People v. Valencia

SHAW, J.

Defendant was convicted of the crime of robbery. He appeals from the judgment and an order denying his motion for a new trial.

■ 1. Complaint is made that C. J. Elliott, a witness called by the prosecution in rebuttal, was, over defendant’s objection, permitted to give testimony, a part of which was in rebuttal of no evidence adduced on behalf of defendant, but which tended to corroborate evidence in chief offered by the people. “The fact that it was permitted to be given in rebuttal constituted in itself no ground for complaint. A court is warranted in departing from the order o'f proof prescribed by section 1093 of the Penal Code under proper circumstances. Whether it shall permit such departure is a matter committed to its sound discretion, and its action in that regard is not ground upon which error may be predicated, unless the discretion appears to have been grossly abused, and this abuse must affirmatively appear.”

(People

v.

Willard,

150 Cal. 543, 550, [89 Pac. 124].) The rule contained in section 1093, prescribing the order in which evidence shall be received, is not mandatory, but may be departed from in the sound- dis

[633]

cretion of the court. (Pen. Code, sec. 1094;

People

v.

Compton,

123 Cal. 403, [56 Pac. 44].) The contention that defendant was deprived of the right to introduce evidence in contradiction of new matter brought out by Elliott’s testimony, is wholly without merit, since, in the absence of such tender of evidence, no right was denied him. Had he made such tender, no doubt the court, as it was empowered to do

(People

v.

Christensen,

85 Cal. 568, 570, [24 Pac. 888]), would have permitted him to reply to such alleged new matter.