PEOPLE v. BURTON

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District Court of Appeal, Second District, Division 1, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Joe Orville BURTON, Defendant and Appellant.*

Cr. 6774.

Decided: June 24, 1960

Gladys Towles Root, E. V. McPherson and Robert Barnett, Los Angeles, for appellant. Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Philip C. Griffin, Deputy Atty. Gen., for respondent.

This is an appeal from a judgment of conviction on two counts of violation of Section 288, Penal Code and from the order denying the motion for a new trial.

In an information filed in Ventura County the defendant was charged in Count I with a violation of Section 288, Penal Code in that he committed a lewd or lascivious act upon the body of a named seven year old girl on August 15, 1958, with the intent then and there of arousing, appealing to or gratifying the lust or passions or sexual desires of said child or himself; Count II charges a violation of the same section of the same code upon the same child by another similar offense about an hour later the defendant was a sexual psychopath

In a trial before a jury defendant was found guilty as to both counts as charged in the information. A motion for a new trial was denied. The judge appointed two psychiatrists to make an examination and report as to the sexual psychopathy of the defendant. Both doctors so appointed found the defendant to be sexual psychopath. The court thereupon determined that the defendant was a sexual pasychopath within the meaning of the law and directed that he be placed in a state hospital for observation and diagnosis and further directed that the superintendent of the state hospital forward to the court his diagnosis and recommendations concerning the defendant.

The judge received a report within due time from the superintendent of the state hospital which report was to the effect that the defendant was a sexual psychopath but would not benefit by care or treatment in a state hospital and ‘is a menace to the health and safety of others.’ The defendant was ordered back to court for a hearing upon the request of the defendant. Two other psychiatrists were appointed by the judge to examine the defendant and they too were directed to report to the court with reference to whether the defendant was a sexual psychopath. At the hearing each of the appointed doctors testified that the defendant was a sexual psychopath and that he would not benefit from further treatment in a state hospital and thereupon the court found accordingly. The defendant renewed his application for probation and at a hearing thereon probation was denied. The defendant was then sentenced to the state prison. The appeal is from the judgment and the order denying the motion for a new trial.

A reśume ́of the facts is as follows: The defendant is the stepfather of the seven year old female child involved in this case and said child will hereafter be referred to as the victim. On the evening of August 15, 1958 the defendant, the victim, another stepdaughter, and a boy aged five years named Gary Thompson, who was staying for the night, were at the house of defendant located on a ranch where he was employed. While the boy visitor and the second stepdaughter were outside the house the defendant made the victim masturbate him. Thereafter the defendant called to the second stepdaughter and the young boy outside of the house to come in and directed them to go to bed. Sometime approximately one hour afterward, the defendant again made the victim masturbate him. Thereafter the victim went to bed by herself.

Defendant's wife returned home sometime after midnight and when she entered the house she observed that the young boy visitor who customarily slept with the victim when he visited the home was in bed with the other child. The wife engaged in an argument with the defendant with reference to the children and defendant struck her with his elbow. The wife of defendant (the mother of the two girls) then went to the bedroom and inquired of the victim what had happened. The victim described what had occurred. The recitals by the victim to her mother were heard by Marie Brownen, a disinterested witness. Jack, also a disinterested witness, stated that he heard the victim on the night in question make separate complaints to him and to Marie Brownen to the effect that she had been sexually molested. The wife of defendant then returned to the defendant and in effect accused him of the offense charged and stated that he had been ‘doing it all the time.’ The defendant said, ‘Shut your * * * mouth or I'll break your neck.’ whereupon she stated, ‘I'll have you threw in jail * * * I'll call an officer.’ The defendant replied, ‘Yes, and I'll break your * * * neck * * * Regardless * * * it couldn't be no worse than you going to the bar and let some men feel * * *’

There was evidence to the effect that on three previous occasions the victim was made to masturbate the defendant, and that on at least two of such occasions the acts took place in the presence of another person.

The defendant's defense as presented to the jury was in brief as follows: That on August 15, 1958 he returned home from work about 4:20 p. m. and changed clothes; that Mrs. Brownen and her son arrived from Earlimont about 6:00 p. m. Mrs. Brownen did not testify in favor of the defendant. A Mr. Stewart, who was the stepfather of the defendant, called at the house of defendant. He testified as to his presence at the house and what he supposedly observed. There was impeaching testimony introduced as to Mr. Stewart and the jury might well have disbelieved him. Defendant and his wife went to a market in Santa Paula and on the way back drove up into the hills where they had an act of sexual intercourse. They returned home and about 9:00 p. m. everyone excepting the defendant and the children left the house. The defendant put the children to bed and shortly thereafter Mr. Stewart came to the house. Defendant and Stewart watched television for a time and then defendant went to bed. About 10:30 p. m. or 11:00 p. m. a Mr. Hellen and his wife stopped at the house and defendant talked to them for 40 minutes or so. The defendant then went back to bed. Stewart who was still at the house was reading. About 12:30 a. m., a Mr. Morse came to the house and talked with Mr. Stewart for approximately 5 minutes and then left. Stewart shortly thereafter left for Bakersfield. Defendant stated that he did not molest the victim at the time in question nor had he ever done such a thing. He further stated that about 1:30 a. m. his wife returned home and they had an argument and that during the argument his wife, after having talked with the victim, accused him of having molested the child and that he denied it. The wife testified that the victim had never complained of any other molestations nor had she ever been present when defendant in effect had molested the child. The wife also testified that the victim had on occasions gotten into bed with the defendant and her and that it could have been after she and defendant had had sexual intercourse.

The appellant makes several contentions, as follows: (1) that the seven year old victim was incompetent to testify; (2) that the judge, after the jury had deliberated 5 hours, improperly influenced them to reach a verdict; (3) that the judge unduly restricted the right of cross-examination; (4) that evidence of complaint was improperly received into evidence; (5) that the judge erred in permitting evidence of other crimes and thereafter restricted cross-examination; (6) that the judge failed to insure compliance with the rule that the jury were not to discuss the case; (7) that prejudicial hearsay testimony was admitted into evidence; and (8) that the district attorney was guilty of misconduct.

 Considering the first contention of defendant to the effect that the victim was not a competent witness. The law requires that a child under ten years shall be capable of receiving ‘just impressions' at the time the facts testified to occurred and that the child be capable of ‘relating them truly’ at the time of trial. Section them truly' of Civil Procedure. The child must also have some understanding of the nature and obligation of an oath. People v. Watrous, 7 Cal.App.2d 7, 45 P.2d 380.

The trial judge saw the child in court while she was testifying and had the opportunity to determine whether she appeared competent to testify. In the trial judge's opinion the child was competent to testify. Necessarily, under the circumstances, a trial judge has a wide discretion in such a situation and in the absence of any showing of abuse of that discretion the determination of the trial judge will not be disturbed on appeal. People v. Ash, 70 Cal.App.2d 583, 585, 161 P.2d 415; People v. Norred, 110 Cal.App.2d 492, 495, 243 P.2d 126; People v. Lamb, 121 Cal.App.2d 838, 844, 264 P.2d 126.

This Court is not limited to the voir dire examination in determining this phase of the case as it may review all of the testimony of the child in ascertaining whether there was an abuse of such discretion. People v. Lamb, supra. The writer has read the entire record and there was no abuse of discretion by the trial judge. A reading of the testimony demonstrates that the witness was intelligent enough to receive impressions and competent enough to relate such impressions. Under the circumstances this Court is not concerned with any lack of completeness in the voir dire examination of the child. People v. Allen, 131 Cal.App.2d 72, 74, 279 P.2d 996; People v. Ernst, 121 Cal.App.2d 287, 291, 263 P.2d 114. The witness in this case well understood that some evil would follow if she did not tell the truth. No religious belief is required nor need the child have full knowledge of the nature of an oath. People v. Lamb, supra.

