SHINN, J. Defendant was accused by information of the offense of forcible rape, was convicted by the court sitting without a jury, and appeals.
He challenges the sufficiency of the evidence to establish his guilt. While the argument made in support of this contention is impressive, we have concluded that the evidence was not legally insufficient to establish guilt, though we must say that the scale is so evenly balanced that there is nothing to spare in the prosecution’s ease. We have concluded, however, that the judgment must be reversed because the cross-examination of the prosecutrix was restricted in such manner as to impair seriously the right of the defendant to a fair trial. The point necessitates a statement of the evidence upon which the conviction rests.
Prosecutrix is a colored woman, 20 years old; at the time of the alleged offense she was and previously had been employed in the family of a policeman in Hollywood for some four years. She and defendant, a white man aged 32 years, entered a public motor bus about 11 o ’clock one Sunday night at Santa Monica and Western Avenues in Hollywood; eight or ten minutes later they alighted at the corner of Bronson and Franklin Avenues some three blocks from the residence where prosecutrix was employed and lived. According to her testimony, defendant followed her for two or three blocks, when he spoke to her and asked her if she had been working, [264]to which she answered no; he asked her if she was angry with anyone and she said no; defendant grabbed her between the hips and shoulders and she told him to take his hands off of her; that she started fighting with all of her might when defendant was pulling her into a driveway and was trying to pull away from him; that he pulled her into a dark driveway beyond some rocks that were one or two feet high; that she fell to the ground and that defendant pulled up her dress and raped her. She was wearing an undershirt, pants with an elastic band at the top, a slip, a dress and a coat, a “reversible wrap”; that defendant pulled at her pants and “got the hip part down and a leg off by tearing it.” This garment was placed in evidence and shoAved “a tear in the crotch and on one of the legs.” She testified that defendant struck her a good many times with his fist, mostly upon the temple; that she struck defendant in the face and kicked him; that she was fighting with him and trying to get up and while he was lying upon her she took a knife from her pocket, tried to open it but did not succeed and struck defendant in the back with it; that before she fell defendant struck her in the temple; that the blow did not knock her down but that she was dazed; that defendant raised one of her legs and she fell; that she was not able to fight much while she was on the ground but that she “tore up the ground there.” She testified that about one hour elapsed between the commencement of the attack and her running away from defendant, as hereinafter stated. The place where the act took place was within about 60 feet of the place where prosecutrix worked and of three other houses. Prosecutrix did not scream or call for help. She testified that she made muffled noises; that defendant had hold of her coat collar and was pulling it and choking her and that eventually she was too weak to resist any further; that most of the fighting was done before she fell to the ground. After the act had been accomplished defendant arose and became nauseated. Prosecutrix also arose from the ground, reached into defendant’s pocket, took his wallet and ran away with it. Defendant chased her to the house, calling to her on the way; at the house they had a scuffle, defendant endeavoring to regain his wallet, which prosecutrix threw into the yard. They knocked over some milk bottles and her employer, the policeman, was aroused by the commotion, came out of the house, defendant ran down the driveway, the [265]policeman went after him, brought him back and detained him at the house until policemen whom he summoned arrived. Prosecutrix went to her room, did not see the defendant during this interval, but did go into the yard and retrieve the wallet. Later that evening she went to the Hollywood Receiving Hospital, where she received some attention. She was examined by a physician but did not call his attention to any injuries and there were no visible evidences of injury either upon her person or that of defendant. In the meantime she took the officers to the place where the alleged struggle had occurred and showed them the ground, which they examined.
The employer testified to having detained defendant until the officers came; that defendant was somewhat intoxicated, said that prosecutrix wanted to “neck” a little and that she had taken his purse.
