PEOPLE v. COLLUP (1945)

In an information filed by the District Attorney of Los Angeles County, the defendants were charged in count I with the crime of assault with intent to commit rape; count II accused the defendants of assault by means of force likely to produce great bodily injury; and, in count III, the defendants were charged with the crime of conspiracy to commit rape. Pleas of not guilty were interposed to each count and the cause proceeded to trial before a jury, resulting in the conviction of both defendants upon all three counts. A motion for a new trial was denied as to each defendant. Without pronouncing judgment, the court suspended the proceedings and placed defendants on probation, conditioned upon the payment by defendant Collup of a fine of $250; that defendant Flaten pay a fine in the sum of $100; and that both defendants refrain from the use of intoxicating liquors during their respective terms of probation, which were fixed at five years in the case of defendant Collup and two years in the case of defendant Flaten. From the order denying their motions for new trial, defendants prosecute this appeal.

The record reflects that the offenses were allegedly committed in a double apartment located in the city of Los Angeles on March 17, 1944. It appears that some two years prior thereto, the apartment was rented and occupied by Nathalie Rosenman, named as the victim in each count of the information, Sharlyn Curtiss and Marjorie Nelson. During the latter part of 1942, Miss Nelson moved away and defendant Flaten moved in, and, with the remaining two occupants, continued sharing the apartment until the date of the alleged offenses. Miss Nelson subsequently returned to Los Angeles, but did not thereafter occupy the apartment although she was a frequent visitor thereat. Miss Nelson was very friendly with Miss Rosenman, saw her practically every day during the month of March, 1944, and they frequently took their evening meal together. On Sunday morning, March 12th, Miss Nelson observed that Miss Rosenman was talking irrationally. On the same day, defendant, Miss Flaten, returned home from a visit of several months in San Francisco, and also noticed that Miss Rosenman was seriously distraught mentally. It might here be noted that Miss Rosenman's mental infirmity is conceded. A resident psychiatrist at the Psychopathic Department of the Los Angeles General Hospital diagnosed her mental illness as ‘dementia praecox or chizophrenia, characterized by withdrawal from reality and by periods of excitement, irritation and irrational behavior.’ Furthermore, at the trial it was stipulated that, if Dr. Worley, a psychiatrist at the State Hospital for the insane at Norwalk, were called as a witness, he would testify that he examined Miss Rosenman on March 22, 1944, and that, in his opinion, she is insane. Count III of the information, charging conspiracy to commit rape alleged that Miss Rosenman, the victim named therein, ‘was then and there a person of unsound mind, and incapable of giving legal consent.’ On the evening of Mrach 16th, Miss Nelson stopped at Miss Rosenman's apartment and found the latter acting very irrationally. Defendant Miss Flaten was also present. On that evening Miss Nelson informed the defendant Miss Flaten that she had contacted Miss Rosenman's father in an eastern city and had been told by him to take care of Miss Rosenman until her mother would arrive in a few days. The father suggested to Miss Nelson that his daughter should go to a rest home and there await the mother's arrival. Miss Nelson called a rest home and made arrangement for Miss Rosenman to go there. On that occasion Miss Flaten stated to Miss Nelson that she was exhausted from taking care of Miss Rosenman for the preceding five days and that she could not stand it much longer. Miss Nelson testified that one the evening of March 16th she observed Miss Rosenman taking a bath and that there were no bruises, scratches, or marks of any sort upon her body.

The owner and manager of the Women's Sanitarium called about nine o'clock on the morning of March 17th to take Miss Rosenman and was informed by Miss Flaten that ‘we have decided not to send her to the sanitarium; we are going to take care of her.’ Thereupon the sanitarium manager departed.

On the evening of March 17th about six o'clock, according to her testimony, Miss Marjorie Nelson came to the apartment and observed Miss Rosenman in her bedroom. There was a pile of clothes on the kitchen sink and a portion of such clothes had blood upon them. As Miss Nelson entered the apartment she observed Miss Rosenman in the middle of the bed in a ‘praying position’ and she also observed defendant Collup standing by the foot of the bed. At that time Miss Rosenman and defendant Collup were completely in the nude, there was blood on a sheet and blood was also running down Miss Rosenman's face. Miss Nelson called the police.

