr. Lenoir: May we cite the last statement of the District Attorney as misconduct?

‘The Court: No, you may not. You may answer the question. Would you read the question? (The reporter read the question.)

‘The Witness: No, sir.

‘Q. By Mr. Carr: As an officer, you know that the service of what Mr. Wright calls a subpoena duces tecum, that is to bring into Court certain property. Does it give you the right to go into somebody else's home and get the property?

‘Mr. Lenoir: That calls for a legal conclusion, now, your Honor.

‘The Court: The objection is sustained.

‘Q. By Mr. Carr: Did Mr. Wright give you a search warrant to go to Mr. Nichols' home and search for a tape recording, a wire recording, a spool of wire or a spool of tape?

‘Mr. Lenoir: Just a minute. Object, there is no showing that Mr. Wright has the authority to issue a search warrant. I am objecting on that ground.

‘The Court: Well, he has the authority to secure a Court order for that purpose. Overruled.

‘Q. By Mr. Carr: Did you? A. Well, will you read it? (The reporter read the question.)

‘The Witness: No, sir.

‘Q. By Mr. Carr: Now, as an officer, you know that you don't go into somebody's house and get their property without a search warrant issued by a Court; you know that?

‘Mr. Lenoir: Just a minute. Object to that. There are certain circumstances in which you don't need a search warrant, and counsel knows that. I object to this question as calling for a legal conclusion of this officer.

‘Mr. Carr: Now, those circumstances have not been shown here, Mr. Wright, and I again charge him with bad faith in asking the question, whether this officer went pursuant to a subpoena duces tecum to somebody's house other than to his own to look for property.

‘The Court: When he questioned on direct examination if he searched the home, he opened the subject matter up, and the subject matter can be explored. The objection is overruled.

‘Mr. Lenoir: That is on the last question on the grounds that it is a legal conclusion of this officer?

‘The Court: It may be a conclusion, but because of the inference that is drawn from the asking of that question, I think he is entitled to answer it.

‘Mr. Lenoir: All right, your Honor.

‘The Court: Will you read the question? (The reporter read the question.)

‘The Witness: Yes, sir.’

Defendant contends the rulings were prejudicially erroneous. We think not. When counsel asked the witness on direct whether he went to Nichols' home and made a search there, he drew an inference that it was the duty of the witness to do so in response to the subpoena duces tecum. There was no such duty. Counsel also drew an inference that the witness had not taken all reasonable steps to locate the wire and tape. It was entirely proper for the district attorney on cross-examination to dissipate any unfavorable inference left by the direct examination. ‘The opposite party may cross-examine the witness as to any facts stated in his direct examination or connected therewith, and in so doing may put leading questions * * *.’ Code Civ.Proc. § 2048.

It is next asserted the court erred in refusing defense counsel the right to approach the bench or to make a motion from the counsel table to prevent the district attorney from consistently arguing questions of law in the presence of the jury. While the court was making a statement, counsel for defendant interrupted and asked permission to approach the bench. The court told him he could not. Counsel then asked if he could make a motion. The court told him he could not and continued with the statement he was making when he was interrupted. When the court concluded his statement, counsel for defendant continued with his cross-examination of the witness on the stand. Later the court asked counsel what motion he wanted to make. Counsel said he did not remember. If there was any error it was that of counsel, not that of the court.

Early in the direct examination of Officer Nichols he was asked if before going to the hospital he had been assigned there. He said he had been by Lieutenant O'Keefe. Asked who O'Keefe was, he said he was his immediate superior in the narcotic detail and that the assignment was in connection with his duties as an officer assigned to the sheriff's narcotic detail. He was asked if he had a conversation with anyone on arriving at the hospital. He said he talked to a Mr. Gross and no one was present. There was no objection to any of the foregoing testimony. He was then asked, ‘This conversation with Mr. Gross, did that involve something concerning narcotics?’ Counsel for defendant objected on the ground the question called for hearsay. The objection was overruled and the officer answered, ‘Yes, sir.’ Defendant claims the ruling was error. While the ruling was technical error, it was obvious from the previous testimony of the officer that Nichols went to the hospital ‘concerning narcotics.’ The question objected to and the answer were innocuous.

