People v. Fong Sing , 38 Cal. App. 253 ( 1918 )

In a characteristically able argument, the senior counsel for the defendant urges a rehearing of this cause. There is nothing we can add to what has been said in the former opinion filed herein, except to express hearty concurrence in the general animadversion of the learned lawyer upon the practice too often resorted to in criminal cases by public prosecutors of lugging into their cases in argument matters having vital bearing upon the case which have not been brought in by evidence and which are calculated to deprive an accused of that fair and impartial trial which is guaranteed to him by the constitution and the statute laws of the state. A public prosecutor should be equally as solicitous of the protection of the rights of a citizen or other person on trial for his life or his liberty as the judge who presides at the trial, and it is obviously an egregiously erroneous notion if that public officer conceives it to be his duty to convict every person against whom a crime has been charged, regardless of whether he is or is not guilty or of whether the proof he is able to produce against one so accused is or is not sufficient to justify his conviction. And it is equally a mistake for such an officer to suppose that it is proper for him to present to the jury anything but strictly legal evidence in support of the charge, or that it is within the sphere of legitimate argument to prejudice the standing of the accused in the minds of those who are to determine an issue so serious to him by insinuating in the course of his address that some fact bearing strongly against the accused which has not been proved by proper evidence in reality exists. This court has on a number of previous occasions in a number of cases, notably in People v. Hail, 25 Cal.App. 342, [143 P. 803], condemned such practice. In the present case, however, as is stated in the former opinion, there is no such record as justifies us in reviewing the point that the special prosecutor was guilty of misconduct in referring to a matter in his argument which, it is claimed, was not brought into the case through the evidence. As explained in the former opinion, all that the record shows is that a controversy arose during the course of the prosecutor's argument as to whether it was conceded by counsel representing the people that the court reporter had made a mistake in reporting that the defendant had testified that he shook hands with the witness Love at the lumber-yard, counsel for the defendant claiming that such concession had been made and that the mistake so made by the reporter had been corrected before the argument of the case was begun. Nowhere else in the record is it made to appear that a correction of the defendant's testimony in the particular referred to was made or that there was any suggestion by counsel that the reporter had made a mistake in any respect or particular in reporting his testimony. The prosecutor, when interrupted, did not admit that any such mistake had been conceded or that a correction of any such mistake had been made. He simply replied to the interruption: "If you didn't like the record, why didn't you correct it?" from which observation, and from the fact that he did not admit that a mistake in defendant's testimony had been conceded, or that any such mistake had been corrected, we felt justified in declaring, as we did declare in the former opinion, but which declaration counsel say we were not warranted by the record in making, that the special prosecutor "in effect insisted that the defendant did testify that Suey shook hands with Love, and that the record disclosed that he so testified," etc.

As above stated in the outset hereof, the learned attorney, as always he does, makes a forceful plea for a rehearing, but we do not thus feel persuaded that the conclusion we arrived at upon each of the points urged for a reversal, and from which conclusion necessarily followed the final result of the consideration of the record by this court, is erroneous.

The petition is denied.

Chipman, P. J., and Burnett, J., concurred.

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 November 21, 1918.