People v. Mount

BARNARD, P. J. The defendant was charged, in separate counts, with an attempt to violate section 288a of the Penal Code and witli an attempt to commit the crime of rape. A jury found him guilty on both counts and he was sentenced to serve a term in the penitentiary, the sentences on the respective counts to run concurrently. He has appealed from the judgment and from an order denying his motion for a new trial.

For obvious reasons it is not contended that the evidence is not sufficient to sustain the judgment. A reversal is sought mainly on the ground that the prosecuting attorneys were guilty of misconduct which amounted to prejudicial error. While the appellant’s brief sets forth some twenty quotations from the arguments of these attorneys before the jury, any attempt to point out misconduct or prejudice is confined to a very few of them. Most of these quotations disclose nothing objectionable and are within the established rule that counsel is entitled to “state fully his views as to what the evidence shows, and as to the conclusions to be fairly drawn therefrom”. (People v. Sieber, 201 Cal. 341 [257 Pac. 64].)

Turning to those instances in which some argument is presented the first is wliere a deputy district attorney, in the course of his argument, said: “It has not been so long ago since a sex fiend was here in this community.” While this was improper the only objection made by the appellant [288]was that it was not based upon the evidence in the case and the court instructed the district attorney to keep within the testimony. Ordinarily it is the duty of counsel for the defense to assign such matters as misconduct or request the court to instruct the jury to disregard it. (People v. Sieber, supra.) No such assignment or request was here made and after the admonition of the court the matter was dropped.

The next portion of the argument objected to is as follows:

“ . . . and I want to tell you, ladies and gentlemen, that in my opinion when you are out of this jury box and you saw this woman and she related her story to you as she related it to the officers making the investigation, there would be no question in your mind as to the guilt of the man that assaulted her”.

At the request of counsel for the appellant the court instructed the jury to disregard this remark. In speaking of the prosecuting witness a deputy district attorney said: