People v. Nonella

Garoutte, J. Defendant was convicted of the crime of an assault with intent to commit murder, and appealed from the judgment and order denying his motion for a new trial.

The motion for a new trial should have been granted by reason of error committed by the court in admitting improper evidence before the jury. Mrs. Nonella, wife of the defendant, was an eye witness to the affray, and testified in behalf of her husband. Upon cross-examination she was asked the following questions, which were answered in the negative: —

“Didn’t you tell Mrs. Bassi the night of the 22d of February, when no one was present but you and Mrs. Bassi, and in the garden near your house, that your husband intended to shoot him some weeks before that?”

“Didn’t you tell Mrs. Bassi, at the same time and place, when [334]no one was present but you and Mrs. Bassi, that you didn’t want to go out and speak to Firanzi, but your husband made you do it?”

Objections were made to these questions upon various grounds, which were overruled, the district attorney stating that his only object in asking them was for the purpose of laying a foundation to impeach the witness. Owing to other matters which will hereafter receive our attention, we do not find it necessary to review the rulings of the court regarding the admissibility of this evidence, especially in view of the fact that the answers were in the negative, and consequently no harm could have resulted to defendant thereby.

In rebuttal the district attorney, for the purposes of impeachment, placed the witness, Mrs. Bassi, upon the stand, and she was asked: “ What did she tell you about the shooting? Leave out all that outside matter.” This queslion was objected to upon the ground that it was “irrelevant and incompetent; that no foundation had been laid for the impeachment of Mrs. Nonella; and that no declaration made by Mrs. Nonella to her about the shooting, or any fact connected with the shooting, is binding upon the defendant”; but the objections were overruled.

It will be noticed that the question by the district attorney, “ What did she tell you about the shooting?” (referring to what defendant’s wife had told her) was hearsay evidence as to the res gestee of the offense charged, and coming from the wife was well calculated to weigh heavily against the cause of the defendant. Being hearsay evidence, it could only be admitted for the single purpose of impeaching the testimony of Mrs. Nonella, by showing that her previous statements as to the circumstances of the affray were inconsistent with those made by her when upon the witness stand, and it appears to have been offered and admitted for that purpose. The foundation for such a question was not laid when Mrs. Nonella was upon the stand. Upon an inspection of the two questions addressed to her, touching her conversation with Mrs. Bassi, it appears that neither of them in any way referred to the actual shooting of the prosecuting witness. In order that a witness may be impeached in this manner, the statute (Code Civ. Proc., sec. 2052) demands that the attention of the witness should be