People v. Leavitt

THOMPSON (IRA F.), J.

The defendant Curryer, together with Ralph A. Leavitt, was charged by an information filed by the district attorney of Los Angeles County with the crime of burglary, Curryer also being charged with a prior conviction. Curryer admitted the prior. Separate trials were granted and he was convicted. This is an appeal from the judgment and the order denying his motion for a new trial.

As near as we are able to determine from the briefs of appellant it is contended that the judgment should be reversed on the following grounds:

1. The court erred in compelling a witness to answer certain questions over the protest of the witness that to do so might incriminate her.

2. The verdict is not supported by the evidence, and,

3. The court erred in not rejecting the admission of appellant made to certain officers and in refusing to exclude the jury while appellant’s counsel was endeavoring to demonstrate that the statements were not freely and voluntarily made.

Turning to the first question of whether the court committed error in compelling the witness Novella Tennis to answer certain questions over her protest that the answers might tend to incriminate her, we find no merit. Assuming a fact, which we do not find borne out by the record, to wit;

[396]

That the trial judge encroached upon the constitutional rights of the witness how can it make any difference to the appellant! The privilege of not testifying where the answers may have a tendency to incriminate is one that is personal to the witness, and in which the defendant has no voice. If the witness had testified fully without complaint, the appellant could not be heard to complain.

It may be argued under this claim of error that the district attorney was permitted to cross-examine his own witness. What he did when it became apparent that the witness was inclined not to answer even the preliminary questions was to confront her with the transcript of the preliminary hearing and ask her if reading certain designated portions refreshed her recollection. No objection was interposed on the ground that the prosecutor was attempting to cross-examine or impeach his own witness. Twice an objection based upon the general ground that the answer called for was incompetent, irrelevant and immaterial was lodged. Each time it was followed by argument which indicated that defense counsel was seeking to encourage the witness to decline to answer questions on the ground that to do so might incriminate her and to shut out the testimony in this manner. It is a familiar rule of law that error may not be predicated upon the improper admission of testimony unless the real ground of its inadmissibility is called to the attention of the court by the proper objection.