The physician at the Los Angeles General Hospital who examined Miss Rosenman on the evening in question testified that he found ‘a very small cut just not large enough to require suturing and a small amount of blood in connection with it.’ This injury was on the ‘back portion of the top of the head’. The physician further testified ‘coming down to the neck there was a bruise, contusion on the throat here. As a matter of fact, I think there was a small abrasion on the back of the neck. Then coming down to the chest, I don't recall finding anything pathological there.’ Then ‘on the back of each one of the shoulder blades was also a contusion or an abrasion about two or three inches long * * * then coming down to the abdomen, down on the lower portion there were several excoriations, other marks, and those looked like there was some pretty heavy blows because there was a portion all around all of those small scratches as though some more or less heavy pressure had caused them.’ ‘I believe it was the right thigh had some marks, reddened portions around it and also some on the inner portion of the right thigh.’

With reference to his vaginal examination of Miss Rosenman, this physician testified that the hymen had been ruptured, but as to whether it was a recent rupture he testified ‘I would be unable to say.’ This physician testified that, except for the blood he observed on Miss Rosenman's head there was no blood on any other part of her body. In answer to the question, ‘Doctor, was there anything about the examination to indicate to you that any recent act of sexual intercourse had occurred?’ the physician replied ‘No, sir.’

Miss Nelson testified that on the evening of March 17, when she met the defendant Flaten in front of the apartment, defendant told her not to go into the apartment, saying: “I called a friend of mine, and he sent some friend over that knows all about these things, he has been in one of these institutions and he knows.' I said, ‘Did the nurse come?’ She said, ‘No, the nurse didn't come,’ she said, ‘The doctor was not going to be there today,’ and she said, ‘Marge, I think all Nathalie needs is a good lay, so’ the said, ‘I brought a man over and he has been beating her all day,’ she said ‘You should see the apartment, it's full of blood, he has been hitting her and everything all day in there,’ and I said, ‘I am going in the house, Lillianne,’ and she stayed out in front and I went in the house.'

When the police officers arrived at the apartment Miss Rosenman was dressed and defendant Collup was lying across the bed with a robe on.

Another witness, Sharlyn Curtiss, testified that on March 17th, about 10 o'clock in the morning she called defendant Flaten on the telephone and inquired if Miss Rosenman had been taken to the hospital to which the defendant Flaten replied that the nurse had telephoned stating that her automobile had broken down and that the defendant Flaten did not know when the nurse would call.

On the same evening before she left her office, Miss Curtiss received a telephone call from defendant Flaten advising her not to come home until about 11 o'clock, because, defendant Flaten stated, she ‘was experimenting. * * * she and a doctor were experimenting on Miss Rosenman and she did not want me to come home.’ Miss Curtiss further testified that she then requested Miss Flaten to permit her to talk to the doctor, to which defendant Flaten replied: ‘No, you cannot talk to him. He is busy.’ Miss Curtiss, however, persisted in her demand to talk to the doctor and finally defendant Collup came to the telephone, whereupon Miss Curtiss said to him ‘Are you a doctor?’ to which he replied ‘Yes, I am. * * * He said he was taking care of Miss Rosenman. I said ‘Well, can I come home?’ He said, ‘Why, of course you can come.’'

The witness Miss Curtiss arrived about six o'clock and met defendant Flaten as she was entering the apartment, whereupon, according to the witness, the following transpired: ‘I asked her first, of course, if Nathalie had been taken to the hospital, and she quieted me, said ‘Just a moment, I have something to tell you instead.’ She said ‘Nathalie is fine, there is nothing wrong with Nathalie, she is as normal as you and I, and after what I am doing she will be perfectly normal and she will snap out of this condition that she is in.’ She said, ‘I brought in a man and he is giving her a good beating, he has been here all day and he has slapped her and beat her up.’ She said, ‘That will knock her out of this condition she is in,’ and she said, ‘All Nathalie needs is a man and a good * * *.’'