A police officer testified that he was one of the arresting officers; that he did not observe any marks or scratches on defendant’s face; that defendant took him to a place where he said the trouble occurred, which was “a kind of cove and white soil, possibly sand, or mixed with white sand,” and he (the officer) made an examination of the place, but did not find any evidence of a struggle; that the prosecutrix was not present when he examined that place but she was there afterward and pointed out the scene of the struggle; that defendant was intoxicated, he was “plenty drunk” but not “good and drunk.”
Another arresting officer testified that defendant was semi-intoxicated; that the prosecutrix took him (the officer) to the place where she said the attack took place; that he examined the place and found footprints on the ground which extended within a radius of one yard but he did not find any evidence of a struggle at all.
Defendant gave to the officers essentially the same account of the occurrence that he gave upon the stand. He testified that he first saw the prosecutrix when he was standing on the corner at Santa Monica and Western Avenues; that he flirted with her, entered the bus when she did, sat behind her on the bus, and started a conversation with her; that he alighted from the bus with her and they walked arm in arm about three blocks; that he then kissed her and she kissed him; that she helped him pull her dress up and he started to have intercourse with her while standing; that [266]tliis was inconvenient for both of them and that she said sh.e knew a better place and took him to the cove where they lay down, and with her consent he took one leg of her pants off, and with her consent had intercourse with her for about 20 minutes; that when they were about through she said he would have to pay her and when he said he would not pay, she got out a knife and he took it from her and threw it away; that he did not choke or strike her at any time and she did not make any outcry; that when he was standing, after the intercourse, he was nauseated and she was standing by his side sympathizing with him and had one arm around him; that she reached into his pocket “awful quick”; that when she started to run away he missed his wallet; that he chased her, caught her at the doorstep and tried to get his wallet; that when they knocked some milk bottles over the employer called out and defendant went away at a brisk walk but was stopped by the employer and taken back to the house; that he told the employer and the other officers what had happened; that he (defendant) had had a few drinks; that the only time he “had a scrap with her” was at-the back door when he was trying to get his purse.
A witness, who saw the defendant when he was released on bail the night of the trouble, testified that defendant’s face was not bruised, swollen or scratched at that time.
It appears from the record to have been.the contention of defendant’s counsel that prosecutrix had applied for and been refused a criminal complaint by a certain deputy district attorney. She was asked upon cross-examination, in effect, if she had not given an account of the facts of the occurrence to this deputy district attorney which differed from the one she had related upon the stand. Defendant’s counsel in that connection announced his purpose to be to prove contradictory statements by the prosecutrix. An objection by the district attorney on the ground that the testimony would be immaterial and not proper impeachment was sustained. This, we think, was error of the most grievous sort. The trial court was confronted with the grave and difficult duty of judging of the credibility of the prosecuting witness. The truthfulness of her statements was disputed by the sworn testimony of the defendant and by much circumstantial evidence. No effort should have been spared in subjecting her testimony to all of the tests which are sanctioned by law and the universal practice of our courts. The [267]right of cross-examination is implicit in the constitutional right of the accused to be confronted by the witnesses against him. As said in People v. Flores, (1936) 15 Cal.App.2d 385 [59 P.2d 517], at 401: “A full cross-examination is not a matter of privilege; it is a matter of ‘absolute right’.” Concerning this right, Justice Houser said in People v. Ferdinand, (1924) 194 Cal. 555, at 562 [229 P. 341] : “It is a most salutary rule which permits a wide latitude in cross-examination and one which is justly entitled to and which receives universal recognition. Its use and its purpose are so well known that to dilate thereon would add nothing to the superabundance of expressions relating thereto which are to be found in adjudications by the courts and in opinions by renowned text writers as well.”
It can be asserted with confidence that in the entire field of cross-examination there will be found no more compelling occasion for the extension of the right to its broadest reasonable limits than is found in cases where the fate of those accused of sex crimes rests upon the uncorroborated testimony of their accusers. In cases of this nature it has been said that the accused is at such a disadvantage that “he should be given the full measure of every legal right in an endeavor to maintain his innocence.” (People v. Baldwin, (1897) 117 Cal. 244, 249 [49 P. 186].)
