I dissent.In my opinion the court committed prejudicial error in rejecting evidence which defendant offered. Defendant should have been permitted on cross-examination of the prosecutrix to show the relation which existed between them.
The evidence against defendant was circumstantial and the court should have given to the jury an instruction embodying the rules applicable to circumstantial evidence as set forth in the instruction offered by defendant, which is copied in the majority opinion. (People v. Rayol, 65 Cal.App.2d 462 [150 P.2d 812]; People v. Hatchett, 63 Cal.App.2d 144 [146 P.2d 469].) No instruction was given to the jury cover*248ing these rules. It is true that the proffered instruction, apparently through inadvertence, used the expression “evidence and circumstances” instead of evidence of circumstances. The use of the word and would not in my opinion be confusing to the jury. But if the court felt that the instruction would be confusing to the jury a slight modification should have been made.
Counsel for defendant complains that she was “intimidated, coerced and threatened by the trial court. ’ ’ She refers to proceedings which took place at the bench out of the hearing of the jury, when she attempted to offer in evidence a letter written by the prosecutrix to defendant in which she referred to him as “Darling Hard-working Hubbykins”:
■ “The Court : So it may be clear, many of these matters I will consider as the trial develops, but I resent very strongly, and I am sure the people of the State of California generally do, that when a prominent person is the complaining witness, the defense frequently tries to blackmail. I think the issue in this case is, Did the defendant enter the trunks and take the property he is alleged to have taken ?
“I will carefully consider, as a matter of law, each collateral matter that may throw some light, circumstantial evidence or otherwise, on that question, but I ask counsel not to be a party-her standing at the Bar is such that I am sure she will not be-not to be a party to permitting her client’s feelings to put her in position that people could say she was using the forum of the court as a means of retaliation at the complaining witness, with the idea a complaining witness in the future will think twice before they ask the court for their legal rights. I want to try the issues of facts fairly to the defendant, and I will rule on each matter, but I want you hot :to bring in any matters that are not material to the issue, and if you do so, I will handle the case in such a way that you may be sorry you did it.
“Mrs. Boot: I might state counsel is perfectly willing to stand back of every question that she asks; and further I might call your .Honor’s attention to the fact this defendant is practically just as prominent as Ethel Waters ever thought of being. He is a noted dancer; he is now at least with the spotlight of 1 Sweet and Hot,’ and at no time has he attempted to do anything but protect his rights under the law.
"The Court : At this time I am going to exercise my right, *249in view of the court in which the trial is proceeding, and I am ordering the defendant committed for the duration of the trial. That, of course, can be done in the presence of the jury, under the authority of People v. Williams, but I prefer that it be done in such a way the jury do not know that he is incarcerated. You will inform the bailiff to hold him.”
The record discloses that the following proceedings took place at a later time in the presence of the jury: “Q. (By Mrs. Root): Miss Waters, is it not true at that conversation that he asked you why it was you had told your sister, that he, Archie Savage, would have to make the break, but that you were forcing him to do so? A. I didn’t make any conversation like that.
“Q. And that further than that, that he wanted to know why it was, that after three years of your association, wherein you knew that he idolized you, that you had dumped him for Tommy Brookins ?
“Mb. Divecchio : Your Honor, we are going to object.
“The Witness: May I answer the question? She is trying to insinuate something-
“Mb. Divecchio : It is not proper cross-examination, and an attempt to cast aspersions in this case that have no bearing on the issues of the case.
“The Cotjet: I am going to make the ruling now before the jury,
“Mb. Divecchio: I think this witness needs that protection. This woman is a notable woman. She should not be made to pay the price of counsel and the defendant’s desire to ruin her.
“Mbs. Root: As a matter of record, I resent the statement of counsel as to defendant’s counsel.
“The Cotjet : I admonished you out of the hearing of the jury. Now, I am admonishing you in the hearing of the jury. I will stand on the record. This is not burglary; this is not embezzlement. It is alleged theft. It wouldn’t'matter if this defendant were her natural son. It wouldn’t matter if he was her husband, her lover, or anything. The issues in this ease are, ‘Did he go to the trunk and take the money?’ If he did, it would be theft, whatever the relationship was. In this case I don’t think the personal life of the complaining witness should be brought into the matter. I don’t think her *250private correspondence should be offered to the court. I don’t think insinuations about her relations—it doesn’t matter what her relations were with the defendant, and I now instruct the jury that evidently they were very congenial and very friendly over a period of years, but I instruct the jury that is immaterial, and I admonish you not to bring any more of Miss Waters’ personal matters into this case.
“Mrs. Root: If your Honor please, so the record discloses the situation, and so that counsel may understand, and so that the jury may understand, the theory of the defendant’s case is that the motive back of the entire situation is that it was not Archie Savage that took the money or the property, but it was a third person who took it.
“The Court : You can develop that by competent evidence. You can develop it by argument, but I hold that it is immaterial to go into her private correspondence and to try to go into her personal matters. In other words, because a person makes a complaint of a theft, their private life is not open to the whole world, and in this community especially there are plenty of examples where prominent people do not even complain when they are robbed. I am not prejudging this case. The defendant is presumed to be innocent and he should be tried on the merits of the case. Did he go to the trunk without authority, open it, and take therefrom property of the complaining witness ? And I am going to so handle this case, and I am sure that the Supreme Court will back me up on it, because the issues do not require that we go into the personal affairs of this complaining witness.