Defendant complains of an argument between the district attorney and one of his counsel which took place out of the presence of the jury after a noon recess had been declared. In the course of the argument the district attorney threatened one of defendant's counsel with physical violence. Defense counsel complained to the court and asked to withdraw from the case because he felt he was restrained from properly representing defendant. The request was denied. Defendant says the court erred. We find no error. Since the entire matter occurred out of the presence of the jury, defendant could not have been prejudiced. Further, the record shows that after the incident counsel conducted an able and thorough defense.

It is urged the testimony of Officer Nichols as to the conversation with defendant in the restaurant was secondary evidence and should not have been admitted. He says the recording was the best evidence of the conversation. The point has no merit. The so-called best evidence rule has no application to the facts at bar. Where one testifies to what he has heard such testimony is primary evidence, regardless of whether the fact or facts are reduced to writing or incorporated in a recording. The witness is not testifying as to what the recording contains, but as to what he observed and knew because he heard it. People v. Kulwin, 102 Cal.App.2d 104, 109, 226 P.2d 672; People v. Sica, 112 Cal.App.2d 574, 587–588, 247 P.2d 72; annotation: 58 A.L.R.2d 1024, 1044–1045.

In his closing brief defendant says what he was objecting to was Officers Nichols and O'Keefe testifying to the sounds they heard on the recording device without a foundation as to the whereabouts of the recording. The testimony was that on the morning of defendant's arrest and also a day or two later Nichols had played the recording and that there were high, screeching noises and a lot of static, but no words or understandable sounds. There was a sufficient foundation. There was much evidence that a thorough search for the recording had been made by sheriff deputies and that it could not be found.

It is contended it was error to permit the use of the hospital file for Willie Williams. Several witnesses refreshed their memories by using entries made by them in the hospital file with respect to Willie Williams. No objection was made to their doing so. The requisite foundation was laid for use of the file. However, it was not introduced in evidence. There was evidence that Willie Williams, while defendant was visiting her, asked a nurse for permission to go downstairs to get some money and that the nurse declined. Over objection the nurse testified from the hospital record that Willie Williams had no valuables at the hospital. Defendant says the ruling was error. The evidence was admissible to show by inference from the absence of money on deposit with the hospital that the request of Willie Williams was a subterfuge to permit her and defendant to be alone.

An attorney called as a witness by defendant was asked if he knew defendant's ‘general reputation in the community where he resides for truth and honesty and integrity.’ Objection by the People was sustained. The witness testified defendant's reputation for integrity was excellent. Two other attorneys and a private investigator testified to the same effect. Defendant claims the court erred in not permitting him to establish that his reputation for truthfulness is good. The ruling was proper. The People had not offered evidence that defendant's general reputation in the community for truth was bad. It is only in cases where the defendant's reputation is attacked by evidence that his reputation for truth is bad that evidence on the other side is admissible. An exception to the rule is when such trait is in issue. People v. Sellas, 114 Cal.App. 367, 372–376, 300 P. 150. Such trait was not in issue at bar. People v. McMillan, 59 Cal.App. 785, 212 P. 38, was a prosecution for rape on a girl 14 years old. The defendant testified, contradicting the testimony of the prosecutrix. The court sustained objections to evidence of defendant's reputation for truth, honesty and integrity and for peace and quiet. The court stated (59 Cal.App. at page 786, 212 P. at page 39):

‘Appellant argues that, since the defendant squarely contradicted the testimony of the prosecutrix, the evidence offered was highly important to show that he was worthy of belief. The reputation of a witness for truth, however, cannot be supported by such evidence until it has been challenged by evidence produced by the party against whom he has testified. Evidence of his general reputation for traits of character involved in the charge against him may, of course, be given, but the evidence offered did not relate to such traits. The traits of character involved in a charge such as this are virtue, chastity, and morality.’

People v. Cowgill, 93 Cal. 596, 29 P. 228, was a prosecution for murder. The court said (93 Cal. at page 597, 29 P. at page 229):

‘It is true that appeallant was a witness in his own behalf; but evidence is not admissible to prove that the character of a witness for truthfulness is good, unless the opposite party has tried to impeach him by showing that his general reputation is bad.’

