People v. Singh

LENNON, P. J.

The defendants in this ease were convicted of the crime of robbery, and have appealed to this court from the judgment and from an order denying them a new trial.

The alleged error of the trial court in the admission of evidence, and the refusal to give certain requested instructions, are the only points presented and discussed in support of the appeal.

The defendant Hajara Singh was called and testified as a witness in his own behalf. Upon direct examination he testified that he was at the place where the robbery occurred on the day that it was charged to have been committed. Upon cross-examination he was asked if he did not state, in the presence of several deputy sheriffs, on the day that he was arrested and brought into the sheriff’s office that he was not at the place of the robbery on the day of its commission. The defendant failed to give a direct answer to the question. The question was substantially repeated several times, but upon each occasion the defendant to all appearances willfully evaded giving a direct answer. Thereupon the district attorney asked the general question, “Well, did a conversation of that kind occur down there in the jail?” Again the defendant dodged the question, and finally he was asked if he did not, “in the presence of a number of deputy sheriffs, Mr. Thorwaldson and Mr. Bartoff and others,” say in effect that he was not at the scene of the crime at all on the day of its commission. To this question the defendant answered “I did not say anything like

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that.” At this point the defendants rested their case; and the prosecution called Walter S. McSwain, sheriff of Fresno County, who, when sworn as a witness, was asked if the defendant had said when he was arrested, in the presence of the sheriff and a number of deputy sheriffs, that “he was not out to the Truxwa place or out where Kaesar Singh and Inder Singh and Ishar Singh was on Christmas day. ’ ’ To this question counsel for defendants objected, among other things, that no proper foundation had been laid for it. The trial court overruled the objection, and permitted the witness to answer “for the purpose of impeachment and not for any other purpose” that the witness had made the statement indicated in the question.

It is now insisted upon behalf of the defendants that no proper foundation was laid for the impeaching testimony because the impeaching question put to the assailed witness made no reference to any conversation occurring in the presence of Sheriff McSwain, and also because the assailed witness neither affirmed nor denied that he had said the things imputed to him by the impeaching question.