The witness Miss Curtiss further testified that defendant Miss Flaten told her that the defendant Collup had recommended that Miss Rosenman not be taken to the rest home ‘because these institutions are horrible places, and he thought he could treat her better, under his treatment that she would snap out of this condition that she was in.’

This witness testified further that subsequently, while she was in the dinette, defendant Collup emerged from Miss Rosenman's room ‘wearing that green robe with blood all over it and blood all over his face and all over his hands.’ That defendant Collup told the witness, referring to Miss Rosenman, that he ‘had beat her up.’

Defendant Miss Flaten testified that she first observed Miss Rosenman's unusual and irrational conduct on March 12th; that Miss Rosenman told her ‘she was losing her mind and her life, she said she had an affair previously with one fellow she was with in San Francisco that had bothered her, and that she went to have a physical examination by Dr. Clark, and that he had told her that there was nothing wrong with her, to come back and see him in three months. She did not go back to see him in three months, and that was the reason for that cancer, she said she had. She said she had had a love affair two or three years previously, and she talked a great deal about an imaginary husband she had. She had hallucinations of grandeur that she had a message to give to the world and she told me to write down what she had to give because she was going to die. She talked about a dream, having an affair with me, * * * and hallucinations, people accusing her of all sorts of things. She tried to burn the house down on one occasion, and she beat me up on another occasion, and a lot of conversation that took place was due to the fact that she said she had never had a man to satisfy her and she was living a subdued lovelife.’

According to the testimony of defendant Miss Flaten, she had known her co-defendant Collup some three or four months, but had not seen him for two months preceding March 17th, on which morning, according to her testimony, defendant Collup telephoned and Miss Flaten explained to him ‘the situation that occurred with this girl, and that we had called and arranged for her to go to a sanitarium and he said ‘Hold everything, I will be right over.’' According to defendant Miss Flaten's testimony, her co-defendant Collup arrived about ten or ten-thirty o'clock on the morning of March 17th, they went directly to the bedroom where they found Miss Rosenman sitting on ‘top of the bed with her green slacks on and her T shirt, I had dressed her in the morning. She was waving her arms and nodding her head and pulling her hair like this, going into the same type of motion with him, pulling her hair and waving her arms around and he lifted her off the bed and lifted her down across his lap and started to comb her hair and push her hair out of her eyes, and tried to soothe her, and then said, ‘What's her name,’ and I said, ‘Her name is Nathalie, but she calls herself Nettie,’ and he said ‘What's the matter Nettie,’ and she wouldn't talk and he seemed to try to talk to her but she wouldn't answer.' On that occasion, according to defendant Miss Flaten's testimony, she related to her co-defendant some conversations that she had with Miss Rosenman ‘about her imaginary husband and the fact that she acted sort of homosexual towards me and I though that she might be subdued through some sort of treatments. I said that she was in love with me, and in love with this man in Arrowhead, and I also showed him an article I had read in the Reader's Digest pertaining to the treatment of dementia praecox, something that other people said she had, and he said he didn't believe in that stuff.’ Defendant Miss Flaten testified that her co-defendant took Miss Rosenman off the bed six or seven times, finally the two defendants went into the kitchen. Subsequently Miss Rosenman came into the kitchen whereupon defendant Collup took her by the shoulders and told her to open her eyes, that Miss Rosenman ‘started talking about something and Collup said ‘That's all right’ and he slapped her across the face with his hand.'

Shortly after the arrival of defendant Collup, he and his co-defendant commenced imbibing alcoholic beverages, which continued throughout the day. Defendant Flaten had one and defendant Collup two drinks of whiskey, and, in addition thereto, they consumed all of the contents of one and practically all of a second bottle of rum. A police officer testified that defendant Collup was intoxicated and that defendant Flaten had been drinking.