On direct examination defendant testified he is an attorney at law and has been since March 1955; Nichols requested the $500; he talked only to his wife about the matter. On cross-examination he testified that from the time Nichols requested the $500 until the following morning when he paid the money, he was upset and nervous; one of the reasons he promised to pay was that he did not wish to ‘secure adverse publicity, or notoriety.’ He was then asked whether he knew Judge Jefferson. He said he did. He was then asked, ‘He is one of the leaders of the community of the Negroes?’ Without objection he answered, ‘I don't know him personally.’ Defendant is a Negro. He said he did not know Judge Griffith personally. He was asked whether he knew Bernard Jefferson, Judge Jefferson's brother. He said he did. At this point counsel for defendant asked the court to have the district attorney make an offer, saying, without stating an objection, that the evidence was immaterial. The district attorney explained that defendant claimed he was ‘pressured’ into paying the $500 and that between the time he said he was solicited and the time he paid, he did not contact any of the named individuals ‘to whom a young lawyer might turn when confronted with a problem of this kind.’ The court, assuming an objection had been made, overruled it. Without objection defendant then testified he did not know Judge David Williams; he knew a number of deputy district attorneys, the United States attorney, the chief United States narcotic officer; and that between the time he parted company with Nichols on the 28th until he paid the money, he did not contact any of the persons he had been asked about. Defendant claims the district attorney was guilty of prejudicial misconduct in conducting this line of imquiry; that all of the persons named are Negroes; that it was ‘an obvious attempt to call into play a racial issue.’ In the first place, there was no misconduct. No racial issue was called into play. All the men named by the district attorney are not Negroes. The Negroes mentioned are highly respected members not only of the Negro community but of the entire community. They are men to whom defendant might have thought he could go for advice if he was innocent. In his opening statement counsel for defendant stated defendant valued his standing with members of his race. While rather farfetched, we cannot say, as a matter of law, that an inference could not be indulged that defendant's failure to contact a prominent member of the Negro race indicated a consciousness of guilt. In the second place, since there was no objection to the question as to whether Judge Jefferson was one of the leaders of the community of Negroes and to the questions asked after the district attorney's explanation, defendant is in no position to raise the point. People v. Millum, 42 Cal.2d 524, 526, 528, 267 P.2d 1039.

Willie Williams was called as a witness for defendant. On direct examination she testified: Defendant did not at any time while she was in the hospital bring her ‘any pill or any narcotic whatsoever.’ About a month prior to the time she was on the stand, Nichols visited her in the county jail and told her defendant had ‘burned one of his agents, and he did not like him,’ that the only way they could make a case against defendant was for her to testify against him, that the recording would never get into court, and he would see a judge with reference to her sentence in another case. On cross-examination she admitted she had been recently convicted of two charges of possessing narcotics, she had known defendant about two years prior to August 26, 1958, and beginning in February 1959 through April 13, 1959 she had been visited by defendant in the county jail 17 times. Over objections, she testified he had not given her any money. She had had an interview with Mary Mattis, a deputy probation officer, about the third week in February 1959. Asked if she had not told her at that time that defendant had helped her financially, she answered, ‘I don't remember.’ Asked if she has not told Mary Mattis she had no monthly income, that she was aided financially by defendant, and that he paid her rent of $3 a day and gave her money for food, she answered, ‘I guess so.’ She was next asked if she had not told Mary Mattis that between 1956 and 1957 she had lived with defendant and there were two children born of the union. Objection was made to the question on the grounds it was irrelevant and immaterial and that no proper foundantion had been laid. The objection was overruled. She answered, ‘I don't remember whether I did or not.’ She was then asked if between 1956 and 1957 she and defendant had not lived in a common-law relationship. Objection was made on the ground the matter sought was irrelevant and immaterial. She answered, ‘No, we did not. * * * No, I did not live with Mr. Sweeney in any common law relationship at any time.’ She was then asked, ‘You have two children whom you claim Mr. Sweeney is the father, is that right?’ Without objection, the witness answered ‘No.’ She was then asked if she had not told that to Mary Mattis. Without objection, she answered, ‘I don't know, I was using narcotics at the time. I might have said anything to this woman.’ An objection was then made and overruled.

