People v. Rosenthal

SCOTT, J., pro tem. Defendant was convicted of robbery in the first degree and has appealed from the judgment of conviction and from the order denying his motion for a new trial.

The testimony discloses that on the evening of March 25, 1933, at about 10:30 P. M., one DuBoise, proprietor of a garage in Los Angeles, and his companion Wesselman, were held up at the point of a gun by two unmasked men, one of whom both identified as Rosenthal. The latter denied the commission of the offense and offered evidence by way of an alibi to the effect that at the time of the holdup he was at or near his home.

Appellant contends that the district attorney was guilty of prejudicial misconduct during the trial and argument of the case. A defense witness, Joe Blake, was called to the stand and upon his being sworn the district attorney asked permission to question him on voir dire with respect to the oath, and on cross-examination asked him, “Do you believe in God?” This request was denied and defendant’s objection to the question was sustained. They are cited as misconduct. If the district attorney had reason to believe that some form of oath connected with or in addition to the one customarily administered would be more solemn and obligatory, it was a proper discharge of his [45]duty to bring that to the attention of the court in order that the latter’s discretion might be properly exercised. (Code Civ. Proe., secs. 2095, 2096.) The witness admitted that he had been convicted of robbery, a felony, and if the jury disbelieved his story it is reasonable to assume that it was because he was thus impeached.

Counsel for defendant questioned Ms witness Soforenko with reference to a visit made to the witness late the preceding night by two deputy district attorneys. The witness, when asked, “Were you threatened by the gentlemen last night?” stated as follows: “Well, I was certainly given to understand that things might go wrong if I testified” and “they said that they believed that I was not telling the truth, and that the lid would be blown off and they would go — they intended to go to the grand jury”. There is no contention by defendant that the witness testified falsely or that the alleged threats had any effect upon him.

A similar incident with reference to the witness Sehlyen was presented by defendant, and is now complained of in like manner. These matters were brought to the attention of the jury by defendant in an obvious attempt to create prejudice in his favor, and could not be construed as misconduct of the district attorney in the trial of the Case.