Concerning the scarcity of his attire, the defendant Collup testified that he and his co-defendant went into one of the bedrooms about 4:30 p.m. where he ‘stripped down to my shorts' and engaged in an act of sexual intercourse.

A police officer testified that he and two other officers had a conversation with defendant Flaten at her apartment on March 22nd, which was several days after the occurrence of the incidents which gave rise to this prosecution, and in which conversation the last. named defendant stated, among other things, ‘that she was of the opinion that perhaps Miss Rosenman, that if Miss Rosenman had an act of sexual intercourse with a man it would relieve the nervous tension and probably help her’; that ‘Mr. Collup had said that he was of the same opinion.’ At a subsequent conversation on the same day, defendant Flaten was quoted as saying ‘there was some more talk between Collup and her to the effect that intercourse might relieve the nervous tension, and would probably help Miss Rosenman’; that after she and defendant Collup ‘had consummated the act of intercourse between themselves, she took Mr. Collup into Miss Rosenman's bedroom and left him there with the idea in mind that he would have sexual intercourse with her.’ At a third conversation on March 23rd, in the office of the district attorney, defendant Flaten was asked whether she actually knew that her co-defendant had an act of sexual intercourse with Miss Rosenman to which she answered ‘that she did not actually know but that he went into the bedroom with that intention.’

Defendant Collup, testifying in his own behalf, denied that he had sexual intercourse with Miss Rosenman; stated that he telephoned his co-defendant about 9:30 a.m. March 17th, at which time the latter informed him that ‘my roommate beat me up; I am going to have to put her in some institution,’ to which he replied ‘All right, I will be right over.’ That when he arrived at the apartment Miss Rosenman ‘was sitting on top of the head of the bed, pulling her hair around in her eyes, and swinging her head back and forth.’ He went over to her and said, ‘Here, come on; you are all right; come down from there before you hurt yourself.’ He put his arm around her back and lifted her off the head of the bed and sat at the foot of the bed holding Miss Rosenman; he brushed the hair out of her eyes. Defendant Flaten got him a comb and he combed Nathalie's hair. She was trying to get away from him and he put his arm behind her and told her: ‘Come on, Nettie. Just take it easy. You are okeh.’ He sat with her for about fifteen minutes attempting to quiet her and telling her that she was just unstrung; all she needed was a little rest and not to get excited. He took her and laid her down on the bed and she remained quiet. He stood there and watched her for a few minutes and she remained quiet and he and defendant Flaten then went to the kitchen.

The latter told him she was going to send her to a mental institution and that she had telephoned Miss Rosenman's mother and that her mother would be here. He then said: ‘I don't know why you don't wait for her mother to get her * * * let her mother handle this. I wouldn't want it on my conscience to send any girl to a mental institution.’

While he and Miss Flaten were in the kitchen, he saw Miss Rosenman coming through the door with nothing on but a shirt; she came over and picked up a cloth and wiped her nose. He grabbed her by the shoulders and shook her and said: ‘Come on, Nettie; snap out of it.’ She stepped backward and her head hit against one of the cabinets in the kitchen. He grabbed her and pulled her a forward and she shook her head from side to side and up and down. At that time he slapped her across the chin and said: ‘Come on, snap out of it. We wouldn't want to be in any mess like this.’ He then took Miss Rosenman by the hand into her bedroom and put her to bed, and then went out into the kitchen and made himself a drink.

About 4:30 p.m., after he and Miss Flaten had consumed a number of drinks, they went into a bedroom together and about forty-five minutes later he was called to the telephone.

As he was returning to the bedroom which he and Miss Flaten had been occupying, he heard a noise on the wall and he walked into Nathalie's bedroom where he found her sitting on top of the bed with her head back against the wall. He picked her up and slapped her fact several times and then laid her down on the bed. At that time she was in the nude, and there were no bed clothes on the bed and he grabbed a sheet or blanket and put it over her. As soon as he would get her covered, she would kick it off. She got up on her knees and started moving her arms ‘as though she were swimming’ and while doing so she slid off the edge of the bed. He picked her up, put her back in bed, put another blanket on her and went into the kitchen and pured himself a drink.

