Ordinarily the formal order would be the only response to a petition for rehearing.
But mistaken brevity in the opinion filed, having led counsel of recognized ability to the belief that we had based the decision on mistaken facts, prompts a departure from the rule in this instance. We have again carefully examined the evidence and specifications, only to reach the same conclusion. *Page 15
All that reached the jury touching the character of the house came into the case through defendant's agency, and the character of the inmates necessarily came with it. Strong and convincing evidence of defendant's relations with the woman Banks was presented to the jury through the same channels, and that which came to the jury through the prosecution was admissible under well-settled rules of evidence.
The testimony of defendant alone tells the story of his relations with her. Jurors must be credited with average intelligence, and it needs no more to know that early morning visits to the room of a prostitute, borrowing money from her, and stirring her to wrath and threats by the story of contemplated marriage, indicate more than a merely casual and platonic intimacy. And when to this is added the testimony of William Campbell and George Storrs, it needs not her possession of his trunk or other facts wrung from Lillie Banks and other witnesses on unwarranted cross-examination to remove all doubt as to what their relations were.
True, some evidence as to their relations did reach the jury through the prosecution, but more of it was part and parcel of testimony touching his admissions of guilt. These admissions were none the less admissible because they were made to a prostitute while he was seated upon the bed of shame in which she was lying.
His familiarity, his admissions, and conduct incompatible with his innocence, were relevant facts, and pertinent evidence cannot be excluded merely because it savors of the brothel and carries with it the stigma of infamy. Besides, the bulk of it came in without objection. (People v. Lane, 101 Cal. 517.)
The court sustained objections to and struck out answers to the two questions so bitterly complained of. The refusal to check counsel by express command was neutralized by counsel refraining from further questioning.
Ordinarily irrelevant questions tending to show other wrongful acts or moral depravity would be prejudicial, but when a defendant through his own lips and witnesses writes his shame upon the record, it would be sticking in the bark to hold that mere insinuations could injure.
Section 1404 of the Penal Code commands that error shall be disregarded, "unless it has actually prejudiced the *Page 16 defendant, or tended to his prejudice in respect to a substantial right," and it would be a travesty on justice to say that these questions or even the answers to them could degrade or injure a man in the eyes of a jury when he calmly told the same jury of frequent visits, borrowing money, and the wrath inspired in the breast of a prostitute when he told her he was to be married. During the cross-examination of these women, Dependener, as well as in the examination of defendant's witnesses, there was a shrewd, skillful, and persistent attempt by adroit and ingenious questioning to make it appear that there was no talk or thought of crime or prosecution until after this woman knew defendant was to marry. These witnesses had testified to his incriminating statements and conduct, and Lillie Banks said he never told her of marriage, and on one occasion had said that he came after his trunk and clothes. Following all other witnesses, the defendant contradicted the evidence as to his statements and conduct. He gave entirely different versions of such conversations and the reasons for his presence in the house. He told what Lillie Banks said when told of his matrimonial intentions, and attempted to account for his conduct and acts from Saturday night until the time of his last visit to the house. He, too, testified that he heard nothing of crime or prosecution until after this matter of marriage had been bruited.
His cross-examination was confined to matters brought out in direct examination. It was competent to test his credibility by asking questions tending to show that there was no engagement or thought of marriage at the time he says he told Lillie Banks of his impending marriage, nor until some days after he went to Sacramento. The question as to why he did not remove his trunk and clothing when about to make his wedding trip was also proper in this connection, and for the further reason that he had denied all such conversations testified to by Dependener and the women.
The sharp conflict in the evidence, defendant's credibility as contrasted with the credibility of the women, and the theory that he was innocent and the prosecution a conspiracy, hatched after marriage, excused and rendered non-prejudicial, if it did not entirely justify, the argument.
The petition for a rehearing is denied.
Chipman, P. J., and Buckles, J., concurred. *Page 17