I dissent.
This is a case where defendant was charged and convicted, on evidence properly described in the majority opinion, as “unsavory and nauseating,” of three most serious crimes. It is also a ease in which the attorney general at the time of oral argument, and in a brief filed since, very properly concedes that the prosecuting attorney committed error in summarizing in the presence of the jury the contents of a statement supposedly given by defendant’s wife. The attorney general argues, and the majority opinion holds, that such error was not prejudicial. With this conclusion I cannot agree.
*35Before directly stating my reasons for believing that the admitted error was prejudicial, a brief reference to the state of the evidence should be made. The evidence of the prosecutrix, while not as clear as might be desired, and which, in some respects, is contradictory on whether penetration occurred, is legally sufficient, in my opinion, to support the conviction of rape. I also believe that her testimony, and that of her companion, is legally sufficient to sustain the conviction of first degree robbery. The majority opinion, however, fails to properly state appellant’s main contention as to this charge. He contends that the evidence shows that he was armed with a “toy pistol,” and contends that such a weapon is neither “deadly” nor “dangerous” as those terms are used in section 211a of the Penal Code in defining first degree robbery. It will be noted that no description of the “toy pistol” is set forth in the majority opinion, it being there held that “whether or not the pistol was a dangerous weapon is a question of fact to be decided exclusively by the jury.” That is not the law. Certainly the appellate court may, and should, in reference to that or any other implied finding of the jury, determine whether that implied finding is supported by the evidence. In the present case, no description of the “toy pistol” appears in the evidence, although the weapon was introduced into evidence. The attorney general, prior to oral argument, secured an order requiring the exhibit to be delivered to this court, and on the oral argument asked the members of this court to examine the weapon to' determine whether the implied finding of the jury that it is a “dangerous” weapon is supported. My associates have refused to examine the exhibit on the ground that it was “exclusively” a jury question as to whether the instrument was dangerous, and take the position that the appellate court has no power to examine the exhibit. Thus, in this respect, my associates contend that the sufficiency of the evidence cannot be passed on by the appellate court. To state the contention is to refute it. I have examined the exhibit. It is a metal toy pistol intended to shoot caps, has bakelite hand grips, and weighs a little over one pound. It is 614 inches long, and from the bottom of the hand grips to the top of the barrel is 4*4 inches. The exterior dimensions of the barrel are 1% inches by % inch. In raised letters along each side of the barrel over the trigger appears “ARMY 45.” From this brief description it is apparent that the weapon in size, *36weight and appearance approximates that of a real automatic pistol. If an unloaded pistol can be considered a “dangerous" weapon, because it could be used as a bludgeon, and that is the law—People v. Egan, 77 Cal. App. 279 [246 Pac. 337]; People v. Shaffer, 81 Cal. App. 752 [254 Pac. 666] ; People v. Freeman, 86 Cal. App. 374 [260 Pac. 826] ; People v. Hall, 87 Cal. App. 634 [262 Pac. 50]; People v. Seaman, 101 Cal. App. 302 [281 Pac. 660] ; People v. Raleigh, 128 Cal. App. 105 [16 P. (2d) 752]—obviously this “toy” pistol of the same size and weight could likewise be so used. Where reasonable minds can differ on whether the instrument used is ‘ ‘ dangerous, ’ ’ the question is one of fact for the jury. The jury having viewed the weapon, its determination, under these circumstances, but only under these circumstances, is conclusive.
In reference to the charge of violation of section 288a of the Penal Code, it is also my opinion that the evidence is sufficient to support the judgment of conviction, although this conclusion is clearly contrary to the law announced in People v. Angier, 44 Cal. App. (2d) 417 [112 P. (2d) 659]. The majority opinion attempts to distinguish the Angier case on its facts. Quite significantly the majority opinion is silent as to the law stated in that opinion. If section 288a requires copulation as defined in the Angier case, there is no evidence of such copulation as thus defined in the instant case. While I disagree with the holding and reasoning in the Angier case, I think, in fairness to defendant, it should be noted that the Supreme Court less than a year ago denied a hearing in that case and that the law stated in the majority opinion, and in this dissent, on this issue, is .clearly contrary to the holding in the Angier ease.