The present case is one in which the trial judge should have welcomed every opportunity to hear evidence which might have been of assistance to him in judging of the weight which he should give to the testimony of the prosecuting witness. In the early case of People v. Williams, (1861) 18 Cal. 187, at 191, in declaring it to be prejudicial error to restrict the cross-examination of an accomplice, the court said: ‘ ‘ His connection with the parties, his conduct, his leanings, his prejudices, his recollection, his means of knowledge, his disposition to tell the truth, his motives to commit perjury, his whole conduct, in short, in relation to the facts he professes to reveal and the parties, should be suffered to be fully exposed to the jury. To do this is the general office of a cross-examination, and this is more especially important in respect to such a witness. Such an examination could do no possible harm if the witness could stand the ordeal, and it might do a great deal of good if he could not.” Surely this statement has equal force when applied to the testimony of the prose[268]eutrix in. the instant ease. It would seem to admit of no doubt that a restriction upon the right of cross-examination would seriously prejudice the rights of an accused in a case of this sort. But the importance to defendant’s case of a full cross-examination will be better appreciated from a consideration of some of the strange aspects of the tale related by the prosecutrix.
She testified that the encounter which culminated in her being sexually known by the defendant consumed an hour. How much of this time was taken up with a preliminary struggle cannot be ascertained or even approximated from her testimony. All of this time she was within about 60 fee* of her home and other occupied residences. She made no outcry, although undoubtedly help was close at hand. Defendant was not armed, he made no threats, he committed no acts of violence upon her person so as to leave any visible evidence of injury; her clothes, except for her pants, were not torn; for a period of an hour she struggled with defendant, tearing up the ground, and yet there were to be found in the sand no more than footprints and no evidence of a struggle. She stated that she was dazed by a blow struck by defendant before she fell to the ground, but this alleged blow did not cause her to fall and did not cause any swelling or leave other visible mark at the point where it was alleged to have been struck. A careful reading of the testimony fails to disclose anything suggesting that prosecutrix was in fear of bodily injury. Her only explanation of her- failure to make outcry was that defendant was holding her collar tight, but from the many other acts of defendant, which were related in detail, it appears that it would have been impossible for him to have prevented an outcry by prosecutrix in any such fashion. She had presence of mind enough, according to her story, to take a knife from her pocket and strike the defendant with it, and she had presence of mind enough to abstract the defendant’s wallet from his pocket while he was suffering from nausea. Her explanation of this action was that she wished something by which to identify the defendant. Strangely enough, the identifying article happened to be defendant’s wallet and she ran away with his money as the alleged “victim” did in People v. Fremont, (1937) 22 Cal.App.2d 292 [70 P.2d 1005], The testimony of defendant that he took the knife away from the prosecutrix and threw it away during an argument following the act of intercourse [269]was not denied. We note also that it does not appear in the evidence whether prosecutrix made complaint to her employer before the other police officers arrived. Somewhat challenging to the imagination also is her testimony that although her pahts were pulled down from her hips and removed from one of her legs, she did not pull them up but ran home with them in that condition. In view of the predicament in which she found herself after she had reached home and her employer had been aroused and called the police, she would have been obliged to accuse defendant as she did in order to furnish some justification for her own conduct in running away with his money. It can scarcely be doubted that the story of the defendant, sordid as it was, had support in every particular in which the circumstances tended to shed light upon what had occurred. Had it been shown that the prosecutrix had made statements to the deputy district attorney, to whom admittedly she related her story, that varied in any material respect from the story she told upon the stand, that impeachment, added to the impeachment furnished by the admitted facts of the case, would surely have been sufficient to resolve any doubts as to defendant’s guilt in his favor.