In rebuttal Mary Mattis, a deputy probation officer, was called as witness for the People. At the beginning of her examination counsel of both sides agreed that the testimony she was about to give was solely for the purpose of impeachment and was to be considered only in determining the credibility of Willie Williams. Mary Mattis then testified without objection that in the third week of February 1959 she had a conversation with Willie Williams in which the latter told her that between 1956 and 1957 she (Willie Williams) lived with defendant in a common-law relationship and there were two children born as a result of the relationship; and that she had no monthly income and was aided financially by defendant who paid her rent of $3.00 a day and gave her money for food.

Later Willie Williams was called for further cross-examination. She was shown two certified copies of certificates of birth. She admitted she signed the birth certificates and stated therein tht defendant was the father of a child born September 20, 1957 and of one born August 29, 1958, that he was an attorney, and that she had given such information to the individual who prepared the certificates. The foregoing testimony was given without objection. On redirect examination she testified the certificates were false. The birth certificates were then offered in evidence. Defendant objected on the grounds they were hearsay and immaterial. The objection was overruled. The court told the jury the certificates were received for the limited purpose of impeachment. Defendant asserts it was error to receive the testimony of Willie Williams on cross-examination, to receive the testimony of Mary Mattis in rebuttal, and to admit the certificates in evidence. There was no error.

The cross-examination of Willie Williams was proper, and the testimony of Mary Mattis and the certificates were admissible. It is always proper for a party against whom a witness has given damaging testimony to show out of the mouth of the witness himself if possible, or by other sources if necessary, that the witness has an unusual interest in theoutcome of the an unusual interest in the outcome of the to the interest and credibility of Willie Williams and was not rendered improper because an answer required disclosure of an unconventional relationship. The state of mind of a witness as to bias, prejudice, interest, friendship or hostility toward a party are all proper subjects of inquiry in the trial of an action. People v. Wayne, 41 Cal.2d 814, 830–831, 264 P.2d 547; People v. Buzzell, 15 Cal.2d 654, 660, 104 P.2d 503; People v. Gould, 111 Cal.App.2d 1, 6, 243 P.2d 809; People v. Payton, 36 Cal.App.2d 41, 54–55, 96 P.2d 991; People v. Sacramento Butchers' Ass'n, 12 Cal.App. 471, 494, 107 P. 712. The general rule cited by defendant that the prosecution may not introduce evidence designed merely to degrade and prejudice the defendant before the jury is not applicable. The admission of such evidence is error only where it bears no materiality to the issues involved in the action. People v. Payton, supra, 36 Cal.App.2d 41, 55, 96 P.2d 991.

On redirect examination of Willie Williams, this occurred:

‘By Mr. Wright [attorney for defendant]:

‘Q. Mrs. Williams, as the time that you gave that information with reference to those two certificates, you knew that the information was false, did you not? You knew that?

‘Mr. Carr [district attorney]: Pardon me just a moment. This witness has not answered the question yet, your Honor.

‘The Witness: Yes.

‘Q. By Mr. Wright: You knew that neither of these children were fathered by Mr. Sweeney, is that correct? A. Yes.

‘Mr. Wright: No further questions.

‘Mr. Carr: I would like the record to show that between the asking of the question that, ‘You knew this was false,’ and the ‘Yes' answer, that a period of time did pass, the jury being the judges as to the period of time.

‘Mr. Wright: I——

‘The Witness: The answer is ‘Yes.’

‘Mr. Wright: I would also like the record to show that she hesitated on the questions before, your Honor, with reference to Mr. Carr and myself.

‘The Court: Well, so what?

‘Mr. Wright: Well, so what, that is it.

‘The Court: Mr. Carr asked in this instance for the record to show it and the record will so show, she hesitated what I consider an unreasonable length of time.’ Defendant asserts the court was guilty of misconduct. There was none. It was perfectly proper for the court to have the record show the witness had hesitated. He did not tell the jury anything they could not observe themselves. See People v. Friend, 50 Cal.2d 570, 574–579, 327 P.2d 97.