The appellant asserts that the witness must have been coached by someone. However, even assuming such to be the case (and there is no evidence of such in this case), coaching in and of itself does not necessarily make the witness incompetent to testify. In my opinion the testimony of the victim was worthy of belief and any minor inconsistencies were for the jury to pass upon.

Furthermore, there was no objection by the appellant at the time of the trial as to the competency of the witness. He is now precluded from complaining for the first time that the witness was incompetent to testify. People v. Carpenter, 136 Cal.App.2d 726, 727, 289 P.2d 251; People v. Lamb, supra, 121 Cal.App.2d 838, 847, 264 P.2d 126; People v. Aleshire, 90 Cal.App.2d 506, 509, 203 P.2d 569.

Next considering the second of appellant's contentions; namely, that the judge erred in his statements to the jury. The record shows that the case started to trial on Monday, December 1, 1958, at about 10:00 a. m. on which date a jury was selected, an opening statement was made by the district attorney was taken on was taken. Evidence was taken on Tuesday, December 2 and Wednesday, December 3. The concluding argument of the prosecutor was started at 10:00 a. m. on Thursday, December 4. The jury was then instructed, sworn, and put into the hands of the bailiff at 11:50 a. m. on December 4. Experience dictates and the probabilities are great that within a short period of time the jury was taken out to lunch. At about 3:28 p. m. the jury returned to the court room and the judge inquired, ‘Ladies and gentlemen of the jury, have you arrived at a verdict?’ To which the foreman responded, ‘No, Sir, we have not,’ and then the foreman requested the reading of certain testimony which reading was concluded at about 4:40 p. m. The judge then said, ‘Have you got everything you want?’ and the foreman responded, ‘Yes, Sir.’ The jury then retired to deliberate further in the matter.

About 5:25 p. m. the judge ordered the jury to be returned to the court room. The following occurred.

‘The Court: The defendant is in court with his counsel. Ladies and gentlemen of the jury, I am going to ask the foreman a question and I don't want anybody to say a single word except the foreman and I don't want (him) to say anything except to answer my question. What I want to know is how this jury stands. Have you arrived at a verdict?

‘The Foreman: No, sir, we have not.

‘The Court: I want to know how you stand just numerically, nothing else. Now listen, 11 to 1, 2 to 10, 8 to 4, 7 to 5, 6 to 6, or whatever it is not which way, not which one you are for or against, but just how you stand numerically.

‘The Foreman: The first vote was 8 to 4.

‘The Court: What?

‘The Foreman: The first count was 8 to 4.

‘The Court: You are 8 to 4 now?

‘The Foreman: Yes, sir.

‘The Court: Well, you think there is a chance of your arriving at a verdict?

‘The Foreman: I think if we had a little more time—there are a few small items that we want to discuss—we can come to a decision.

‘The Court: All right. It seems to me you ought to able to arrive at a verdict. You may retire again.’

At about 5:27 p. m. the jury again retired to deliberate. At about 6:15 p. m. the jury was again ordered returned to the court room and the following occurred:

‘The Court: Ladies and gentlemen of the jury, have you arrived at a verdict?

‘The Foreman: No, sir, we have not We are a hung jury.

‘The Court: How do you stand numerically now?

‘The Foreman: Well, we had—there were two counts, sir.

‘The Court: What?

‘The Foreman: There were two counts originally to vote on once and then we voted on both counts simultaneously.

‘The Court: Well, how do you stand on Count I?

‘The Foreman: Count I was 6 to 6.

‘The Court: How do you stand on Count II?

‘The Foreman: Six to three—I mean 9 to 3.

‘The Court: What? Nine to 3?

‘The Foreman: Yes.

‘The Court: Do you still think there is a chance of arriving at a verdict?

‘The Foreman: No, sir, I do not.

‘The Court: How many members of this jury think that there is a chance of arriving at a verdict? Hold up your hands.

‘Well, what about it?

‘The Foreman: We did take a last ballot covering both charges and that also came out 9 to 3.

‘The Court: What?

‘The Foreman: We also took a last ballot before we came in here, when we determined we were hung, on both counts, and it came out 9 to 3.

‘The Court: Nine to 3 on both counts?

‘The Foreman: Yes.

‘The Court: Well, how long have we been trying this case, four days?

‘Mr. Deem: (Deputy District Attorney) Yes, your Honor.

‘Mr. Waite: (One of counsel for the defendant) If the Court please, if the jury feels they are hung and they can't arrive at a verdict, I don't think it is necessary to punish them.

‘Mr. Deem: Well, if your Honor please, I am not in favor of punishing the jury. However, I think it would be of the public interest, if there is any chance that they can arrive at a verdict, that we have some additional deliberation.

‘The Court: The trial has lasted four days. It's not very fair to the County of Ventura for the Court to discharge them without very careful consideration.

‘Mr. Waite: Well, if they say that they are hopelessly hung. That is what I understood.

‘The Court: I have known them to say they were hung many a time and still bring in a verdict one way or another.

‘Mr. Bailiff, take this jury to dinner. When you come back from dinner, you can deliberate further.’

The bailiff presumably followed instructions of the judge and they went to dinner.

At 9:30 p. m. the jury returned to court and the following occurred:

‘The Court: Ladies and gentlemen of the jury, have you arrived at a verdict?

‘The Foreman: Yes, sir, we have.

‘The Court: Hand it to the Bailiff.

‘The Clerk: Ladies and gentlemen of the jury, is this your verdict?

‘The Foreman: It is.

‘The Court: Do you want to poll the jury?

‘Mr. Waite: We would, yes.

‘The Court: Poll the jury, please. (Jury polled.)

‘The Court: It is unanimous as to both Counts.

‘Well, ladies and gentlemen of the jury, you had a rather difficult case, apparently. It took you a long time to arrive at a verdict. I had an idea you would arrive at a verdict very promptly, but the fact that you took so long shows that you were a very careful and conscientious jury and I am satisfied that you did the best you could to decide the case according to the law and the evidence, and you decided the case just the way—I couldn't see how you could decide it any other way, possibly, except the way you did decide it. Only why it took so long will always be a mystery to me under the evidence that was adduced in this case.

‘Nevertheless, I think you are to be commended for being careful and I am satisfied that you were an unusually good and conscientious jury.

‘The People of the State of California are very grateful to you for your very valuable services, as are the people of Ventura County and this Court. Thank you very much, indeed, ladies and gentlemen, for your careful and conscientious attention to this Court. Your checks for mileage and per diem will be mailed to you. You are now discharged.’

Appellant asserts that the judge entertained a strong conviction of the defendant's guilt and indicated such conviction in his statements to the jury.

The judge's feelings on the case are immaterial as long as he does not convey them to the jury. In this case the record discloses that not once during the trial did the judge give the slightest idea or indication to the jury as to how he felt about the matter or indicate his view as to the innocence or guilt of the defendant. It is true that after the verdicts had been returned to court and during the course of the judge's discharging the jury, he made the statements as heretofore set forth. However, by no stretch of the imagination could that comment have had anything to do with the jury's verdict.

It was not wrong for the judge to attempt to determine how the jury stood numerically. People v. VonBadenthal, 8 Cal.App.2d 404, 48 P.2d 82. In People v. Wooley, 15 Cal.App.2d 669, 672, 59 P.2d 1065, 1067 it is said:

‘Such information is a proper means of assisting the court in determining whether there is a reasonable probability of the jury agreeing upon a verdict, and the advisability of keeping them out for further deliberation.’ Furthermore, the record in this case shows that no objection was made to any remark of the judge at the time it was made, no request for an admonition to the jury was requested and it should now be too late to raise any question thereof on appeal. See, People v. Moreno, 111 Cal.App. 52, 295 P. 50; People v. Weeks, 104 Cal.App. 708, 286 P. 514.