In explanation of the blood upon himself and Miss Rosenman, defendant Collup testified that, while she was ‘swinging her head, she bumped her head against his nose causing it to bleed and that he wiped his nose with the sleeve of his robe.’

Defendant Collup testified that at no time did his co-defendant say anything to him with reference to his having sexual intercourse with Miss Rosenman. This witness also testified that later in the afternoon of March 17th, Miss Rosenman ‘was again sitting on top of her bed, that was all that was holding her up, with her head back against the wall, and that is why I heard this sound, so I picked her up and slapped her face several times and then laid her down on the bed. She was in the nude.’

Appellant's contention that, before the extrajudicial statements of a defendant can be admitted, the corpus delicti must be proved beyond a reasonable doubt, is without merit. The general trend of authority holds that it is not a prerequisite to the reception in evidence of the extrajudicial statements of the defendant that proof of the corpus delicti of that conclusive and convincing character necessary to satisfy the minds of jurors beyond a reasonable doubt shall be supplied. Upon prima facie proof of the corpus delicti, the extrajudicial statements, admissions or confessions of the accused may be admitted in evidence. People v. Selby, 198 Cal. 426, 434, 245 P. 426; People v. Sameniego, 118 Cal.App. 165, 4 P.2d 809, 5 P.2d 653.

As to counts I and III, except for the extrajudicial statements of defendant Flaten, we find no substantial evidence whatever establishing the corpus delicti of the offenses of assault with intent to commit rape or conspiracy to commit rape. In any event the extrajudicial statements of defendant Flaten were inadmissible against her co-defendant and, because of a total lack of proof sufficient to establish prima facie the fact of a conspiracy between the parties to commit rape, Subd. 6, Sec. 1870, Code of Civil Procedure, or any assault with intent to commit rape, such extrajudicial statements were equally inadmissible against defendant Flaten, herself. In the instant case it may be true that appellants had opportunity for commission of the crimes charged against them, but conviction of crime cannot be founded upon unreasonable inferences, speculation or suspicion, but must be grounded upon satisfactory evidence and reasonable inference predicated thereon; and while jurors are the sole and exclusive judges of the value and effect of evidence, their discretion and power in that regard is not absolute and may not be arbitrarily exercised when, as a matter of law, the evidence upon which the verdict is predicated is not of such a character that it can be said therefrom that no reasonable doubt of defendant's guilt existed.

In a charge of assault with intent to commit rape, intent is the vital element. The record before us, exclusive of the aforesaid extrajudicial statements, is barren of any evidence indicative of such required intent. In fact, the surrounding circumstances point strongly toward the conclusion that any assault made upon the person of Miss Rosenman was in an attempt to ‘snap her out of’ the mental condition with which she was afflicted and not for the purpose of ravising her. We have searched the record in vain for any competent evidence that any assault was made upon Miss Rosenman with intent to commit rape, or of the formation of any conspiracy to commit rape, and, as heretofore pointed out, the medical testimony negatived the inference that any such assault was made. On the hearing of the application for probation of defendant Collup, the trial judge thus expressed himself: ‘I am not satisfied at all that there was any real serious attempt to have sexual intercourse with Miss Rosenman. I don't know. I think Mr. Collup thought certain things might snap the girl out of it, as he expressed it, just as sometimes a prizefighter is slapped on the head by a trainer to bring him out of it. However, I don't know what was in his mind.’ While it is not within the province of the trial judge to interfere with or control the jury in passing upon the evidence, he has nevertheless a very salutary supervisory power over their verdict. Possessed of this power he should always be satisfied that the evidence as a whole is sufficient to uphold the verdict returned. When in his judgment it is not, he should not only unhesitatingly say so, as he did in this case, but he should set the verdict aside. One of the most prolific causes of injustice, in view of the restricted right of appellant courts with reference to the value and effect of evidence and the credibility of witnesses, is the reluctance of trial judges to set aside verdicts upon the ground of insufficiency of the evidence to support the verdict, when the judge is not satisfied that the verdict returned by the jury is sustained by the evidence. As suggested in People v. Lum Yit, 83 Cal. 130, 133, 23 P. 228, 229, the judge has the witnesses before him and ‘an equal opportunity with the jury to observe the manner of the witnesses, the character of their testimony, and to judge of their credibility, and to discover their motives. He, too, had to be satisfied that the evidence, as a whole, was sufficient to sustain the verdict. If he was not, it was not only the proper exercise of a legal discretion, but his duty, to grant a new trial.’ However contrary to public morals and decency was the conduct of defendants herein, there is no legal and substantial evidence that any assault committed by them, or either of them, upon Miss Rosenman was motivated by an intent to commit rape, nor that they entered into an illegal and unlawful and corrupt agreement to commit the crime of rape upon her. The medical testimony hereinbefore referred to, instead of establishing the fact that an act of sexual intercourse had taken place with Miss Rosenman, negatived that fact. Nor is proof of the corpus delicti of either crime aided to any extent by the extrajudicial statements or testimony of defendant Flaten, whose narrative is replete with statements that she ‘was of the opinion’ that certain things were going to be done; that defendant Collup went into the room with Miss Rosenman ‘with the idea in mind’ of having sexual intercourse; that ‘such was the intention’ of her co-defendant; and that ‘such was the assumption,’ all of which amount only to her conclusions and possess no evidentiary weight or probative value.