The questioning of the witness on cross-examination which was foreclosed by the court’s ruling was manifestly of a preliminary nature, but the ruling of the court was as broad as the subject to which the questions related and we think might well have been considered by defendant’s counsel as foreclosing any further inquiry along the same line. As said in Theatrical Enterprises, Inc. v. Ferron, (1932) 119 Cal. App. 671, at 677 [7 P.2d 351], “Orderly procedure requires that counsel submit to the rulings of the court, and it cannot be commended as good practice that an attorney battle his way into durance, to the end that error be demonstrated.” We cannot know, of course, what further inquiry would have disclosed, but we freely assume that counsel were acting in good faith and expected, if permitted to do so, to show statements contradictory of those given at the trial. If he had been allowed to proceed and had succeeded, such contradictory statements might have influenced the decision of the entire case. Nothing which occurred at the trial would have been more helpful to the court in arriving at the truth than to know whether the prosecutrix had told the identical story [270]each time she had related it or whether she had varied it or added to it after her first narration, and nothing could have been more vital to defendant’s case than to be able to show that she had made conflicting statements.
It seems to us that defendant’s counsel should have had the active cooperation of the court in any good faith endeavors to test the credibility of the prosecuting witness. The field into which the cross-examination was attempted to be directed was a proper one. Of a similar situation, where an objection had been sustained to questions respecting alleged contradictory statements on the ground that no foundation had been laid, the court said in People v. Jones, (1911) 160 Cal. 358, at 365 [117 P. 176] : “Frequently, they are designed to test the recollection of the witness, and, frequently, as in the instance before us, the question is proper, though ultimately and according to the answer which may be made it will or will not be followed by a strictly impeaching question. Thus, it was proper to - ask the witness if he had so testified. His answer might have been that he did not, when an impeaching question would properly follow. His answer might have been that he did so testify with explanation of the variance between his answers, in which ease no impeaching question would be necessary, and it is an unwarranted curtailment of legitimate cross-examination to exclude such questions, as was here done, upon the ground that they are necessarily impeaching questions and the proper foundation for them has not been laid. (People v. Hart, 153 Cal. 261 [94 P. 1042].)”
There is another matter disclosed by the record which we cannot allow to pass unnoticed. Defendant’s motion for new trial and his application for probation came on for hearing at the same time. Both were denied. In connection with the application for probation the following took place:
“Mb. Tablet : Well, I have read the report this morning. The only thing I would like to say is that I would like to ask your Honor to follow the report and extend as much leniency--
‘‘ The Coubt : I am going to say right here that I am not going to follow this report because this particular probation officer, I have said it before and I will say it again, I have lost entire confidence in him in this type of case.' He spends 90 per cent of his time in his reports trying to show that the Court was wrong or that the jury was wrong.
[271]“Mb. Tablet : That places the defendant in a bad position.
“The Court: It does. It places the probation officer in a bad position too. This is not the first time. I have had him on other occasions where he spent most of his report, particularly on charges of this kind, of statutory rape, in excusing and defending the defendant and in trying to make out that the Court or the jury made a mistake, or in some instances that the man made a mistake in pleading guilty. I don’t know what the complex is there but that is my observation. . . . He hasn’t had the effrontery to come out and say he doesn’t believe the defendant is not guilty [sic]; but inferentially he does.”
The foregoing excerpts from the record portray a condition existing in one of the criminal departments of the court in Los Angeles County which calls for the immediate attention of those who are in position to correct it. The inference is plain that a defendant convicted of a sex crime by the judge presiding in said department would be better off if the deputy probation officer whose recommendations arouse the ire of the judge should recommend against probation instead of in favor of it. It is unthinkable that a convicted man should be sent to the penitentiary because of the ill will of a judge toward a probation officer, and we might add that if probation is ever proper in a case of forcible rape, and the law permits of probation in such eases, it would be somewhat difficult, we think, to find a milder case of forcible rape than the one before us, if, indeed, it was rape at all. And we might add that defendant was shown to be an unmarried man, of good repute and employed as an artisan in one position for 10 years.
The judgment is reversed.
I
Schauer, P. J., concurred.