People v. Mullen

DOOLING, J.

On this appeal the appellant is represented by counsel appointed by the court at his request. The appeal is from a judgment of conviction on two felony counts and from an order denying a new trial. Appellant was convicted of violating sections 4501 and 4502 Penal Code consisting of a malicious assault with a deadly weapon and possession of the deadly weapon, a knife, while a prisoner of the state undergoing a sentence of less than life. The ease was tried before a jury after a plea of not guilty. The alleged errors sought to be corrected here involve the introduction of certain evidence and alleged misconduct of the prosecuting attorney. Appellant does not complain of the sufficiency of the evidence.

[342]

The first two assignments of error involve testimony advanced on the part of the prosecution which tended to prove homosexual tendencies between appellant and a fellow prisoner. This is claimed to be immaterial and also to be prejudicial as violating the rule preventing* introduction of evidence of other unrelated crimes. It was the prosecution’s theory throughout the case that defendant and his coprisoner, Caskey, were friendly, or at least that defendant desired such a' friendship. This friendship of defendant for Caskey reached the point of unrequited love. The victim of defendant’s assault, Hunsaker, was a friend of Caskey’s and was obstructing the fulfillment of defendant’s desires. This caused enmity in defendant toward Hunsaker, the motive for the stabbing being Hunsaker’s interference with defendant’s “love” for Caskey. The prosecution introduced this theory in the opening statement. The particular testimony objected to came from Caskey. He stated that he had met defendant in the Sacramento jail and again at San Quentin. He later met Hunsaker and became friendly with him. A number of conversations between Caskey and defendant were related wherein defendant had made homosexual advances toward Caskey and asked that the latter stop “running around” with Hunsaker, that three people were too many. Defendant also had told Caskey there was more than one way to end a friendship.

On the immateriality issue appellant’s argument is that although motive may be a proper subject of proof in some cases, the evidence here involved does not, in fact, show a motive, but what appellant terms a “motive for the motive.” Appellant conceives that the only motive in a situation such as this is antagonism or enmity existing between defendant and his victim. Therefore, it is claimed, the reason for the real motive, or its basis, the secondary emotion, cannot be shown. It would have been sufficient for the prosecution to show merely the desire on the part of defendant to break up the friendship existing between Caskey and Hunsaker. If this is sufficient then going farther is prejudicial. Appellant cites a ease,