No intimation was given by the judge that the jury would be kept out until they did arrive at a verdict and certainly there was nothing approaching coercion upon the part of the judge. Even so, in one case, wherein the judge said in effect that he would keep the jury out overnight, it was held that such a statement did not amount to coercion. People v. Roach, 139 Cal.App. 384, 386, 33 P.2d 895.

A statement by a judge to a jury such as ‘Suppose you take another vote and find out if you are still the same’ has been held to be unobjectionable. People v. Wooley, supra, 15 Cal.App.2d 669, 674, 59 P.2d 1065, 1067. See also, People v. Finkelstin, 98 Cal.App.2d 545, 561, 220 P.2d 934.

The judge in this case had no knowledge which would indicate or show how the jury stood as to the conviction or acquittal of the defendant. To say that there was anything other than that which was entirely proper in the remarks of the judge is to read something into the remarks which is not there, is unfair to the trial judge, and could result in a miscarriage of justice.

The judge in the next remark of which appellant complains said, ‘I have known them to say they were hung many a time and still bring in a verdict one way or another.’ The appellant in his brief does not make any showing as to how such a remark influenced the jury in arriving at their verdict and for the very good reason that it cannot be shown. As heretofore set forth, the record shows that one of the appellant's attorneys was attempting to get the jury discharged and the judge simply stated the facts of life to him as he, the judge, had known them. In People v. Lammers, 108 Cal.App.2d 279, 280, 238 P.2d 667, 668, the jury was divided nine to three and the foreman said, ‘We really tried very hard, Your Honor.’ The judge replied, ‘I might tell you that we had a jury here once that stood nine to three and they were out five days. You folks go back and try it * * * again * * *.’ The judgment in that case was affirmed. The judge in the present case in effect simply said that previous juries had apparently been hung and then after further deliberation had arrived at a verdict ‘one way or another.’ What could be more correct than that statement? As long as the judge believes that there is a reasonable possibility of a jury's reaching a verdict it is proper to order the jury back for further deliberation provided no coercion is applied. People v. Goldberg, 110 Cal.App.2d 17, 23, 242 P.2d 116; People v. Wooley, supra, 15 Cal.App.2d 669, 674, 59 P.2d 1065. That is what was done in this case. See, People v. Washington, 145 Cal.App.2d 341, 343, 302 P.2d 352.

The third of appellant's contentions is that the judge unduly restricted the right of the defendant to cross-examine on three occasions. In the first instance the prosecution had called Mrs. Burton as its witness and had asked her in effect what she found and what was said and done after she arrived home about 1:15 or 1:30 a. m. and nothing more. On cross-examination counsel for the defendant asked some questions of the witness as to where she had been during the evening and how many drinks she had consumed. There was a question about some of her activities during the afternoon and early evening of Friday. Then came a question on cross-examination: ‘I see. Now, Mrs. Burton, I believe you testified that some of the beer that you obtained you and your husband had gone to town and gotten it that evening?’ She answered ‘Yes.’ The question followed: ‘About what time was it that you went to town?’ Admittedly the question had to do with a trip which the defendant stated took place in the afternoon or early evening of Friday. Counsel for defendant argued that they had a right to test the recollection of the witness and also pointed out that the prosecution would be bound by whatever the witness said. The prosecution represented to the court that the defendant was attempting to get into evidence matters about which the witness could be impeached and that it was beyond the scope of the direct examination. The judge sustained the objection and counsel for the defendant stated, ‘That's all’ without further cross-examination or any other effort to test the recollection of the witness. The next day after five other witnesses had testified and the prosecution had indicated that it was closing its case, defendant's counsel sought to recall Mrs. Burton for further cross-examination. The appellant asserts that he was prejudicially affected because his only alternative was to call Mrs. Burton as his own witness and she was then impeached.

The district attorney objected to the calling of the witness for further cross-examination upon the theory that Mrs. Burton was an unfriendly witness and that it was an attempt on defendant's part to bind the prosecution to unfavorable testimony from a reluctant prosecution witness and that the defendant should have completed the cross-examination of the witness at the proper time. Furthermore, it was pointed out that the witness was available and could testify as a witness for the defendant. The court denied the motion to recall Mrs. Burton for further cross-examination. Counsel for defendant then indicated that the judge had unduly restricted the cross-examination whereupon the judge said, ‘You had an opportunity to go as far as you wanted to in cross-examination within legal limits.’ The prosecution then rested its case.

It is stated in Witkin on California Evidence at page 674 in effect that California does not have the ‘wide open’ rule which allows cross-examination on any matter relevant to the issue of the case, regardless of whether it was raised on the direct examination. It is said therein, ‘California, however, follows the federal and majority State rule restricting cross-examination to the scope of the direct examination.’ Thus, Code of Civil Procedure Section 2045 refers to cross-examination of the witness ‘Upon the same matter’ as the direct examination. Section 2048 of the Code of Civil Procedure provides:

‘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, but if he examine him as to other matters, such examination is to be subject to the same rules as a direct examination.’

From the record in this case it is apparent that defendant wanted to get before the jury, through his wife, certain matters which related solely to his affirmative case and which matters he hoped to present in such a way as to bind the prosecution to such testimony.

The scope of cross-examination is largely left to the discretion of the trial judge and his rulings should not be disturbed on appeal in the absence of a clear abuse of discretion. People v. Barragan, 163 Cal.App.2d 625, 629, 329 P.2d 733.

It was said in People v. LaMacchia, 41 Cal.2d 738, 743, 264 P.2d 15, 20 as follows:

“* * * When an appellate court is called upon to decide whether such discretion has been abused, the inquiry is whether a sufficiently wide range has been allowed to test such credibility and weight rather than whether some particular question should have been allowed.”

In this case the record shows in fact that when Mrs. Burton was called by the defendant as his witness she testified that she had taken a trip in the afternoon or early evening with her husband and that on such occasion they had engaged in sexual intercourse near the roadside in the nearby hills. The prosecution thereafter introduced testimony which impeached her by showing that she had previously denied having had intercourse with her husband during the time in question; and further the People produced evidence to the effect that Mrs. Burton did not leave the house to go to the store as she so testified.

In the light of the entire record it is clear what the defendant was attempting to do. There was a single ruling as to one improper question and there was no attempt to restrict the defendant in any further legitimate cross-examination. People v. Bartol, 24 Cal.App. 659, 662, 142 P. 510.

In People v. Padilla, 143 Cal. 158, 162, 76 P. 889, 890, it is stated after quoting Section 2048 of the Code of Civil Procedure as follows:

‘This rule, of course, admits the putting of any questions properly framed for the purpose of testing the memory of the witness, his means of knowledge, his accuracy, his bias or his credibility; but it would have no meaning, and would afford no protection if a hostile witness called to a particular matter could, in order to test his memory, etc., be fully examined by the adverse party upon other and distinct features of the case, under the claim and under the ruling that he was being cross-examined upon matters called out in chief.’

The judge in this case had knowledge of the unfriendly character of the witness from the previous trial of the case. See, People v. Miller, 33 Cal. 99, 101; People v. Cyty, 11 Cal.App. 702, 708–709, 106 P. 257. Whether a witness who has testified and then cross-examined and excused by all of the parties may be recalled some day or so later on further cross-examination is within the sound discretion of the trial judge. People v. Keith, 50 Cal. 137, 140; People v. Moan, 65 Cal. 532, 536, 4 P. 545; People v. Flynn, 166 Cal.App.2d 501, 511, 333 P.2d 37; People v. Miller, 56 Cal.App. 472, 476–477, 206 P. 89. See also, Section 2050, Code of Civil Procedure. No sufficient reason was given by counsel for the defendant as to why they had not completed the examination of Mrs. Burton at the usual and ordinary time.