Much of what we have heretofore said is applicable to the offense of assault by means likely to produce great bodily injury as charged in count II of the information. From the evidence in this case it cannot be assumed that all of the injuries sustained by Miss Rosenman were inflicted by either of the defendants. As to defendant Flaten, there is no testimony that she committed any assault upon the alleged victim, and although it be conceded that she aided and abetted in the commission of any assault by her co-defendant, we are still persuaded that the proven assault cannot be classed as one violative of section 245 of the Penal Code. The victim of the alleged assault was concededly insane and unable to properly care for herself. From the reading of this record, it is obvious that neither defendant bore any ill-will toward the insane Miss Rosenman. Defendant Flaten, for several days prior to March 17, had been caring for Miss Rosenman who was given to violent outbreaks. Other than the testimony given by the defendants themselves that defendant Collup slapped the face of Miss Rosenman on one occasion in the kitchen and again in the bedroom to ‘snap her out of it,’ we can find no evidence of any assault on the part of either defendant, and it is not contended that such assaults produced the injuries on the head and other parts of Miss Rosenman's body. We are forced to the conclusion that the assault committed by defendant Collup was not of the kind or character contemplateed by section 245, Penal Code, and amounted to no more than a violation of section 240 or 242 of the same code. That an assault by means likely to produce great bodily injury may be committed with the hands or fists is undoubtedly the law, and it is equally well-established that it is not necessary in order to complete the offense to show that the defendant actualy injured his intended victim, but there must be evidence that, as the result of the physical force used or attempted to be used, there was likelihood of great bodily injury. If it be the manner in which the force was used that assumes importance, and not so much the degree thereof, then we are impressed that under the facts and circumstances here present it cannot, as a matter of law, be held that the proven force used herein was likely to produce great bodily injury; or that it amounted to the unlawful use of force and violence other than that denounced by section 242 of the Penal Code, or an unlawful attempt, coupled with the present ability to commit a violent injury on the perso of Miss Rosenman which is prohibited by section 240 of the same code.

The picture presented by the record before us indicates that defendant Flaten was caring for an insane companion and attempted to help her. When her co-defendant phoned on the morning of March 17th, she explained her plight to him and accepted his offer to aid her; that following the arrival of defendant Collup it was, as stated by the trial court, ‘their over-indulgence in liquor that was to blame for a great deal of what happened.’ But, however disgraceful, immoral or reprehensible their conduct may have been, there is no evidence of sufficient substantiality establishing the commission by them of the felonies charged in the information.

