People v. Brooksher

California Court of Appeal Jul 6, 1955 No. Crim. 3086Published

Before: Nourse, Dooling

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Holding. The court affirmed the convictions of the appellants, holding that they waived their right to challenge the admission of evidence by failing to object at trial and that the trial court's instructions cured any potential prejudice from the prosecutor's improper comments.

Issues

Whether the trial court erred in admitting testimony derived from a microphone installation when no objection was raised at trial.
Whether the prosecutor's closing arguments constituted reversible misconduct.
Whether the prosecutor's comment on the defendants' failure to testify was cured by the trial court's instructions.

Disposition. affirmed

Quotations verified verbatim against the opinion

“In any event, having failed to object, they cannot claim error for the first time on appeal.”

“The statement obviously was error and the trial court immediately instructed the jury that such silence was not a confession.”

“The defendants were fairly tried and convicted and no other verdict could have followed the uncontroverted evidence of their guilt.”

Opinion

134 Cal.App.2d 266 (1955) THE PEOPLE, Respondent,

FRED BROOKSHER et al., Defendants; MARY HUMPHREY et al., Appellants.

Crim. No. 3086. California Court of Appeals. First Dist., Div. Two.

July 6, 1955. Mark C. Cali and Henry Mariani for Appellants.

Edmund G. Brown, Attorney General, Clarence A. Linn, Chief Assistant Attorney General, and Raymond M. Momboisse, Deputy Attorney General, N. J. Menard, District Attorney (Santa Clara), and John Schatz, Jr., Deputy District Attorney, for Respondent.

NOURSE, P. J.

The five defendants were charged in one information with pandering (Pen. Code, 266i, added by Stats. 1953, ch. 32, 4), and conspiring to contribute to the delinquency of a girl of 14 years. Defendants Duarte and Brooksher were both charged with statutory rape. All defendants were tried jointly to a jury. Separate verdicts were returned. Brooksher pleaded guilty on the charge of rape and on the charge of pandering not guilty. He was found guilty on the conspiracy charge. Duarte was found guilty of rape. He and the remaining defendants were all found guilty of both pandering and contributing to the minor's delinquency. (Welf. & Inst. Code, 702.) Defendants Humphrey and Ferreira alone have appealed.

Defendant Humphrey, referred to in the testimony as "Babe," and Ferreira were living together in adultery while she was either practicing prostitution or engaged in procuring for the benefit of others. They were introduced to the prosecutrix by Brooksher who gave "Babe" $25 with which she took the prosecutrix to an out of town store and purchased for her a complete outfit of underclothes and a dress. On this occasion "Babe" gave the young girl pertinent advice [268] as to how she could best carry on the trade as a prostitute. The testimony of the prosecutrix as to the interest and the activities of these two appealing defendants was clear and directly to the issues. Neither one of these defendants took the stand as witnesses, and neither one offered any competent evidence in their defense. The case, therefore, as it comes to us, is one where the verdict is supported by competent substantial evidence.

People v. Brooksher

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Opinion

NOURSE, P. J.

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DOOLING, J.

Opinion — Nourse

Dissent — Dooling

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