Appellant now complains that had he been permitted to cross-examine his wife and had she testified under such examination to the trip in the afternoon and to the sexual intercourse between them near the roadside that the prosecution would not have been able to introduce the impeaching evidence. In other words, the defendant now proposes that if he had prevailed in his request that the jury would not have had all of the evidence available and that he was damaged by the receipt of such evidence which tended to establish the truth or falsity of his story.

Appellant asserts that on another occasion he was restriected in his cross-examination. On cross-examination of the victim the following appears in the transcript:

‘Mr. Waite: Q. Now, Elizabeth (the victim), has anybody else done this to you?

‘Mr. Deem: If your Honor please, I object to the question. It goes beyond the scope of the direct examination. There is no purpose in it.

‘The Court: The objection is sustained. It is incompetent, irrelevant and immaterial, besides.’

The question calls for other acts by other persons. The character of the victim was not in question. No offer of proof was made to show what was expected to be proved by the question. It is set forth in People v. Pilgrim, 160 Cal.App.2d 528, 530, 325 P.2d 143, 144:

‘It is next contended that defendant was unduly limited in his cross-examination of the prosecuting witness. On direct examination the witness had testified to certain acts committed on her person by the defendant. The apparent purpose of the questions asked on cross-examination was to show association by her with other persons and the possibility of her engaging in like immoral acts with them. While such testimony might well have shown such acts by others, it in no way would have refuted her testimony concerning the acts of the defendant. Stated otherwise, the fact that some other person might have done exactly what defendant did, would in no way have tended to prove that defendant did not so act.’ A party cannot, under the guise of cross-examination, put into evidence matters which are not competent. People v. Arends, 155 Cal.App.2d 496, 509, 318 P.2d 532. If the question was in the nature of an effort to find out where the victim learned about the language which she had used, defense counsel could have made an offer of proof accordingly but instead they abandoned further questions of the victim along such lines.

Appellant's next contention is that there was error in the admission of evidence with reference to complaints of the victim. Two separate instances are complained of by appellant. The record discloses that upon direct examination of the victim the following occurred:

‘Q. Now, on this night just a few days before you came to Juvenile Hall, did you see your mommy when she came home the next morning? A. Yes.

‘Q. Did you tell your mommy what had happened? A. Yes.

‘Q. What did you tell her? A. I told her that he make me play with his peter.’

No objection was made to any of the questions nor was there any motion to strike any or all of the answers. As stated in the case relied upon by the appellant ‘A portion of the answer is competent. * * * The balance of this answer regarding certain details of the affair may be conceded to be incompetent. The incompetent portion of this answer was waived by failure to object to the question or move to strike it from the record.’

Mrs. Burton, as a witness for the prosecution testified on direct examination as follows:

‘Q. Then what did you do? A. Then I went back and I laid down beside Elizabeth and I told her, I said, ‘Elizabeth’, I said, ‘You mustn't story to me.’ I said, ‘What's the matter with you? Why can't you go to sleep?’ She said—I said, ‘You know you go to Sunday School every Sunday and Jesus in Heaven, he is supposed to protect you’, and I said ‘You better tell the truth’, and she said, ‘Well, daddy made me play with his peter.’ And I jumped up and run in the bedroom and jumped on to Mr. Burton. And I had got in bed before that and he had hit me in the face with his elbow.'

No objection was made to the question nor was there any motion to strike the answer.

The second occasion concerned an offense which was not charged in the information. Upon direct examination of Mrs. Burton when she was called as a witness in behalf of the defendant the record discloses the following:

‘Q. Mrs. Burton, when you were on the stand yesterday I forgot to ask you this: Had the child ever made any complaints to you prior to that night? A. No, never, at no time.

‘Q. Had you ever seen your husband mistreat the child in any way?

‘* * * Now, by the way, when you lived up near Sis Blackstone's, did you ever call the police to come to the house because Joe had been molesting the little girl? A. Definitely not. * * *

‘Q. I see. It had nothing to do with this little girl? A. Nothing whatsoever.’

On cross-examination the following occurred:

‘Q. Isn't it true that at that time she told you that he had made her do it when you lived by Sis Blackstone's? A. She had never told me but that one time, about that one time only.

‘Q. Now, isn't it true that while you were living up by Miss Katherine Blackstone's that Elizabeth Ann complained to you that Joe Burton had molested her? A. She did not at no time. Elizabeth Ann, that night is the first time that Elizabeth ever said anything to me about anybody molesting her.’

Katherine Blackstone was called by the prosecution in rebuttal.

In answer to a question whether she had talked to Mrs. Burton about two years before and whether Mrs. Burton had said that the child had complained to her that Mr. Burton had molested the child, Miss Blackstone answered by saying, ‘No, she didn't say he molested her. She said the child said he had put his hand on her * * * on his body.’

No objection was made to the questions and no motion to strike was made at or about the time the questions were answered. Later on after several other witnesses had testified counsel for the defendant did move to strike the testimony of Miss Blackstone upon the ground that it did not impeach Mrs. Burton. However, no mention was made that any answer constituted an inadmissible complaint of the victim.

There might have been some validity to an objection if one had been properly made or to a motion to strike in the various instances heretofore mentioned, but to object for the first time on appeal is untimely. It was stated in People v. Carner, 144 Cal.App.2d 687, 692, 301 P.2d 623, 626: ‘* * * Where the subject matter of the question is objectionable and a party fails to interpose objection until after it is answered, he thereby waives his right to complain of the admission of the testimony.’ And, it was said in People v. Abbott, 47 Cal.2d 362, 372, 303 P.2d 730, 737: ‘* * * The general rule is that, when it is apparent from the face of a question that the evidence sought to be elicited will necessarily be inadmissible, a motion to strike is not available unless there has been preliminary objection.’

It is further stated in People v. Glass, 127 Cal.App.2d 751, 753, 274 P.2d 430, 431:

“It is the general rule that when an unexpected answer of a witness, which could not be anticipated by objection to the question, contains inadmissible and prejudicial matter, a motion to strike it out is the proper remedy. People v. Williams, 127 Cal. 212, 59 P. 581; People v. Smith, 1907, 151 Cal. 619, 624, 91 P. 511.

“Having failed to so move, the introduction of such evidence is not grounds for appeal. People v. Ahsbahs, 1946, 77 Cal.App.2d 244, 175 P.2d 33; People v. Cole, 1903, 141 Cal. 88, 74 P. 547.

“The failure to move to strike in the lower court is deemed a waiver of the point on appeal. People v. Strider, 1929, 96 Cal.App. 632, 274 P. 601.”

Another rule often forgotten is: ‘* * * To warrant consideration by an appellate tribunal of an objection to evidence, it is necessary that the precise ground for its exclusion must have been clearly specified to the trial court. (Citations.)’ People v. Renek, 105 Cal.App.2d 277, 283, 233 P.2d 43, 47. And, as stated in People v. Rodriquez, 135 Cal.App.2d 757, 759, 288 P.2d 147, 149: ‘* * * However, failure to object to the admission of a hearsay statement, or to move to strike it upon that ground, is a waiver of such objection. People v. Millum, 42 Cal.2d 524, 528, 267 P.2d 1039; People v. Stepp, 82 Cal.App.2d 49, 51, 185 P.2d 417; People v. Peterson, 66 Cal.App.2d 420, 424, 152 P.2d 347. * * * Defendant may not now predicate prejudicial error in the admission of evidence on a ground he did not even suggest to the trial court. People v. Renek, 105 Cal.App.2d 277, 283, 233 P.2d 43; People v. Goff, 100 Cal.App.2d 166, 172, 223 P.2d 27; People v. Calliham, 81 Cal.App.2d 928, 933, 185 P.2d 342.’

