People v. Parmelee

HOUSER, J. Defendant appeals from a judgment which followed his conviction of the crime of assault; also from an order by which his motion for a new trial was denied.

The incident which resulted in the alleged assault of which defendant was convicted arose on an occasion when a so-called “hunger parade” was about to take place. The pertinent testimony adduced on behalf of the prosecution was to the effect that, without provocation of any sort, defendant committed the assault in question. On the other hand, on behalf of defendant, testimony was given by each of several witnesses in substance that, not until after defendant had been attacked by the asserted victim of his assault did he offer any physical violence to the person who theretofore had been the aggressor and the instigator of the difficulty between them.

The principal reason urged by appellant for a reversal of the judgment depends primarily upon the fact that, over the objection of defendant, as to each of the witnesses called by him to testify in his behalf, the prosecution was permitted to insistently and repeatedly question the witness not only as to whether he was a member of the Communist party, but as well with reference to its general activities and its participation or interest in the “hunger parade” on the occasion in question,—all without first, or ever, either establishing, or offering to establish, the fact that defendant was a member of the Communist party, or that he had any political or other connection therewith. It also appeared that but one of the several witnesses introduced by defendant was a member of the Communist party. Also lacking in that which for convenience only may be termed a “foundation” for the introduction of evidence relating in any manner to the Communist party, [125]it is noted that the prosecution utterly failed to show that that party, or any branch or subdivision thereof, had any concern or interest whatsoever in the “hunger parade”; nor was any evidence introduced by which the Communist party was defined, or by which its objects or its purposes were made to appear.

In connection with the examination of such witnesses, the purpose thereof was made clear by the line of argument in which the deputy district attorney indulged in his address to the jury, of which the following excerpts are examples:

“ . . . But, behind that innocent gathering, you see the sinister banner of anarchy. These people, who went there, not because they were hungry, not because they were out of work, but because they were members of a party that you know too well. . . . These people who went there, not because they were oppressed or distressed for want of food, clothing and employment, but because they recognized in that group of two or three hundred people, who were suffering from hunger and unemployment, the closest allies of anarchy, who recognized there a fertile bed, wherein they might deposit seeds of anarchy, they went there for that purpose, to stage a demonstration, not a hunger demonstration, but to stage their own demonstration, aided, assisted and abetted by these unfortunate people who were going to stage this little gathering. And when they saw that the representatives of the people of this community, the representatives of law and order, your representatives, were there, to see that there was no violence, that there was no demonstration of that kind, it aggravated them beyond control, because those individuals hate your representatives fundamentally; they hate police officers. And, when they realized that these police officers were there for the purpose of stopping them from staging their demonstration in conjunction with the hunger march, it aggravated them to the extent that they resorted to their old characteristics, force and violence. . . . Now, there is where you are going to have to determine who told the truth in this ease. You are going to have to determine whether a woman such as Mrs. Clear, has told the truth, who comes here and tells you that she went down to join the hunger parade, and that she saw this fight, . . . Now, let us examine into who this Mrs. Clear is. She admits that she is a member of the Communist party and