On cross-examination defendant was asked and answered over objection questions indicating he had represented persons charged with narcotic violations. Apparently the questions were asked in an effort to ascertain the person in defendant's company at a time when he said ‘Hello’ to a secret narcotics agent of he sheriff's office. They arose out of defendant's claim that he was prosecuted because he had ‘burned’ one of the sheriff's secret narcotic agents. Defendant contends the district attorney was guilty of misconduct in asking the questions. There was none. On direct examination defendant had testified to his version of the incident which clearly indicated he represented persons charged with narcotic violations. Of course there was nothing to his discredit in doing so. The questions were within the scope of the direct examination. If a defendant in a criminal action offers himself as a witness, he may be cross-examined as to all matters about which he was examined in chief. Pen.Code, § 1323.

Defendant contends the district attorney was guilty of prejudicial misconduct on two occasions. In his opening statement ot the jury counsel for defendant stated he expected to show bias and prejudice against defendant, as evidenced by a statement of a deputy sheriff to him that he should never have ‘burned’ their agent; that several months before defendant's arrest he was talking to one of his clients when a young colored man passed by; that defendant said to his client, ‘That man is a secret service narcotic agent for the Sheriff's Department,’ and that defendant had exercised bad judgment. At this point the district attorney rudely interrupted and said, ‘Pardon me, Mr. Wright, are you referring to the client of Mr. Sweeney who was a notorious narcotic peddler in town?’ Counsel for defendant said, ‘No, I don't——’ and cited the remarks as misconduct. The court stated: ‘Proceed. The jury knows that they are going to determine this case from the evidence produced from the witness stand.’ The question of the district attorney was entirely out of order and highly improper. Its only purpose could have been to inflame the jury against defendant. However, there was no request that the jury be instructed to disregard the question. Both the district attorney and counsel for defendant, in their opening statements, had told the jury the statements were not to be considered as evidence. Earlier, during the opening statement of the district attorney, the court instructed the jury they were going to decide the cause from the testimony produced from the witness stand and not from the opening statements of counsel, and prior to the argument the court made the same statement to the jury. Further, the court instructed the jury they were to be governed solely by the evidence and the law; that the law forbade them to be governed by conjecture, passion, or prejudice; that they were to determine the facts from the evidence produced in court; that as to any statement made by counsel concerning the facts, they were not to regard such a statement as evidence unless stipulated to; and that they were the exclusive judges of the facts. We do not condone the conduct of the district attorney—on the contrary, we condemn it—but we must presume the jury heeded the statements and instructions of the court and determined the cause on the evidence ‘produced from the witness stand.’ People v. Sutic, 41 Cal.2d 483, 494, 261 P.2d 241.

Finally, defendant asserts the cause was not tried in conformity with due process. The point has no merit. ‘As applied to a criminal trial, denial of due process if the failure to observe that fundamental fairness essential to the very concept of justice. In order to declare a denial of it we must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevent a fair trial.’ Lisenba v. People of State of California, 314 U.S. 219, 236, 62 S.Ct. 280, 290, 86 L.Ed. 166, 180. Defendant was accorded a fair trial. None of the matters complained of were such as to necessarily prevent him from having a fair trial.

Other matters urged are inconsequential and do not call for comment.

No judgment shall be set aside unless ‘after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.’ ‘[A] ‘miscarriage of justice’ should be declared only when the court, ‘after an examination of the entire cause, including the evidence,’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' People v. Watson, 46 Cal.2d 818, 834, 836, 299 P.2d 243, 253. Applying this test, we are of the opinion that it is not reasonably probable that a result more favorable to defendant would have been reached in the absence of the errors we have noted.

As stated earlier, defendant appealed from the judgment and sentence. The judgment in a criminal action is the sentence. Affirmance of the judgment carries with it affirmance of the sentence. People v. Tokich, 128 Cal.App.2d 515, 519, 275 P.2d 816; People v. Perkins, 147 Cal.App.2d 793, 797–798, 305 P.2d 932; People v. Carlson, 177 Cal.App.2d 201, 2 Cal.Rptr. 117.

The judgment and order denying a new trial are affirmed.


1.  ‘Paul W. Sweeney, being first duly sworn deposes and says: That he is a party to the within action. That Bayard Rhone the judge before whom the trial of the aforesaid action is pending, is prejudice[d] against the party or the interest of the party so that affiant cannot or believes that he cannot have a fair and impartial trial before such judge.’

VALLEÉ, Justice.

SHINN, P. J., and FORD, J., concur.