People v. Wells

McFarland, J. Information charges the defendant Wells, jointly with Ollie Hutchings, alias Grace Gilbert, with the crime of forgery. Wells was tried separately, was convicted, and appeals from the judgment and from an order denying a new trial.

Appellant contends for a new trial upon several grounds: Because the assistant district attorney, representing the people, in his opening address to the jury made misstatements of facts prejudicial to appellant; because the court, while excluding all other witnesses not under examination, refused to so exclude a policeman who was a witness for and an active participant in the prosecution; because the court refused to strike out certain answers of the witness Leavitt; because one or two of the jurors were guilty of misconduct; because there is newly discovered evidence material to appellant; and because appellant was prevented from having a fair and impartial trial by reason of the misconduct of the prosecuting attorney in asking a certain question of the witness Lees and certain questions of the appellant when on the stand as a witness on his own behalf. The last ground of contention is the only one which we deem it necessary to largely discuss.

It appeared from the evidence that Ollie Hutchings falsely personated Miss Emma L. Dick, the owner of certain real property in San Francisco; forged the name of Miss Dick to a note and mortgage on said property; acknowledged the mortgage, as Miss Dick, before a notary; procured a loan of eight thousand dollars on the mortgage, and in a day or two afterwards disappeared. [461]The appellant Wells was a general business agent, dealing in real and personal property, etc., and the said loan to Ollie Hutchings was effected, in part, by his agency. The prosecution charged that appellant was an accomplice of said Ollie in said false personation and forgery, while appellant claimed that, like the notary and others, he was deceived by her and believed her to be Miss Dick.

It appeared that after the forgery had been discovered appellant made considerable effort to discover the said Ollie, and for that purpose employed one Leavitt and one Staniels, who traveled through a number of the counties and cities of the state to find her. Staniels was put on the stand as a witness for the prosecution. Afterwards, while the captain of the police was being examined as a witness for the people, the prosecuting attorney asked him this question: “ I want to ask one leading question, and do not answer it until counsel has an opportunity to object. Is it a fact that a short time after that Staniels came to you and reported about Wells wanting him to tell the woman to skip?” Objection was made by appellant, and, of course, sustained. There was not the slightest excuse for asking this question. In fact, there was injected into it an apology for asking it. What, then, was its purpose? Clearly, to take an unfair advantage of appellant by intimating to the jury something that was either not true, or not capiable of being proven in the manner attempted. And the wrong was not remedied because the court sustained an objection to the question. Counsel undoubtedly knew beforehand that the objection would be sustained.