People v. Hughes, Cr. 2922

• Decision Date: 10 March 1954
• Docket Number: Cr. 2922
• Citation: 123 Cal.App.2d 767,267 P.2d 376
• Parties: PEOPLE v. HUGHES.
• Court: California Court of Appeals Court of Appeals

Page 376

267 P.2d 376

123 Cal.App.2d 767

PEOPLE v. HUGHES.

Cr. 2922.

District Court of Appeal, First District, Division 2, California.

March 10, 1954.

Rehearing Denied March 25, 1954.

Hearing Denied April 7, 1954.

Lawrence W. Jordan, Jr., San Francisco, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Clayton R. Janssen, Jr., Dep. Atty. Gen., for respondent.

NOURSE, Presiding Justice.

Appellant was charged with assault with a deadly weapon, sec. 245, Penal Code, allegedly committed on December 7, 1952, and with two prior felony convictions. He pleaded not guilty to the assault but admitted the two prior convictions. He was found guilty by the court, jury trial having been waived.

On December 7, 1952, an assault with a knife was perpetrated on appellant's wife, with whom he was not living. In the assault she received numerous cuts, of which some nearly severed two of her fingers. She and a daughter of hers by a former marriage, who lived with her and who was present at the assault, testified that it was committed by defendant. A neighbor testified that she saw defendant enter, by a fire escape, the house in which his wife lived, saw the assault itself through a window and saw defendant leave along the fire escape, having blood on him. Appellant testified in his own defense. His testimony and that of two other defense witnesses related mainly to the fact that on December 5, 1952, an assault had been committed on the wife by another man.

There is no contention that the conviction was not supported by the evidence. Counsel, appointed by this court to represent appellant, makes two points and diligently argues them, but neither calls for a reversal.

(1) The first is that the District Attorney was erroneously permitted, over objection, to question defendant as to an assault made by him on his wife two years previous, contrary to the general rule as to inadmissibility of such evidence. "The general tests of the admissibility of evidence in a criminal case are: * * * does it tend logically, naturally, and by reasonable inference to establish any fact material for the people, or to overcome any material matter sought to be proved by the defense? If it does, then it is admissible, whether it embraces the commission of another crime or does not, whether the other crime be similar in kind or not, whether it be part of a single design or not." People v. Peete, 28 Cal.2d 306, 315, 169 P.2d 924, 929. Here defendant testified in his own defense and the Public Defender, who assisted him at the trial, offered evidence of his conversation with the police to show that he was a man of peaceful character, who wanted no trouble and therefore called the police on December 5th after his wife had been assaulted and informed them about it; that he was not the type of man that would do the cutting. When the evidence of what he had said to the police had been excluded as hearsay, he testified that he said to his wife that there was nothing he could do because he could not go into her hotel...