People v. Chiappelone

California Court of Appeal Mar 29, 1928 No. Docket No. 1438.Published

Before: Sturtevant

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Holding. The court affirmed the defendant's conviction for rape, holding that the defendant failed to preserve objections regarding hearsay and the prosecution's failure to elect a specific act, and that the jury's use of the word "determine" instead of "recommend" regarding sentencing was harmless error.

Issues

Whether the admission of testimony regarding a stale complaint constituted reversible error in the absence of a motion to strike.
Whether the trial court erred in sustaining objections to evidence regarding collateral matters.
Whether the prosecution was required to elect a specific act when evidence of multiple similar acts was introduced.
Whether the jury's use of the word "determine" instead of "recommend" in the verdict rendered it void.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Under these circumstances, when it transpired that the complaint was stale, it was useless at that time to interpose an objection, but the proper attack was a motion to strike out.”

“At no time did the defense call upon the prosecution to make an election and at no time did the trial court rule or have a chance to rule on the contention now made.”

STURTEVANT, J.

The district attorney filed an information against the defendant charging him with having committed the crime of rape “on or about the 25th day of October, 1926,” on, the person of a little girl of the age of eleven. The defendant appeared and pleaded not guilty. The trial was had in the lower court before the court sitting with a jury. The jury returned a verdict which was against the defendant. He made a motion for a new trial. The motion was denied. From the judgment entered on the verdict and from the order denying his motion for a new trial the defendant has appealed.

Some evidence was admitted tending to prove that in July, 1927, the prosecutrix made a complaint to one of the police officers, Mrs. Sullivan, regarding the alleged assault of the defendant. He asserts the complaint was made at a date, which was too remote and that the evidence was not admissible.

(People

Lambert,

120 Cal. 170, 174 [52 Pac. 307].) When the prosecutrix was on the stand and at a time when she had told what the defendant had done she was asked: “Q. Did you tell Mrs. Sullivan about what you were telling us here now? A. Yes I did.” She was then asked four other questions which she answered, filing the time of her complaint made to Mrs. Sullivan. Then the attorney for the defense interposed an objection that the complaint was not a fresh complaint and her statements to Mrs. Sullivan were hearsay. The objection was overruled. At the time the defendant interposed his objection the question regarding statements made by the witness had been asked and answered, four other questions as

[474]

to dates had been asked and answered, and there was no question unanswered on the subject matter of the objection. After the court ruled there was no motion to strike out and the record was so left. The question as propounded did not fix a date. Under these circumstances, when it transpired that the complaint was stale, it was useless at that time to interpose an objection, but the proper attack was a motion to strike out. In the absence of that motion the defendant had made no record on which he could predicate error.

People v. Chiappelone

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STURTEVANT, J.

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