People v. Hughes

KAUFMAN, P. J.

The only questions presented by this appeal concern alleged errors in the admission of certain evidence. Appellant was charged by indictment with two counts of incest, in violation of section 285 of the Penal Code. A jury trial resulted in a verdict of guilty on both counts. As no contentions are raised relating to the sufficiency of the evidence, it is not necessary to narrate the facts in detail.

The first contention on appeal is that the trial court erred in admitting People’s Exhibits 3 and 4, containing certain statements made by the appellant in the face of an accusation by his daughter, the prosecuting witness. Appellant, relying on

People

v.

Simmons,

28 Cal.2d 699 [172 P.2d 18], contends that his responses were inadmissible as they were complete

[600]

denials of the incestuous conduct charged. There is no merit to this argument. Accusatory statements and the responses thereto are admissible under a well recognized exception to the hearsay rule. As stated in

People

v.

Davis,

43 Cal.2d 661 [276 P.2d 801] (at p. 670): “If the accused person expressly admits the truth of the accusatory statement, both the statement and answer may be admitted. If the accused person expressly denies the accusatory statement, there is no admission. If the accused makes an evasive or equivocal reply which is not directly responsive to the accusatory statement, or remains silent, it has been held that under certain circumstances both the accusatory statement and the response are admissible.” Each case must be determined on its own facts

(People

v.

Davis,

48 Cal.2d 241 [309 P.2d 1]). In the instant case, shortly after his arrest, appellant’s daughter, in the presence of the district attorney, made certain accusations. When the district attorney asked her to tell him what happened, appellant interrupted the conversation and said: “Doris, don’t tell him anything.” Appellant’s daughter ignored this admonition and related several incidents of incestuous conduct, including the evidence forming the basis of one of the counts of the indictment. When the appellant was asked what he had to say about this, he said: “I have nothing to say. I don’t know what’s going on.” He repeated this answer to several subsequent questions.