People v. Eckman

McFarland, J. The defendant was convicted of burglary in the second degree, and appeals from an order denying him a new trial, and from the judgment rendered in the case.

1. Appellant contends for a new trial for error in refusing to strike out certain testimony of the witness for the prosecution, McLeod, who was the sheriff of the county.

The witness was asked if he had heard the defendant [583]make an.y statements in. reference to the burglary, and if so, were these statements- made voluntarily. He answered that he had, and that they were made voluntarily. Thereupon defendant’s- attorney “requested the privilege of asking the witness preliminary questions to see if the statement made by the defendant to the witness was voluntary; and the court granted the request.” The preliminary question having been asked, the witness replied: “I told him probably, if he was guilty, and pleaded guilty, he would probably get a shorter sentence. Then he told me he wanted to see the district attorney. I went down and brought him up into the office. Mr. Eckman came into the office, and made the statement that he would plead guilty voluntarily.” Defendant’s attorney then said: “I ask that that be stricken out,—that he said he would plead guilty.” The court said: “I deny the motion”; and the attorney for defendant said: “We except.” This is all the record shows upon the subject.

Technically, the testimony was not before the jury at all. It was addressed to the court upon the preliminary examination. In the next place, a party moving to strike out the answer of a witness must specify his objection to it in like manner as he is required to specify the grounds of his objections to a question. (Temple v. Frank, 28 Cal. 519; Sill v. Reese, 47 Cal. 341.) And no grounds of objection were stated here at all, not even the hackneyed one of “irrelevant and incompetent.” But if such objections to the point here sought to be made ought to be disregarded in a criminal case, the court did not abuse its discretion or commit a fatal error in denying the motion to strike out. The sheriff had not charged defendant with being guilty; had not claimed to have evidence against him; had not threatened him in any way. He did not tell him, as was told the defendants in People v. Johnson, 41 Cal. 452, “there was no use in fooling about it; they may as well confess, as there was evidence enough to convict them.” Moreover, the statement [584]