The defendant was convicted of burglary, and appeals from the judgment and an order denying his motion for a new trial.
We will notice only assignments of error discussed by counsel for appellant, assuming that all others are waived.
1. It is first urged that the district attorney and his assistant, *Page 10 upon the examination of witnesses, and in argument, indulged in misconduct calling for reversal, and that the trial court likewise transgressed to the detriment of defendant.
It appears from the evidence and the unchallenged statement of counsel for appellant that Lillie Banks and Bertha Hodge were inmates of a house of ill-repute in Chinatown at Auburn. The burglary charged consisted of entering the room of the former in said house with intent to commit larceny.
Bertha Hodge was the principal witness for the prosecution, and testified that after midnight on July 17, 1904, she saw the defendant go up the back stairs of this house, and presently thereafter saw him standing by a dresser in the room occupied by Lillie Banks, taking some money from the latter's purse. That later he came out, said he wanted to see Lillie, and went the way he came. During her examination many questions were asked and answered touching her acquaintance with defendant and the frequency of his visits to this house.
The prosecuting witness Banks was allowed to testify as to defendant's familiarity with the premises, and his knowledge of her manner of keeping money and other articles in the dresser and room. She also enumerated articles missed by her that night.
Upon this examination, and the arguments of counsel touching the facts elicited, many charges of misconduct against counsel and court are based.
The evidence was certainly relevant. It tended strongly to show that the witness Hodge could not have been mistaken as to the person she saw in that room that night, and accounted for the rapidity and certainty of movement manifested by the intruder.
If any doubt as to its relevancy existed at the time of its introduction, that doubt must have vanished when the accuracy and credibility of the witness Hodge were directly assailed by evidence tending to prove an alibi.
True, such evidence had a tendency to place defendant before the jury in an unenviable light, but it was admissible under the same rule which would make it unquestionably proper had it related to a similar occurrence in a house occupied by respectable people. The character of the house was *Page 11 placed before the jury by defendant, and its character could not affect the admissibility of the evidence assailed.
It is argued that the cross-examination of defendant touching his engagement and marriage, and his failure to take his trunk from that house was erroneous, and as the objection of misconduct pertains thereto that phase of the case will be examined now.
Most, if not all, of the evidence as to the woman's connection with the trunk and defendant's relations with her, came before the jury through defendant's agency, and the defendant in direct examination introduced the subject of marriage.
In his direct examination he testified fully as to happenings, conduct, and conversations at that house, and it was perfectly competent to cross-examine him touching everything which occurred during the period covered by the direct examination, including his failure to remove his trunk from the house where the irate Miss Banks was domiciled. (People v. Teshara, 141 Cal. 636, [75 P. 338]; People v.Russell, 46 Cal. 123.)
In his direct examination, as well as in the direct and cross-examination of other witnesses, there was an evident attempt to make it appear that the woman Banks when informed by him of his intended marriage became enraged and threatened to cut the heart out of any woman he married, and that the subsequent unfounded accusation against him was the result of her jealous resentment. In view of this fact his conduct was very significant, and the prosecution certainly had the right to cross-examine him as to any matter or period of time embraced in his direct examination.
Sufficient has been said to indicate that the charges of misconduct, and errors assigned relating to the testimony above referred to, are not well taken.
Nor was there error in rulings as to other evidence offered by the prosecution. Most of the matter objected to was admissible under well-settled rules of law (Code Civ. Proc., secs. 1870, subd. 3, 1881, subd. 1), and that which was not admissible was either excluded when offered or subsequently stricken out.
Other assignments of error relating to the admissibility of evidence have been carefully examined and we are satisfied that no prejudicial error was committed. *Page 12
No substantial right of defendant was prejudiced by the remarks of the court here criticised.
Turning to alleged misconduct in argument and in the opening statement, we find no error sufficient to justify reversal.
One theory of the defense, clearly deducible from the evidence, was, that this prosecution was but the malicious attempt of an abandoned woman, inspired by jealous hatred, to ruin a man who had turned away from her.
Argument touching this theory and the degree of credit which should be accorded the testimony of these women and this defendant, did bring upon him severe and scathing criticism. But evidence upon which it was based was in the case through his election, and under these circumstances he can hardly complain. It is said that there is no evidence justifying the assertion in argument that the women were of negro extraction. Doubtless their appearance on the stand indicated such fact, and there is some evidence that one of them was "colored." It is also urged that it was improper to charge that defendant was living off the earnings of Lillie Banks, but defendant himself introduced evidence showing that he obtained money from her.
