People v. Cordero

PLUMMER, J.

The defendant was prosecuted for the offense denounced and made punishable by the provisions of section 288 of the Penal Code. Following the defendant’s conviction, a motion for a new trial being denied, the defendant appeals. In prosecuting this appeal, no question is tendered to the court as to the sufficiency of the evidence, if believed by the jury, to support the verdict. We have read all the testimony set forth in the transcript, and are satisfied therefrom that no question could be raised as to its sufficiency, but the nature of the testimony is such as to preclude its being set forth in this opinion.

The points relied upon for reversal relate simply to remarks made by the district attorney during the course of the examination of witnesses and in his closing address to the jury. Appellant also sets forth in his brief that certain remarks of the court were prejudicial, but as an examination of the transcript discloses no objections to the remarks made at the time, and no request made by counsel that the court instruct the jury to disregard such remarks, it is not necessary for us to set forth the remarks of the court, or to make any further comment thereon.

The testimony relied upon by the prosecution being an action based, as we have said, on section 288 of the Penal Code, was necessarily, in large part, that of the testimony of small boys. It appears that the attorney for the defendant interviewed one of the boys involved in the offense alleged to have been committed by the defendant and obtained from him some statements as to why he was testifying against the defendant, and that the boy, under the examination conducted by the attorney for the defendant at the interview referred to, made statements different, or, at least, alleged to

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be different, from the testimony he had given on the witness-stand. It also appears that the defense in this case was based upon the claim that the boys alleged to have been tampered with by the defendant had framed the ease against the defendant out of spite, owing to some differences relating to money matters. It was during the cross-examination of the witnesses who had been interviewed by the attorney for the defendant prior to the trial that the remarks of the district attorney, hereinafter set forth, were made, which appear in the transcript as follows: “Q. And didn’t you tell me on that occasion that the story wasn’t true, that you boys got together and framed it by reason of the fact that you were sore at Charlie Cordero? A. Teh. Q. That is what you told me yesterday? A. Teh. Q. Now, is that the truth, Mario? Did you tell me and your father the truth? Was what you told us yesterday true, Mario? Do you understand that? Mr. Henderson: Well, let him alone. See if he understands it. We will see if you are tampering with witnesses or what. Mr. Reynolds: May it please the Court, I assign that remark upon Mr. Henderson’s part as prejudicial error to this defendant. Mr. Henderson: We will find out whether it is prejudicial error. Mr. Reynolds: All right, and I assign this remark—■ Mr. Henderson (interposing) : By the .time we get through with this witness, Mr. Reynolds, we will find out.”