Finally, what we regard as the most important question raised on this appeal is the contention of appellants that the court abused its discretion in permitting the prosecution to read into evidence the testimony of the witnesses Nelson and Curtiss given at the preliminary examination, on the ground that such witnesses could not with due diligence be found within the State of California.

As to the witness Curtiss we are satisfied that there was no abuse of discretion committed by the trial judge in his determination that due diligence had been used and that it was ‘satisfactorily shown’ that the witness could not be found within the state. Sub. 3, sec. 686, Penal Code. As to this witness there was no showing that the testimony in question would have been any different if the absent witness had been present at the trial, nor was there any showing that evidence of an impeaching character had materialized since the preliminary examination. People v. Bernstein, 70 Cal.App.2d 462, 161 P.2d 381.

However, as to the witness Nelson, a very different situation is presented. In the case of this witness, the District Attorney announced that he had received a letter from her in which she advised that since the preliminary examination she had remarried and moved her residence to Caliente, Nevada, where she was permanently employed as a registered nurse in a hospital.

The District Attorney stated that he had received several other communications from the witness asking to be excused, that ‘she was served with a subpoena before leaving California. * * * I told her we would expect her here, but we have no way of enforcing the subpoena. On that showing the People will ask leave to read the testimony of Miss Nelson.’ Each defendant objected to the reading of the testimony of this witness on the ground that ‘I don't think due diligence has been exercised in obtaining this witness. We desire to have the witness present in front of the jury for examination * * *.’ Thereupon it was stipulated that if the Deputy District Attorney were sworn he would testify to the truth of the facts stated by him; the court ruled that the testimony might be read to the jury; and it was.

After the prosecution had rested its case, and while defendant Flaten was testifying as a witness in her own behalf, she was asked whether subsequent to the preliminary examination she had a conversation with the absent witness, Miss Nelson, relative to the latter's testimony given at the preliminary examination, to which interrogatory she replied in the affirmative. When asked to state the conversation defendant Flaten, over the objection of the prosecution, testified that the witness Nelson in the conversation with her said that ‘they hadn't gotten this story straight, and that she had said so many things that were prompted by Miss Curtiss that were untrue, she was very sorry, that she was making no charges against me * * *.’ Defendant Flaten's mother, testifying as a witness, corroborated the foregoing. Therafter, on motion of the District Attorney, the court struck the foregoing testimony of defendant Flaten and her mother from the record and instructed the jury to disregard the same. In this ruling the trial judge was correct for manifestly such testimony was admissible only for the purpose of impeaching the testimony of the absent witness Miss Nelson. It is elementary that, before the impeaching evidence is offered, the witness sought to be impeached must be asked whether or not he or she made certain statements or had certain conversations. If the witness admits making such statements or having such conversations, then the impeaching testimony is inadmissible because the witness stands impeached by his own admissions. But, if the witness denied making the statements or having the conversations attributed to him, then the impeaching evidence becomes material and proper. But, in the instant case, it was impossible for defendant Flaten to lay the necessary foundation because the witness sought to be impeached was not present at the trial.

While the ruling of the court in striking out the testimony was correct in that it excluded the testimony for impeachment purposes, nevertheless the evidence was material and should have been considered by the court in the exercise of its discretion as to whether the testimony of the witness Nelson given at the preliminary examination should be read into evidence at the trial because of her absence therefrom. It might here be noted that a mere reading of the factual background surrounding this prosecution at once suggests the importance of the testimony of the absent witness.

The testimony of defendant Flaten and her mother should have been offered at the time objection was made to the reading of Miss Nelson's testimony. Had it been so offered it would have been the duty of the court, in view of the importance of the defendant's right to be confronted in person by the witnesses against her, to weigh and consider such evidence in exercising judicial discretion on the motion to permit the testimony given at the preliminary examination to be read. While in the case at bar, the impeaching testimony was not, as it should have been, before the court at the time the motion to read the absent witness' testimony was made, it was later received in evidence, and, while not admissible for the purposes of impeachment, it could and should have been considered by the court in determining whether the testimony of the absent witness should not also have been stricken from the record. In the case with which we are here concerned there was a showing not only that the testimony of the absent witness, Miss Nelson, might have been different from that given by her at the preliminary examination had she been confronted with the impeaching testimony, but there was also a showing that the proffered testimony of an impeaching character materialized subsequent to the preliminary examination.

