People v. Webster

Fitzgerald, C.

— The defendant was convicted, in the court below, of assault, upon an information charging him with an assault with a deadly weapon.

It appears from the record that several exceptions were taken by the defendant to the rulings of the court; hut only two of them are urged here, and they are upon questions involving the admission and rejection of evidence.

At the trial, one J. N. Marsh, who is the subject of the injury complained of in the information, was called and sworn as a witness for the prosecution. On cross-examination the question was asked him, if he, “witness, had not, since the arrest of defendant upon this charge, had defendant arrested and tried in the justice’s court on a charge of disturbing the peace, and if the jury did not acquit him of the charge." This question was answered by the witness in the affirmative, without objection from the prosecution. On redirect examination, be was asked by the district attorney to “ state the facts of that case." This he was permitted to do by the court, against the defendant’s objection, he, the witness, stating, among other things, in this connection, “that the defendant had tried to ride over him with his horse, while he was peaceably walking along the public highway,” on which occasion defendant called him names, not necessary or fit to be repeated here.

While the question asked on cross-examination, and affirmatively answered without objection, was competent for the purpose of showing the relations between the parties, and the state of feeling of the witness towards the defendant, yet under no rule or principle with which we are familiar could such evidence be justified as that which was admitted, against objection, on the redirect examination of the witness Marsh, and through which was injected into the trial of this case the facts involved in and brought out at the trial of the other case, the probable effect, if not the purpose of which was to put in issue his character, and thereby to excite in the mind of the jury feelings of prejudice against the defendant, (People v. Markham, 64 Cal. 163; 49 Am. Rep. 700; People v. Dye, 75 Cal. 108; People v. Taylor, 36 Cal. 255.)

The only other ruling of the court which we propose to notice, and to which exception was taken, was upon a question of evidence involving the general reputation of the prosecuting witness Marsh for " honesty, truth, and veracity,” and which was offered for the purpose uf impeachment.

It appears from the bill of exceptions that the witness Tallant, who was called for the defense, was asked “whether he knew the general reputation of the prosecuting witness Marsh, in the community where he lived, for ‘ honesty, truth, and veracity.’ The witness answered ‘ that he only knew from what he had heard people generally say of him.’ Here the court interposed, and ‘ told the witness he could only testify to what he knew of his reputation of his own personal knowledge.’”

This ruling of the court, reversing, as it did, an old and very familiar common-law rule, of which the plain provisions of section 2051 of the Penal Code are but declaratory, was excepted to at the time, and is assigned as error.

The question as propounded was perfectly competent to show such general reputation, and while technically it should have been answered directly, yes or no, still the response was such in effect, and in addition thereto clearly showed the competency of the evidence for the purpose for which it was sought to be introduced. (People v. Methvin, 53 Cal. 68.)

For these prejudical errors, we advise that the judgment and order appealed from be reversed, and the cause remanded for a new trial.

Foote, 0., and Belcher, C., concurred.

The Court. — For the reasons given in the foregoing opinion, the judgment and order appealed from are reversed, and the cause remanded for a new trial.