In this case there was testimony to the effect that the partitions of the house did not go to the ceiling and that it was easy to hear in one part of the house everything which took place in any other part of the house. If such be the fact then the statement of the victim to her mother might well have been heard by the defendant and, according to one of Mrs. Burton's statements, he did not deny positively the course of conduct of which he was accused. See, People v. Simmons, 28 Cal.2d 699, 712–713, 172 P.2d 18.

There were no details related by the victim in this case in any event. She stated the matter as simply as the could under the circumstances. See, People v. Lopez, 33 Cal.App. 530, 534, 165 P. 722.

Furthermore in this case on the direct examination of Mrs. Burton by the defendant she was asked:

‘Q. All right. Now, how were you dressed when the little girl—you testified, I believe, yesterday afternoon that the little girl told you that Joe had made her play with his peter; is that right?’

The evidence of the guilt of the appellant is clear and convincing and if there was any error in any of the questions or answers it did not result in a miscarriage of justice. People v. Ewing, 71 Cal.App. 138, 143, 234 P. 917; People v. Huston, 21 Cal.2d 690, 694, 134 P.2d 758.

As to the questions to and answers by Miss Blackstone they were without doubt proper for impeachment purposes. The particular line of questioning was opened up by the defendant on his direct examination and the prosecution had a right to inquire. People v. White, 50 Cal.2d 428, 431, 325 P.2d 985. The fact that the testimony consisted of evidence of a complaint with reference to another crime is of no consequence. People v. Peete, 28 Cal.2d 306, 318–319, 169 P.2d 924.

The next contention of appellant is that the court committed prejudicial error in permitting evidence of an alleged prior criminal act of the defendant. The record shows that when Fayleen Hubbard was called as a witness, she gave her name and immediately thereafter the jury was excused and the point of law as to whether she could testify to certain matters was considered in the complete absence of the During the talk that followed between the judge and counsel, the district attorney represented that there were two conversations between the witness and the appellant; one at Bakersfield at a cafe early one morning and one later the same day over the telephone, that the two conversations were about 12 hours apart. The prosecutor stated to the judge that the testimony would show that in the morning conversation the witness said to the appellant, ‘How can you say you didn't do that act down there when you did?’ and he, the appellant, said, ‘I didn't say I didn't. I said you could get me out of it.’ The district attorney was of the opinion that the statement constituted in part an admission. The writer is likewise of the opinion that it was clearly an admission.

Defense counsel insisted that in the conversation at the cafe there was also some talk of an episode in 1946 when the appellant had been charged with molesting some other children and that that case had been dismissed. Further, it appeared in the discussion before the judge that the witness had made a trip to Ventura from Bakersfield upon hearing of the present charge against the defendant and that she apparently advised members of the Sheriff's office of Ventura County of an episode in 1946 in Bakersfield when the defendant, according to her story, had molested her child and others. The defense claimed that the defendant had gone to Bakersfield to get the witness, Hubbard, to execute a retraction of the charge of 1946. None of defense counsel could or did explain why any retraction of such a charge would be of any importance in this case. The comments of the judge during that conference in the absence of the jury were clearly to the effect that he was not concerned with anything that occurred in 1946.1 It has been suggested that ‘a deputy district attorney told appellant that the prosecution had evidence of another offense’ and they intended to prove it. There is nothing in the record to the effect that the appellant talked with the district attorney or any member of his staff. What was said by one of defendant's counsel was, ‘I think Mr. Deem [deputy district attorney] had told us that they had evidence of another offense and intended to prove it. And we asked him about it and he said there was nothing to it.’ The record does not disclose the dates ‘of another offense’. The evidence does, however, disclose that the defendant had committed similar offenses on at least three occasions and perhaps it was one of those occasions to which the deputy district attorney referred. It is a certainty though that the district attorney of Ventura County was not telling a former district attorney of Ventura County (one of counsel for the defendant) that he was going to prosecute the defendant in Ventura County for a 288 offense that might have taken place in Kern County some 12 years ago.

At this conference in chambers counsel for the defendant stated during the talk to the judge, ‘it is discretionary with the Court whether the Court wishes to allow it in. If the Court feels that it is so untrustworthy that it should not be, he could refuse.’

The questions put to the witness and the answers given on a direct examination in the presence of the jury are as follows:

‘Mr. Deem: Q. Your name is Fayleen Hubbard? A. That's right.

‘Q. Do you know the defendant, Joe Orville Burton? A. I do.

‘Q. How long have you known him? A. Fourteen years.

‘Q. On the morning of September 11th, 1958, did you have a conversation with Joe Orville Burton concerning the offenses with which he is here charged in this court? A. I did.

‘Q. Where did you have that conversation? At the Beacon Coffee Shop in Bakersfield.

‘Q. Who were present at the conversation? A. Well, there were some customers in there, but his conversation and mine was at the counter. As far as I know, nobody heard it.

‘Q. It was just between the two of you? A. Yes, and we had continued out to the car.

‘Q. Now, will you relate to the jury the conversation you had with the defendant so far as it concerns the charges for which he is now being tried? A. Well, he wanted—he wanted me to come down here and sign a retraction on a statement I had made.

‘Q. What did you do? What did you say? A. I told him that I'd be glad to if there was any doubt in my mind that he hadn't committed this thing, but there wasn't.

‘The Court: When you said ‘this thing’, you were referring to this offense which he is being tried for now?

‘The Witness: Yes, Sir.

‘Mr. Deem: Q. And what else did you say? A. Anyway, he asked—I told him that there wasn't any doubt in my mind. He said, ‘Well, I didn't say I didn't. I said you could help me get out of it.’

‘Q. He said, ‘I didn't say I didn't. I said you could help me get out of it’? A. That's right.

‘Q. All right, what else was said? A. I asked him if he hadn't rather get some help now while there was a chance than to wait until maybe the next one wouldn't be as lucky as this little girl he is accused of now. He asked me if I though—— (Emphasis added.)

‘Q. Did you say anything about the gas chamber? A. Yes, I told him, I said, ‘Because——’

‘Mr. Waite: Now, if the Court please, we object to the question on the grounds that it is leading and suggestive.

‘Mr. Deem: It isn't leading at all, your Honor.

‘The Court: All right, overruled. Go ahead.

‘The Witness: I told him the next little child might not be as lucky as this last one; that he was headed—I said, ‘Joe, you know where you are headed, to the gas chamber.’

‘Mr. Deem: Q. What did he answer to that? A. He didn't answer.

‘Mr. Deem: I have nothing further for this witness, your Honor.’

On cross-examination by the defendant's counsel the following occurred:

‘Mr. Waite: Q. Were you present at any time in Ventura County on the 15th day of August, 1958, or the 16th day of August, 1958? A. No, sir.

‘Mr. Deem: If your Honor please, I object to the question. It goes beyond the scope of the direct examination entirely and has nothing at all to do with the direct examination. It is entirely immaterial and irrelevant.

‘The Court: I don't see the relevancy of that.

‘Mr. Deem: That has nothing to do with the admission of the defendant which he made to her, and that is the purpose of the testimony. This question is entirely irrelevant.

‘Mr. Maxwell: I think it is relevant to show her state of mind, your Honor. We certainly have a right to do that.

‘The Court: Well, it is not a proper sphere of cross-examination.

‘Mr. Maxwell: Your Honor, you always have a right on cross-examination to go into the state of mind of the witness and also to show her recollection as a basis of the fact upon which she makes her statement.

‘The Court: I know, but you can't go into matters that are irrelevant and immaterial.

‘Had you made some statement—I don't want you to say what statement you made or anything of that kind—but had you made some statement about this particular case that he wanted you to retract?

‘The Witness: No, sir, not about this one.

‘The Court: What was it he wanted you to retract?

‘Mr. Maxwell: Just a minute, your Honor. We are going to object to that on the basis that I think the jury should be excused before any further testimony of this witness is given.