As an assurance against ancient evils of tyrannical governments, our country, in order to preserve ‘the blessings of liberty,’ wrote into its basic law the requirement, among others, that the forfeiture of the lives or liberties of persons accused of crime can only follow if procedural safeguards of due process have been obeyed. Sec. 1, 14th Amendment, Constitution of the United States. A compelling consideration in determining whether a right is embraced within the due process clause of the 14th Amendment is whether the right involved is of such a character that it cannot be denied without violating those ‘fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.’ Hebert v. State of Louisiana, 272 U.S. 312, 316, 47 S.Ct. 103, 104, 71 L.Ed. 270, 272, 48 A.L.R. 1102. It would indeed be vain to give the accused his day in court with no opportunity to cross-examine the witnesses against him. While, as stated by this court in People v. Bernstein, supra, the procedure allowing the introduction of such evidence is not repugnant to pertinent constitutional provisions where the defendant is confronted by the witness and given an opportunity to and did in fact cross-examine the witness, it was nevertheless, as stated in the case just cited, held in Brown v. State of New Jersey, 175 U.S. 172, 174, 20 S.Ct. 77, 78, 44 L.Ed. 119: ‘The state has full control over the procedure in its courts, both in civil and in criminal cases, subject only to the qualification that such procedure must not work a denial of fundamental rights, or conflict with specific and applicable provisions of the Federal Constitution.’ (Emphasis added.)

It must therefore follow that ‘due process' contemplates the opportunity and right to cross-examine each witness on all relevant and material matters relating to the witness' testimony, and, when that right and opportunity is refused, such refusal constitutes a denial of ‘dur process.’ This right to cross-examine as to any matter which has a bearing, directly or indirectly, upon any portion of the testimony given by a winess on direct examination is also preserved by section 2048 of the Code of Civil Procedure. Sharp v. Hoffman, 79 Cal. 404, 408, 21 P. 846, cited with approval in People v. Ebanks, 117 Cal. 652, 655, 49 P. 1049, 40 L.R.A. 269, and In re Estate of Kasson, 127 Cal. 496, 500, 59 P. 950. Whether, on account of the witness' absence, or, if the witness is present, on account of an erroneous ruling the effect is the same. It was no fault of the defendant that the witness was absent. Nevertheless, as a result of such absence, the defendant was denied the opportunity and right to cross-examine and lay the necessary foundation for impeachment, a matter that obviously and vitally affected the substantial rights of the defendant. If therefore the trial court believed that the testimony which was to be offered for the purpose of impeachment concerned transactions, conversations or actions of an absent witness which occurred after the preliminary examination, and of which the defendant could not therefore have had knowledge when she was confronted by the witness at such preliminary examination and had an opportunity to cross-examine her, and, unless there were logical and reasonable grounds for disbelieving and rejecting the testimony of such witnesses, in accordance with accepted rules for determining the credibility of witnesses, then he should have sustained the objection made to the motion of the District Attorney for leave to read into the record the testimony given by the witness before the committing magistrate. Although the evidence above referred to which tended to impeach the absent witness was not offered at the time the objection was made to the reading of the transcript of said witness' testimony, nevertheless, it was not too late in the interests of justice to reconsider the objection at that time to determine whether the testimony of such absent witness should not have been stricken from the record and the jury instructed to disregard it. To hold otherwise would impinge upon the hereinbefore mentioned applicable provisions of the Constitution, and therefore would amount to a denial of due process.

In view of the foregoing conclusions at which we have arrived, we need not consider any of the other several contentions urged by defendants upon this appeal.

The orders denying the motions of the defendants for a new trial are, and each is, reversed.

WHITE, Justice.

DORAN, J., concurs. YORK, P. J., concurs in the order reversing the orders denying a new trial.