I dissent. I am of the opinion that no prejudicial error was committed in relation to the evidence that on certain occasions defendant had gone under an assumed name. It is true that when the defendant on cross-examination was asked whether he at one time went under the name of William Mack, an objection to this question was overruled, and defendant answered in the affirmative. But shortly thereafter, the court reconsidered that ruling, sustained the objection, struck out the answer, and informed the jury that all questions in regard to the witness going under the name of William Mack, and all inferences to be drawn therefrom, and the answers to such questions, were stricken out, "and the jury instructed to purge it from their minds." With regard to the testimony showing that the defendant when arrested for the first time under this charge gave the assumed name of Williamson, and when arrested on a bench-warrant after his failure to appear at the trial on July 1, 1924, was found in San Francisco under another assumed name, I think that there was no error in admitting such testimony. In each instance, the use of the assumed name was an incident closely connected with and in substance a part of the act of flight after the crime was committed. Considered in that light, I think the *Page 588 rulings of the court are not subject to the general rule established by the decisions to the effect that a defendant may not be discredited before the jury by proof that on prior occasions entirely disconnected with the action, he has used an assumed name. I understand that in order that flight may be considered as an element tending to indicate a guilty mind, there must be evidence that the defendant knew that a crime had been committed, and perhaps also that he knew that he was charged therewith. (8 Cal. Jur., p. 347.) This defendant used the name of Williamson, not only when he was arrested with a part of the stolen property in his possession, but after he had been indicted under the assumed name of Williamson he pleaded by that name as his true name; although later he gave his true name. And, of course, it cannot be denied that when he used the name of Herold in San Francisco, he knew of the pendency of this action. On the morning of July 1, 1924, only half an hour before the case was to be called for trial, he was in his attorney's office apparently in preparation for the trial; yet he disappeared before the case could be called, and thereby forced the case from the calendar of that date.
Referring back to the evidence concerning the use of the assumed name William Mack, I think that since the testimony was stricken out in the manner above stated, there remains no possible ground of complaint by the defendant, unless it be that the district attorney was guilty of misconduct in asking the questions. But the defendant cannot avail himself of that objection, since the record does not show that defendant made any assignment of misconduct in relation to that matter. (2 Cal. Jur., p. 281.)
The other important point discussed in the main opinion relates to a matter connected with certain testimony given by the McPhersons, and especially to remarks made by the judge and by the district attorney at the close of the giving of that testimony. Prior to that time certain depositions of the McPhersons had been taken, which were on file in the action. On July 1, 1924, the McPhersons had come from their Texas home to California in order to testify at the trial of this action. When the abrupt disappearance of the defendant compelled a postponement of the trial, the court, in the absence of a jury and in the absence of the *Page 589 defendant, took the testimony of Mr. and Mrs. McPherson, showing the fact of their intended immediate return to Texas, and furnished the court a means of identification of their signatures. This was evidence addressed solely to the court as a part of the ground for admission of the depositions in evidence in the event that at the later trial of the case the personal presence of the McPhersons could not be obtained. It was at the close of the giving of this testimony that the judge and district attorney made the remarks referred to in the main opinion. It is clear enough that there was no intention to make comments upon the credibility or accuracy of the testimony contained in the depositions. But assuming that in some degree the remarks as made amounted to a commendation of the character of those witnesses, I think that there was no error except one in the nature of an unintentional misconduct by the judge and the district attorney. I have searched the record to find any assignment of misconduct made by the attorney of the defendant in connection with this matter, either at the time when the remarks were made, or at the time when the court allowed them to be read, in the presence of the jury at the trial of the action, as a part of the evidence constituting the foundation for admission of the depositions in evidence. Therefore, the same rule applies to which I have referred in connection with the questions asked of the defendant concerning the use by him of the assumed name of William Mack. In each of these instances, if there was any misconduct, I think that it was not of such a nature that the court can say that it was beyond cure by means of appropriate instructions. This being so, the rule applies that defendant cannot avail himself of an objection to such misconduct, when he omits to present that objection to the lower court, and only presents it for the first time in the court of appeal.
Inasmuch as I understand that the evidence here very strongly tends to establish beyond a reasonable doubt the guilt of the defendant, I have been unable to agree that the said errors, assuming them to be such, would justify a reversal. *Page 590
A petition for a rehearing of this cause was denied by the district court of appeal on April 6, 1925, and respondent's 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 May 4, 1925.
All the Justices concurred, except Lawlor, C.J., pro tem., and Seawell, J., who dissented.