“Mrs. Root: In other words, am I to understand that the conversation—because we will have to meet it when the defendant takes the witness-stand as well as now, and also for foundation purposes, that the conversation that the defendant claims that he had with Miss Waters is not, as far as his theory is concerned, to be introduced, because it might or might not bring in the fact that they were very happily situated professionally and otherwise, until a third person came in, because the crux of our case arises over the conversation.
‘ ‘ The Court : That is not my ruling.
‘ ‘Mrs. Root : That is my only interest in the matter at the time of the conversation, as to whether or not he made such a statement to her.
“The Court: That is not my ruling. The conversation *251having been brought in in the beginning, can be gone into fully, but I suggest that you, as an officer of this court, do not take the privilege of suggesting things to this witness. When the defendant gets ready, he can get on the stand and tell any story he wants at his own peril. That is his privilege when he gets on the stand—anything that is material. I think you have no right at this time—it is a courtesy of cross-examination—it is only within the discretion of the court anyway, to suggest things to this witness, which are not in the record. You may, of course, ask her just what happened and go fully into what she says happened, but at this time I don’t think you should make suggestions to her which I feel are a reflection on her personal life.
“Mrs. Root: In other words then, I may not lay a foundation as to what he said by calling it to her attention and asking her if he made such a statement? Is that the court’s ruling?
“The Court: I see you are going to take advantage of the law, and as any prominent person comes into court, they do so by taking the risk of being slandered and having their personal affairs misrepresented. Very well. You know the law and you have that right. You go just as far as you want. I am not holding you out on anything, but I think I have the right to admonish you before the jury. I tried to admonish you privately, and now I admonish you before the jury, and I stand by the record.”
The record further discloses: “Q. (By Mrs. Root) And the first that you made a report, after that alleged conversation, was when in point of days? A. I called Archie Savage at his studio on Monday morning and gave him an ultimatum, was he going to let me put it in man’s hands or was he going to return my things—whatever he decided—was my conversation. I said, ‘God will not let.you go through with this,’ and I think God I can talk about it. I prayed with him not to make me make an open issue of this, not because I have anything to hide, because I haven’t. I am still a respectable woman, and you are known to hit under the belt, but you can’t do me any harm, and my relation with Archie Savage was clean, normal, and above board. That I am not ashamed of, and it wasn’t Tommy Brookins that caused our separation from that standpoint. It was because I refused to allow Archie Savage to desecrate and dissipate my privacy and my *252home, and that a doctor or psychiatrist can settle where Archie Savage is concerned. ... Q. You have never seen any of the jewelry in his possession that you claim that you lost? A. Would I likely see it ? Q. Have you seen it ? A. Have I ? You ought to know. You are his lawyer. He tells you the truth. Q. Have you ever seen it? A. He has admitted the truth to you. How could 1 see it? Mes. Root : We will move to strike the answer. The Witness: I suggest that you do. You are not trying this case on charity. He is paying you my money to try it, and I am not going to let you insult me.”
Although some of the criticized remarks were not made by the court in the presence of the jury, it is apparent that the court erred to the prejudice of defendant in several remarks which were made in the presence of the jury. Counsel for defendant had the absolute right to cross-examine the prosecutrix in the manner disclosed by the record, a right which was not to be accorded as a courtesy on the part of the court. Defendant had the right to take the witness stand and give his testimony without the advance statement from the court that he would be doing so “at his peril.” There was no occasion for the district attorney to refer to the prosecutrix as a “notable woman” nor for the court to speak of her as a “prominent” person. The court erred in instructing the jury that the relations of the prosecutrix and defendant were “very congenial, very friendly.” Especially damaging to defendant was the court’s statement in the presence of the jury that “in this community especially there are plenty of examples where prominent people do not even complain when they are robbed.” Defendant was injured by the statement of the court to his counsel that she was “going to take advantage of the law,” and that if “any prominent person comes into court, they do so by taking the risk of being slandered by having their personal affairs misrepresented.” The references to the fact that so-called prominent persons in this community may have been slandered on other occasions had no place in the trial. The rules of law should have been applied to the prosecutrix and to the defendant without reference to the experiences of other “prominent” people and without regard to the standing, or lack of standing, financially, socially or otherwise of the participants in the trial.
Although counsel for defendant conducted herself with commendable zeal throughout the trial and at all times with *253courtesy towards all of the participants in the trial, the court, without rebuking them, permitted the deputy district attorney and the prosecutrix to charge in open court that defendant’s counsel was being paid with the money of the prosecutrix and permitted the prosecutrix to state to counsel for defendant that she was “known to hit under the belt.” The rule that an attorney should not be permitted to browbeat a witness should work both ways and should be enforced to protect counsel from improper aspersions by a witness.
The evidence against defendant does not point overwhelmingly to his guilt. The prosecution relied in the main upon the testimony of the prosecutrix and that of two locksmiths who stated that they made keys to the trunks and that defendant was present at the apartment of the prosecutrix when the keys were made. The defense on the other hand relied upon the testimony of defendant and that of several witnesses who, in support of his alibi, stated that defendant was far away at the studio at the time he was placed by the locksmiths at the apartment of the prosecutrix.
In my opinion defendant has not been accorded a fair trial and the judgment should be reversed.
A petition for a rehearing was denied October 19, 1944. Wood (W. J.), J., voted for a rehearing. Appellant’s petition for a hearing by the Supreme Court was denied November 2, 1944. Carter, J., and Schauer, J., voted for a hearing.