From the foregoing it is apparent that it is my view that the evidence is legally sufficient to sustain all three convictions, although I recognize that as to the charge involving the alleged violation of section 288a, this conclusion (as well as the identical conclusion in the majority opinion), is contrary to the holding in the Angier case, supra. The conclusion that the evidence is sufficient, however, does not necessarily mean that the judgments should be affirmed. It is my view that it is the function and duty of an appellate court, after having determined that the evidence is legally sufficient, to then determine two other problems—viz., was error committed, and, if so, was such error prejudicial? As to *37the first of these questions—i. e., was error committed—it is conceded by the attorney general that error was committed. This concession undoubtedly is in accordance with the fact. The prosecuting attorney, while cross-examining the defendant, read from a document in his hand. When the attorney for defendant fell into the trap, and demanded to know what the document was, the prosecuting attorney stated that the document was a statement given by the wife of defendant. When the defendant’s counsel stated that he did not know such a statement existed the prosecuting attorney not only declared that such a statement existed but gratuitously added that in that statement the wife had declared that defendant had come home from work and changed his clothes to those he was wearing when arrested. Although the statement was objected to and assigned as prejudicial misconduct, the court made no ruling on the objection or assignment. The majority opinion holds that such error was not prejudicial because the question of “how” the defendant was dressed was immaterial. While it is true that “how” the defendant was dressed had no relevancy on the issue of identity, inasmuch as the defendant admitted he was present at the scene of the crime, that evidence was introduced for an entirely different purpose. The prosecuting attorney was trying to show that defendant came home from work with an old pair of boots on, changed them and put on rubbers over the boots, and went out and committed these crimes. If this were true, in view of the type of clothing he was wearing when arrested, it would go far in proving that defendant had started out that evening with a deliberate and premeditated criminal purpose. The prosecuting attorney asked all the witnesses produced by him how the defendant was dressed at the time of the crime. These witnesses testified as to the wearing by defendant of boots and rubbers. On direct examination of defendant his counsel also asked questions concerning how defendant was dressed the day and night of the crime. He testified that when he came home from work that day he had on the boots that had been introduced into evidence by the prosecution and which the witnesses had identified as the boots he wore later that night when arrested. He also testified that he worked as a tree topper on the day in question and while doing such work was dressed as he was when arrested. On cross-examination the prosecuting attorney immediately challenged defendant’s testimony in reference to the matter of *38dress. Almost the first question he asked defendant was: “When you came home that day you didn’t have these boots on at all, did you (indicating) ?” Defendant answered: “Oh yes I did.” The testimony continued as follows: “Q. Oh no you didn’t, did you? A. I certainly did. Q. As a matter of fact you had on another pair of boots that were old and rusty looking, laced clear up to the top of the boots, which almost reached your knees, didn’t you? A. No, I did not. Q. When you came home you changed from the old rusty looking boots to these here (indicating), didn’t you? A. No, I did not. Q. You are quite sure about that? A. I am positive.” A few questions on another subject were then asked and then the prosecuting attorney renewed his interrogation concerning the boots, asking: “Q. Now, you are quite certain you didn’t have on when you came home from work that afternoon, an old rusty looking pair of boots?” There then followed the occurrence quoted in the majority opinion culminating in the statement that the wife had told the district attorney that when defendant came home from work he had an old pair of rusty boots on that laced up the front. Immediately thereafter the trial judge interrogated the defendant at length about how he was dressed, sarcastically referring to defendant’s testimony as to how he was dressed and as to what he was doing at that time of night in the park.
A reading of the record demonstrates that what the prosecutor was attempting to show was that defendant had come home from work and changed his clothes for the express purpose of going out and committing some crime. The defendant was vigorously contending that the costume he was wearing when arrested was the same costume worn by him that day at work, and the same type of costume worn by all tree toppers. That was an important issue, because, if defendant’s testimony as to how he was dressed was believed, it supported the balance of his story as to what he was doing that night. If he did come home and change his clothes, and if the costume he was wearing when arrested was not Ms regular work costume, then great weight was given to the prosecution theory that defendant had deliberately started out to rob “petting parties.” The prosecution was unable to prove that defendant had changed his clothes after coming home from work. Under such circumstances, for the prosecuting attorney to “testify” that defendant’s wife had told *39him defendant had changed his clothes, was to attack, improperly, the whole basis of defendant’s defense. It is no answer to say, as does the Majority opinion, that the defendant’s counsel invited the error. While defendant’s counsel demanded to know the nature of the paper the prosecutor was using in his cross-examination, that query was completely answered by the prosecutor’s reply that it was a statement of defendant’s wife. But for the prosecutor to then add what that statement purportedly contained, was clearly error of a most serious nature.
There is still another reason why the admitted error was prejudicial. The jury was called upon to determine whether the prosecutrix and her supporting witnesses were telling the truth, or whether defendant was telling the truth. The prosecutrix and her escort had told a story about riding out to the park late at night with another couple, and getting out of the car with a blanket and sitting down in the bushes to talk. That portion of their story is characterized as “inherently improbable” by appellant. It can at least be said that it is a reasonable argument to make that this portion of their story was open to doubt. The whole ease turned upon the credibility of the respective witnesses. If defendant’s story was believed, he was innocent. He was the only witness in his own behalf. For the prosecutor to tell the jury that, according to defendant’s own wife, defendant was lying about how he was dressed, was to attack defendant’s credibility in a most improper fashion. The obvious reaction would be that if defendant was lying as to that fact, his whole story was false. That was error of a most prejudicial character.
After reading the record I cannot say that the jury would have reached the same conclusions it did had the error not been committed. For that reason article VI, section 4% of the Constitution cannot operate to cure the error. It may be that defendant is guilty. If so, he has committed several crimes of a particularly abhorrent character. But the fact that the prosecuting attorney may have honestly believed defendant guilty, does not excuse the means adopted by him to secure a conviction. The doctrine that the end justifies the means has no application to the trial of one accused of crime. As important as it is to society to see that those guilty of criminal activity should be punished, it is far more important to society, as a whole that the fundamental prin*40ciple that every defendant is entitled to a fair trial should be preserved. The law prescribes the methods to be used in a criminal case. If defendant is guilty, should this case be reversed and remanded for a new trial, then no doubt the prosecution can prove that fact in a proper manner. If it cannot secure a conviction without resort to illegal means, then defendant should not be convicted.
Appellant’s petition for a hearing by the Supreme Court was denied July 24, 1942. Traynor, J., voted for a hearing.