‘Mr. Deem: I will stipulate that the answer to that question would be inadmissible, your Honor.

‘The Court: Well, I think so, too, but I didn't think there would be any objection to it. I thought maybe they would welcome that. All right, the objection is sustained.’

Appellant asserts that it is not clear what was meant by the phrase ‘I didn't say I didn't.’ Of course, it is not absolutely and crystal clear to everybody just what the defendant meant by such words, but having used the words he did use and the deputy district attorney having first secured the approval of the court to introduce such testimony it was for the jury to decide whether such a reply showed a consciousness of guilt. In the writer's opinion, a reasonable conclusion that the defendant was previously convicted of a crime cannot be drawn from the testimony which was before the jury. There is nothing in the evidence to that effect.

The appellant further asserts that when Mrs. Hubbard said, ‘The next little child might not be as lucky as this last one’—that ‘the jury was told’ that appellant had been previously charged with a crime and that such crime involved a child. The jury was not told by such statement that any other crime had been committed by the appellant nor could they legitimately infer that such was the fact. But, even if the jury had been so told, under the circumstances in this case, it would not be error. Fricke in California Criminal Evidence states the rule on page 266 as follows:

‘* * * The true rule is that evidence of other acts and crimes of the defendant are inadmissible when they are not relevant to the issues of the case on trial but that, if evidence profferred is relevant and otherwise admissible, its admissibility is not affected by the fact that it tends to show the commission by the defendant of a crime or act other than that for which he is on trial. See People v. Peete, 28 Cal.2d 306 [169 P.2d 924]; People v. McMonigle, 29 Cal.2d 730 [177 P.2d 745]; People v. Lyon, 135 Cal.App.2d 558 [288 P.2d 57]; People v. Torres, 140 Cal.App.2d 751 [295 P.2d 904].

‘The test for admissibility is ‘does it tend, logically and naturally and by reasonable inference, to establish any fact material for the people, or to overcome any material matter sought to be proved by the defense? If it does so, then it is admissible whether it embraces the commission of another crime or does not, whether the other crime be similar in kind or not, whether it be part of a single design or not’ (People v. Peete, 28 Cal.2d 306, 315 [169 P.2d 924]; People v. Dabb, 32 Cal.2d 491 [197 P.2d 1]; 8people v. Sykes, 44 Cal.2d 166 [280 P.2d 769]).'

And, on page 269 as follows:

“The general tests of the admissibility of evidence in a criminal case are: 1. Is it a part of the res gestae? If not, does it tend logically, naturally and by reasonable inference, to establish any fact material for the people, or to overcome any material matter sought to be proved by the defense? If it does, then it is admissible, whether it embraces the commission of another crime or does not, whether the crime be similar in kind or not, whether it be part of a single design or not.' People v. Sanders, 114 Cal. 216 [46 P. 153]; see also People v. Tomalty, 14 Cal.App. [224] 223 [111 P. 513]; People v. Foster, 79 Cal.App. 328 [249 P. 231]; People v. Vollman [Vollmann], 73 Cal.App.2d 769 [167 P.2d 545]; People v. Peete, 28 Cal.2d 306 [169 P.2d 924].'

And, as said in People v. Oakleaf, 66 Cal.App. 314, 316, 226 P. 24:

‘* * * While it is universally recognized that a defendant in a criminal case cannot be tried for any other offense than that charged in the information, yet the rule is equally well recognized that evidence which is pertinent to, or tends to prove, the crime alleged, is admissible, even though it tends to prove the commission of other crimes. 8 Cal.Jur. 61; People v. Nakis, 184 Cal. 105, 193 P. 92. ‘Evidence of the conduct of the defendant subsequent to the commission of the alleged offense, which is admissible as tending to show consciousness of guilt, is not rendered inadmissible because it may tend to prove other crimes.’ 8 Cal.Jur. 72; People v. Mack, 14 Cal.App. 12, 110 P. 967.'

Appellant also claims that his right of cross-examination of Mrs. Hubbard was restricted. A reading of the record belies the truth of such contention.

Appellant's next contention is that the court did not insure compliance with the statutory requirement (Penal Code Section 1122) to the effect that jurors were not to discuss the case until it was submitted to them. The court said to the jury just prior to a morning adjournment:

‘The Court: Ladies and gentlemen of the jury, remember the admonition of the Court. You must not discuss this case among yourselves. I noticed some of the jury right in the jury box communicating with one another. I don't know whether you are talking about the case or not, but I assume that you are not. You must not discuss this case among yourselves or with anyone else and you must not form or express any opinion about anything connected with this trial until the case has been finally submitted to you. With that admonition you are excused until this afternoon at 2:00 o'clock.’

Nothing was stated to the judge by counsel for the defendant at the time nor did counsel seek to have an inquiry made by the court as to what was stated. No prejudice has been shown. People v. Massey, 151 Cal.App.2d 623, 649, 312 P.2d 365. There is nothing in the record to indicate what the jurymen were talking about. They may have been saying in effect that it was about time for lunch.

The appellant next asserts that it was error for the trial court to receive certain hearsay evidence. Counsel states that in the cross-examination of Mrs. Burton by the deputy district attorney much hearsay was admitted. A reading of the record shows without question that the prosecution was attempting properly to test her recollection of events and conversations which occurred during the period of time to which she testified on direct examination. People v. Watson, 46 Cal.2d 818, 826–827, 299 P.2d 243. The prosecution impeached her testimony by showing that on a previous occasion she had made statements inconsistent with her direct testimony. The same is true concerning the questions on cross-examination with reference to the previous complaints of the victim. There is no merit to this claim of the defendant.

The last contention of the appellant is that the district attorney was guilty of misconduct. In questioning Mrs. Hubbard she was asked to relate the conversation between herself and the defendant. (See Footnote No. 1, supra.) It is apparent that the prosecutor was simply asking the witness for the entire conversation. The statement of Mrs. Hubbard to the effect that the defendant was headed for the gas chamber was a part of the accusation that the defendant had committed the offense against the victim. It was the very type of statement which ordinarily would provoke a denial from an innocent person but the defendant did not so react. His silence and equivocation tended to prove that he acquiesced in the truth of the accusation.

Appellant also complains of some of the questions of the prosecutor to Mrs. Burton with reference to certain acts of physical molestation of Mrs. Burton by the defendant after the offense in question was committed. The questions were put to Mrs. Burton in an attempt to show that she was afraid of the defendant and the reasons therefor. The rebuttal testimony produced by the prosecutor substantiated his claim as did the direct testimony of Mrs. Burton, when she served as a witness for the prosecution. Furthermore, the evidence could well show a consciousness of guilt in that defendant was attempting to intimidate his wife.

A wide latitude is allowed in cross-examination to show the state of mind of the witness and possible bias. People v. Winston, 46 Cal.2d 151, 157, 293 P.2d 40. No objection to the evidence was made by the defendant at the time of trial nor was any assignment of misconduct mentioned.

The evidence of guilt in this case is overwhelming. There was no prejudicial error.

The order denying a motion for a new trial and the judgment are affirmed.

I dissent.

There was a close question as to whether the acts were committed. Defendant denied that he committed the acts. His testimony was corroborated by his stepfather who testified to the effect that, during the specified period of time when the acts allegedly occurred, he was in the room, except for approximately five minutes, and the girl was not there. The jury in the former trial could not agree upon a verdict. The jury in the present trial announced that it could not agree upon a verdict. (It did not return verdicts until after the judge erred in making certain comments to the jury, as hereinafter referred to.) The alleged complaint of the girl was made to the wife of defendant about 2 a. m., after the wife had returned home from an evening of attending bars, drinking and dancing, and after she had engaged defendant in an argument. (A detailed statement of the testimony, establishing there was a close question, has been prepared but it is omitted for the reason it would unduly extend this opinion. In lieu thereof I have summarized, as above shown, portions thereof sufficient to establish there was a close question.)

