People v. Storke

COOPER, C. The defendant was convicted of the crime of libel. She prosecutes this appeal from the judgment, and an order denying her motion for a new'trial. It is conceded that the evidence sustains the verdict, and that the instructions given to the jury were correct. Defendant, however, claims that numerous errors were committed in the rejection of testimony, and the refusal of the court to give an instruction asked by defendant.

I. The defendant called one Ivison as a witness, and asked him this question: “Now, I will ask you if any application was ever made to you for permission to enter those rooms, or to give the keys to any person for the purpose of entering those rooms?” The district attorney objected to the question on the ground that it was incompetent, irrelevant and immaterial, and the objection was sustained. It is claimed that this evidence was material for the purpose of impeaching one Peraude, a witness for the people. Peraude testified that on a certain occasion, before the trial, during the absence of defendant from her rooms, witness and' one Storni entered therein; that Storni lifted witness up, and he stood on-top of Storni and entered through a transom window; that he then opened the door and Storni entered, and the two made a search and procured specimens of defendant’s writing and some tissue paper, which articles were used in evidence during the trial. The evidence sought would not have tended to contradict the witness Peraude. Counsel has not pointed out in the evidence of Peraude that he ever said that he applied to Ivison for permission to enter the rooms or to get the keys, and we have searched the transcript in vain for any such evidence. The question asked was general, and the attention of Ivison was not called to the witness Peraude or to anyone. The ruling was correct.

2. In answer to questions of defendant’s counsel in cross-examination, the witness Peraude said that he went to one Maulsby, in the town of Santa Barbara, and said: “Who is there in this town—a woman who is in the habit of writing [407]for the newspapers, who is a bright, smart, vindictive woman, and has something to say about everyone that is connected in any way with Winchester, and that has it in for him ? And he looked at me a moment, and he said, ‘I know of but one woman.’ I said, ‘Who is it?’ ‘Mrs. Storke.’ ” The defendant called Maulsby as a witness for the purpose of impeaching Peraude, and after reading the above extract to him, said “Now, I will ask you, Mr. Maulsby, if you so stated to the witness Peraude at the time of his interview, or at any other time.” The district attorney objected to the question upon the ground that it was incompetent, immaterial and an attempt to contradict Peraude as to a collateral matter. The court sustained the objection, and defendant now argues with much apparent earnestness that the court erred in so doing, to her injury. We think the ruling correct. The answer of Peraude, concerning which it is sought to impeach him, was brought out by defendant in her cross-examination. The only thing that Peraude related as being said by Maulsby was, “I know of but one woman.” Maulsby did not mention defendant’s name, and said nothing against her. In answer to Peraude’s description, he said that “he knew of but one woman.” It seems to us that the answer of Peraude as to what Maulsby said was as to a wholly immaterial matter. That Maulsby knew of but one woman in town who answered the description given to him by Peraude was not a material circumstance. Because Maulsby knew only one such woman, we cannot presume that he referred to defendant. The rule is elementary that a witness cannot be impeached as to a collateral matter brought out in cross-examination. The statement of Maulsby was not competent evidence. It was not made in the presence of defendant and was not admissible. The defendant having asked questions of Peraude, in cross-examination, of such a nature as to elicit the answer, and not having in any way objected to it or moved to strike it out, was not afterward entitled to impeach Peraude by showing that the statement was not true.