The references to the presence of his mother and other relatives during the trial might well have been omitted, but these references were as apt to help as to injure defendant, and too often attempts to arouse sympathy for defendants in this way make such references proper if not necessary, and there is nothing before us to show that it was not proper here.
It follows that there was no such misconduct as would justify reversal. (People v. Wells, 100 Cal. 459, [34 P. 1078];People v. Ward, 105 Cal. 340, [38 P. 945]; People v. Romero,143 Cal. 458, [77 P. 163]; People v. Perry, 144 Cal. 753, [78 P. 284].)
There was no impropriety in the opening statement. (People v. Lewis, 124 Cal. 559, [57 P. 470].)
2. Instructions numbered 10, 17, 18, 19, requested by defendant, were properly refused. (People v. Rodley, 131 Cal. 259, [63 P. 351]; People v. Perry, 144 Cal. 754, [78 P. 284].)
There was no error in refusing instruction numbered 13 requested by defendant. We have seen that there was evidence *Page 13 in the case which would hardly permit an instruction carrying with it the presumption that his general character was fair.
Besides, the instruction was altogether too broad. A defendant is clothed with a fair character for the purposes of the case. (People v. Fair, 43 Cal. 149.)
But this presumption extends only to traits of character necessarily involved in the particular case. If defendant's veracity, honesty, or any other trait is in issue it applies. But it would hardly be contended that in a case of assault, evidence as to chastity or honesty would be relevant, and we are of the opinion that this presumption applies only whereevidence to the same effect would be proper. (Ackley v. People, 9 Barb. 609; Danner v. State, 54 Ala. 127.1)
Instruction numbered 20, also requested by defendant, was properly refused, the substance thereof being covered by other instructions.
Nor was there error in modifying instruction numbered 23.
There was no error in giving instruction numbered 9, requested by the prosecution. It was predicated upon evidence in the case, and as it expressly states that the intent to commit larceny must exist at the time of entry, People v.Lowen, 109 Cal. 381, [42 P. 32], has no application.
Instruction numbered 25, given at the request of the people, is not erroneous. It is but a restatement of the principle that juries are exclusive judges of the weight and sufficiency of evidence, stated elsewhere in the charge. The jurors were told that their judgment as reasonable men is the test of their right to believe or disbelieve the testimony of a witness, and this of necessity is the rule governing the exercise of the discretion mentioned in section 2061 of the Code of Civil Procedure.
Instruction numbered 14, given at request of the people, standing alone would be objectionable, as omitting the elements that possession must be recent and unexplained. But instructions must be viewed in the light of evidence to which they apply, and the only evidence of possession in this case was confined to a period of three days after the offense, and the defendant denied such possession in toto, only explaining *Page 14 that one article, a collar, was never in the possession of the prosecuting witness.
Again, instructions must be read as a whole, and this instruction, read in connection with instructions 28 and 29, given at the request of defendant, where the omitted elements were plainly stated, could not have misled the jury. (People v. Gleason, 122 Cal. 372, [55 P. 123]; People v.Morine, 61 Cal. 367; People v. Gibson, 106 Cal. 458, [39 P. 864]; People v. Worden, 113 Cal. 569, [45 P. 844]; People v.Jackson, 138 Cal. 462, [71 P. 566].)
The instruction was general in its nature, and therefore it did not and could not assume a fact not proven. It contains no intimation that defendant had committed larceny.
We think the instruction given by the court of its own motion, though perhaps unnecessary, was not erroneous. It is not within the rule invoked by counsel, and if it was the testimony of the district attorney is of such slight importance that the instruction could have caused no prejudice.
3. A motion for a new trial on the ground of newly discovered evidence is addressed to the discretion of the trial court, and unless it clearly appears that this discretion was abused the conclusion of the trial court will not be disturbed. (People v. Buckley, 143 Cal. 392, [77 P. 169].) The newly-discovered evidence was entirely cumulative, and hence no abuse of discretion here appears.
The judgment and order are affirmed.
Buckles, J., and Chipman, P. J., concurred.
A petition for a rehearing of this cause was denied by the district court of appeal on June 26, 1905, and a petition to have the cause heard in the supreme court after judgment in the district court of appeal was denied by the supreme court on July 21, 1905. (See 147 Cal. 346.)
The following is the opinion of the district court of appeal denying a rehearing: —
1 25 Am. Dec. 665.