In my opinion, in view of the close question of fact, the comments and errors of the trial judge and the conduct of the deputy district attorney (hereinafter discussed), the defendant was not accorded a fair trial.

Appellant asserts, among other things that the trial court erred in receiving testimony which implied that defendant had committed other crimes; and in making certain comments to the jury when the jury reported that a verdict could not be agreed upon.

In view of the close question as to whether the alleged acts were committed, it was especially important that there be no improper implication that defendant had committed other crimes; and in making however, several such implications as a result of questions asked by the deputy district attorney and the judge; and as a result of irrelevant evidence presented by the deputy.

A statement showing some of the background for such questions and evidence should be made. This statement is based upon statements which were made out of the presence of the jury—in a conference in the judge's chambers. Arguments of the attorneys at that conference indicate that in 1946 (twelve years before the alleged offenses herein) a Mrs. Hubbard made a statement to the district attorney at Bakersfield that appellant had molested her daughter, and that the district attorney had dismissed the accusation ‘as being nothing to it.’ Soon after the preliminary examination in the present case, a deputy district attorney told appellant that the prosecution had evidence of another offense and that the prosecution intended to prove it. It appears that, as a result of the deputy's statement, the appellant thought that the prosecution would try to bring the 1946 incident into the evidence, and that a retraction from Mrs. Hubbard would help in his defense. The next day after the preliminary examination herein, the appellant went to Bakersfield and had a conversation with Mrs. Hubbard wherein he asked her if she would retract a statement which she made in 1946.

At the trial herein (the second trial) the prosecution called Mrs. Hubbard as a witness, intending to prove by her testimony that, in the conversation about the retraction, appellant had made an admission regarding the charges herein. The judge had presided at the first trial where the same testimony had been offered but had not been received. At the present trial, appellant's counsel requested the judge to hear his objection, to Mrs. Hubbard's testimony, in the absence of the jury. At such hearing in the absence of the jury, appellant's counsel presented to the judge a transcript of the first trial wherein the same testimony had been offered and rejected. Appellant's counsel objected to the proposed testimony and argued that the purported admission was inextricably interwoven with a statement as to an alleged criminal act occurring in 1946 (where there was no presecution) and that if a part of the conversation were received, under the guise of an admission, the appellant would be placed in a position where he would have to remain silent and not explain the incident or he would have to explain the incident by discussing before the jury the whole background of the former unfounded accusation. Details of the alleged 1946 crime were discussed in the absence of the jury, and counsel for appellant argued that the retraction related only to that 1946 incident and that if the prosecution were allowed to bring that matter before the jury it would be extremely prejudicial to appellant and would be reversible error. The judge said that he thought the testimony was admissible.

When the trial was resumed in the presence of the jury, Mrs. Hubbard testified, on direct examination by the deputy district attorney, that she had a conversation with appellant on September 11, 1958, in Bakersfield. The deputy asked her to relate the conversation insofar as it concerned the charges for which he is now being tried. She testified that he wanted her to sign a retraction of a statement she had made, and that she said, ‘I'd be glad to if there was any doubt in my mind that he hand't committed this thing, but there wasn't.’ The judge said, ‘When you said ‘this thing,’ were you referring to this offense which he is being tried for now.' She replied in the affirmative. The deputy asked what else was said, and she replied: ‘I told him that there wasn't any doubt in my mind. He said, ‘Well, I didn't say I didn't. I said you could help me get out of it.’' The deputy asked what else was said, and she replied: ‘I asked him if he hadn't rather get some help now while there was a chance than to wait until maybe the next one wouldn't be as lucky as this little girl he is accused of now.’ The deputy said, ‘Did you say anything about the gas chamber?’ Counsel objected to the question on the ground that it was leading. The objection was overruled. The witness said: ‘I told him the next little child might not be as lucky as this last one; that he was headed—I said, ‘Joe, you know where you are headed, to the gas chamber.’' She said further that the appellant did not answer that. The judge said to the witness: ‘[H]ad you made some statement about this particular case that he wanted you to retract?’ She replied, ‘No, sir, not about this one.’ The judge asked the witness, ‘What was it he wanted you to retract?’ Counsel for appellant objected to question ‘on the basis that I think the jury should be excused before any further testimony of this witness is given.’ The deputy district attorney said, ‘I will stipulate that the answer to that question would be inadmissible.’ The judge said: ‘Well, I think so, too, but I didn't think there would be any objection to it. I thought maybe they would welcome that. All right, the objection is sustained.’ Thereupon, in the absence of the jury, appellant's counsel made motions (1) to strike out the testimony of Mrs. Hubbard relative to that conversation, and (2) to declare a mistrial on the grounds that the conversation related to the alleged act of 1946, and that the judge had permitted the deputy district attorney to do indirectly what he could not do directly. Appellant also argued that the judge should declare a mistrial because the judge had asked the witness what the conversation (retraction) related to, when the judge knew that the only response that could be made would disclose the alleged act of 1946. The motions were denied.

‘[I]n a prosecution for committing * * * acts prohibited by section 288 of the Penal Code, evidence that defendant has perpetrated similar acts with a person or persons other than the prosecuting witness is inadmissible and, if received, is prejudicial error.’ People v. Huston, 45 Cal.App.2d 596, 597, 114 P.2d 607. The prosecution argues that the statement of appellant that ‘I didn't say I didn't’ was an admission that he had committed the acts charged herein. Appellant argues that the statement related to the 1946 incident and that it was not such an admission. It is clear that the retraction which appellant was seeking related to the 1946 incident. Mrs. Hubbard testified, however, that she was referring to the present charge when she said she would be glad to sign a retraction (as to the 1946 incident) if there was any doubt in her mind that ‘he hadn't committed this thing.’ It is not clear that appellant was referring to the present charge when he allegedly made the statement ‘I didn't say I didn't.’ Of course, if he was referring to the 1946 charge when that alleged statement was made, there was no admission as to the present charge. In any event there was ambiguity as to which incident was being referred to, and there was a close question as to whether the conversation about a retraction of the 1946 statement should be received. In the discussion which was had in the absence of the jury, counsel for appellant argued to the effect that the whole conversation about a retraction related to the 1946 charge. In the former trial (where the judge in the present also presided) the testimony regarding the retraction and the alleged admission was not received. In the present case the testimony presented by the prosecution, and questions asked by the judge, regarding the retraction, brought before the jury, by implication, the fact that appellant had been charged previously with a crime.

Examples of such testimony and questions, creating such implications, are as follows: The deputy district attorney asked Mrs. Hubbard to relate the conversation insofar as it concerned ‘the charges for which he is now being tried.’ The judge asked, ‘[W]ere you referring to this offense which he is being tried for now?’ The judge also asked if she had made ‘some statement about this particular case that he wanted you [her] to retract?’ She replied, ‘No, sir, not about this one.’ The judge asked, ‘What was it he wanted you to retract?’ Thereupon, counsel for appellant objected to the question, and the deputy district attorney conceded that the question was improper; and the judge also conceded that the question should not be answered, and he stated further that he thought there would not be any objection to the question and that ‘they would welcome that.’ (It is to be noted that this question by the judge called for express disclosure of the 1946 charge; and it is to be noted that counsel for appellant had argued at length [approximately 15 minutes], in the absence of the jury, that the alleged retraction could not be separated from the 1946 incident and that the 1946 incident should not be brought before the jury.) After Mrs. Hubbard apparently had finished her testimony regarding the retraction, the deputy district attorney asked her, ‘Did you say anything about the gas chamber?’ Appellant's objection, on the ground that the question was leading, was overruled. She replied that she told appellant that ‘the next little child might not be as lucky as this last one,’ and appellant knew he was headed ‘to the gas chamber.’ It thus appears that, over the objection of appellant, the jury was told not only that appellant had been previously charged with a crime, but that the crime involved a child. The deputy district attorney, in asking that leading and irrelevant question regarding ‘the gas chamber,’ afforded Mrs. Hubbard an opportunity to relate a part of the conversation which included her opinion to the effect that appellant's inclination to commit crimes involving children was such that the penalty for his next offense might be death.

