People v. Hurst

BARNARD, P. J.

The appellant Hurst and one Paul Rogers were jointly charged with the infamous crime against nature, in violation of section 286 of the Penal Code. The appellant was also charged with a prior conviction in that he had been convicted in Arizona of the crime of unnatural sex acts, a felony, for which he had served a term in prison. The appellant admitted the prior conviction and both defendants pleaded not guilty on the main charge. A jury found each defendant not guilty of the infamous crime against nature, but found each guilty of an attempt to commit that crime, a lesser and included offense. Hurst has appealed from the judgment sentencing him to prison and from an order denying his motion for a new trial.

The incident in question occurred near midnight on August 6, 1956, in a cell in the San Diego City jail then occupied by Hurst and Rogers. The evidence, including the testimony of an eyewitness, was amply sufficient to sustain the verdict and

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no contention is made to the contrary. The appellant first contends that the deputy district attorney was guilty of prejudicial misconduct in his opening statement to the jury, and in connection with the cross-examination of Rogers. It is argued that in his opening statement the district attorney stated that the evidence would show that a trusty in the jail heard one of the defendants say to the other, “Now, we can have sexual intercourse all night”; that the district attorney was unable to introduce any testimony that such a statement was made; that after a motion to strike the testimony o£ the trusty in this connection had been made and granted the district attorney persisted in asking the defendant Rogers, on cross-examination, whether he had heard such a statement; that at the time he asked the question the district attorney knew that he had no proof to offer because such proof had been rejected by the court; and that this conduct could only be interpreted as misconduct, since it discloses a purpose to keep before the jury the assumption of damaging facts not proven.

The trusty in question first testified that he looked in Cell 12, where the defendants were confined, and saw them kissing each other. He was then asked, “What did you do?” He replied, “I turned to leave and I heard someone say from that general direction that, ‘We can have sexual intercourse all night.’ ” Counsel for appellant made the objection, “He has to identify.” In response to other questions the witness then testified that he had turned around on his way to get another trusty; that the statement came from the general direction of Cell 12; that Cell 12 was the end cell and the four cells next to it were not occupied; and that the statement came from the lower block of cells and sounded like it was nearby. When asked if it could come from any cell except Cell 12, he replied: “Possibly. But the nearest one to them would be Cell 7 or the guys up above.” On cross-examination he admitted that he was not positive that the statement came from Cell 12, but that it was his opinion that it came from that general direction. He was then finally led to say, “I don’t have any opinion.” Counsel for the appellant then moved that all of this witness’ “remarks as to the conversation he heard” be stricken from the record. This motion was granted and the court instructed the jury to “disregard the statement that he states that he heard.”