In People v. Bentley, 131 Cal.App.2d 687, 281 P.2d 1, wherein defendant was convicted of violating said section 288, an officer testified that he questioned the defendant about his activities in 1942 when he had been a suspect in another case. It was held therein that defendant did not have a fair trial; and the judgment was reversed. In that case it was said (131 Cal.App.2d at page 690, 281 P.2d at page 3): ‘It is obvious from the record that the police officer deliberately made the statement about defendant being a suspect in another case in 1942 with the idea in mind of prejudicing defendant. * * * [T]he statement was highly prejudicial. The district attorney knew, or should have known, the testimony the officer was going to give and should have warned him not to make the statement. * * * The prosecutor has the duty to seee that the witness volunteers no statement that would be inadmissible and * * * prejudicial. * * * The defendant stood as one who had been accused of some other sex offense. His counsel no doubt realized the gravity of the situation. Should he ignore it, or should he allow the defendant to deny that he had been accused of some other offense? * * * When the statement was made the court should have declared a mistrial and discharged the jury.’ It was also said therein (131 Cal.App.2d at page 691, 281 P.2d at page 3): ‘The mere accusation of an offense upon an 8-year-old girl arouses a feeling of revulsion that is not easily removed. It is especially necessary that in such a case the rights of the defendant be scrupulously respected. * * * By the time the evidence was in defendant was defending himself not only against the crime charged in the information, but against the charges of misconduct toward the Tomlinson girl and the Johnson girl. What the law does not permit to be done directly was done indirectly.’

In the present case the deputy district attorney and the judge should not have asked said questions which brought before the jury the fact that appellant had been charged previous with having committed a crime. Also, the deputy should not have asked the witness whether anything was said about the gas chamber. Those questions were improper and prejudicial.

Appellant asserts that the court erred in making certain comments to the jury when the jury reported that a verdict could not be agreed upon. The jury retired for deliberations at 12:51 p. m. When the jury returned to the courtroom at 5:25 p. m., at the request of the judge, the foreman said that a verdict had not been reached, but he thought the jurors could come to a decision. The judge said that it ‘seems to me you ought to be able to arrive at a verdict.’ The jury returned to the courtroom at 6:15 p. m., and the foreman said that the jurors stood 9 to 3 as to each of the two counts, and that, ‘We are a hung jury,’ and he did not think there was a chance of arriving at a verdict. The judge asked, ‘How many members of this jury think that there is a chance of arriving at a verdict? Hold up your hands. Well, what about it?’ The record does not show whether any juror indicated that he thought the jurors could agree. The judge said: ‘Well, how long have we been trying this case, four days?’ The deputy district attorney said: ‘Yes, your honor.’ The judge said: ‘The trial has lasted four days. It's not very fair to the County of Ventura for the Court to discharge them without very careful consideration.’ One of the attorneys for appellant said: ‘Well, if they say that they are hopelessly hung. That is what I understood.’ The judge said: ‘I have known them to say they were hung many a time and still bring in a verdict one way or another. Mr. Bailiff, take this jury to dinner. When you come back from dinner, you can deliberate further.’ The verdicts were returned at 9:30 p. m. Appellant argues that the judge's comment that, ‘It's not very fair to the County of Ventura for the Court to discharge them [jurors] without very careful consideration,’ was prejudicial and indicated that the judge thought there should be a verdict of conviction. This was the second trial of the case, and that fact had been disclosed during the trial. When the judge said that it is not very fair to Ventura County to discharge the jury without very careful consideration, the jurors could reasonably infer therefrom that the judge believed that the evidence against appellant was of such substantiality that the case would be tried again, and consequently there would be further expense to the county. It is to be noted that the comment of the judge did not include a counterbalancing statement that also it would not be very fair to the defendant to discharge the jury without very careful consideration. There was an implication in the comment of the judge that there would be no unfairness to the defendant if the jury were discharged, but there would be unfairness to the county. The court erred in making such comment.

As stated in People v. Bentley, supra, the mere accusation of such an offense arouses a feeling of revulsion that is not easily removed and ‘It is especially necessary that in such a case the rights of the defendant be scrupulously respected.’ In the present case the appellant was entitled to have the close question of fact decided by the jury without the adverse implications which were created by deviating from regular established trial procedure. Such implications were wholly uncalled for and were prejudicial deviations from such procedure, with the result that appellant did not have a fair trial.

A denial of a fair trial is of course a miscarriage of justice, and a resulting conviction cannot be upheld under the provisions of section 4 1/2 of article VI of the state Constitution. People v. Lyons, 47 Cal.2d 311, 324, 303 P.2d 329.

In my opinion the judgment and the order denying a new trial should be reversed, and the cause remanded for a new trial.

FOOTNOTES

1.  For example, the following occurred: ‘The Court: Well, he wasn't accused of anything that happened in 1946. (Referring to a previous transcript.) ‘* * * ‘The Court: It (referring to a previous transcript) says, ‘Did you have a conversation with him on the morning of September 11th, 1958, concerning the charges that he is being tried for here now?’ ‘Mr. Maxwell: That's right. ‘The Court: She said, ‘I did.’ ‘* * * ‘The Court: Why would he be trying to get a retraction about something that happened—— ‘Mr. Waite: We don't know. ‘The Court: —in '46? ‘* * * ‘The Court: Well, I assume that as they go along and this witness testifies, it will be connected up with this case. ‘Mr. Deem: It certainly will, your Honor. ‘* * * ‘The Court: It is conceivable that he would say I didn't say something at one time and then in another conversation say something else, which could be construed to be a denial. That is conceivable. ‘Mr. Waite: Well, if the Court please, they were both so closely interwoven—— ‘The Court: It is more or less a matter of argument, I guess. ‘* * * ‘The Court: So far as I am able to see, it was a conversation about this particular act. Now, I can't tell anything to the contrary. ‘Mr. Waite: But, if the Court please, our problem—— ‘The Court: I don't know anything about 1946 or what happened back there, if anything. I don't know anything about that. This witness presumably is going to be talking about this particular case. If she sisn't, you can easily elicit on cross-examination what the facts are. ‘* * * ‘Mr. Waite: * * * It is discretionary with the Court whether the Court wishes to allow it in. If the Court feels that it is so untrustworthy that it should not be, he could refuse. ‘Mr. Deem: There is no reason why she should be regarded as untrustworthy. There is no indication that she has told any falsehood to this Court or any place else. ‘* * * ‘The Court: They were trying to get a retraction from her. What had she said that they wanted her to retract? ‘Mr. Deem: She had come down to our Sheriff's office. She had described the offenses committed against her little girl in 1946. This defendant the day after the preliminary hearing went up and told her that he had been held to answer on this particular charge and wanted her to retract her story. She said, ‘Well, I might help you out if I was convinced that you didn't do that act down there, but I am convinced you did do it.’ And he said, ‘I didn't say I didn't do it.’ ‘The Court: What convinced her that he did it? What knowledge did she have about it? ‘Mr. Deem: Because he had done the same thing to her little girl before. She knew he had done the same thing to Mrs. Pena's little girl. There were two other little girls up there that she had heard about. ‘* * * ‘Mr. Deem: And so she was convinced he had done this act down here and she accused him of doing this act down here and he said, ‘I didn't say I didn't. I said you could get me out of it.’ That is an admission, clearly an admission.'

FOURT, Justice.

LILLIE, J., concurs.