Opinion
Cr. 2815
10-2-1952
PEOPLE v. ROBERTS. *
Mancuso, Herron & Winn, San Francisco, for appellant. Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Wallace G. Colthurst, Deputy Atty. Gen., for respondent.
PEOPLE
v.
ROBERTS.
Oct. 2, 1952.
Rehearing Denied Oct. 17, 1952.
Hearing Granted Oct. 30, 1952.
Mancuso, Herron & Winn, San Francisco, for appellant.
Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Wallace G. Colthurst, Deputy Atty. Gen., for respondent.
BRAY, Justice.
Defendant Oliver Roberts and one Jackson Syas were charged in an information with (count 1) conspiracy to violate section 11500, Health and Safety Code; and (count 2) transporting heroin, (count 3) selling, furnishing and giving away heroin, and (count 4) having heroin in their possession (the last three in violation of said section). Both defendants were convicted on all four counts. Defendant Roberts appeals from the judgment and from an order denying him a new trial.
Questions Presented.
1. Sufficiency of the information. (a) Does a charge of conspiracy to violate section 11500 of the Health and Safety Code without specifying the particular portion or portions of that section claimed to be violated, state a crime? (b) In charging direct violations of specific portions of that section is it necessary to negative the exceptions therein set forth?
2. Sufficiency of the evidence.
3. Were the actions of the police officer contrary to public policy?
4. Alleged error in (a) admission of evidence and (b) in refusing evidence of a certain experiment.
5. Alleged misconduct of the district attorney.
1. Information. (a) Count 1.
Section 11500, Health and Safety Code, provides: 'Except as otherwise provided in this division, no person shall possess, transport, sell, furnish, administer or give away, or offer to transport, sell, furnish, administer, or give away, or attempt to transport a narcotic except upon the written prescription of a physician, dentist, chiropodist, or veterinarian licensed to practice in this State.' The first count charged appellant and Syas with 'the crime of violating section 182 of the Penal Code a felony, committed as follows:' that the defendants 'did willfully, unlawfully and feloniously conspire, combine, confederate and agree together to commit the crime of Felony, to wit: a violation of Section 11500 * * * Overt Act No. I That thereafter at and in the City and County of San Francisco, California, pursuant to the object of said conspiracy, the said defendant, Jackson Syas accompanied and was driven by the said defendant Oliver Roberts in a Cadillac Sedan along the 1200 block of Ellis Street * * * on or about April 3, 1951.'
Appellant contends that as section 11500 may be substantially violated in several different ways, by (1) transporting, (2) selling, (3) furnishing, (4) administering, (5) giving away, or (6) attempting to transport a narcotic, a charge merely of conspiring to violate the section without stating which portion, denies the appellant his constitutional right to be informed of the nature and cause of the accusation against him. He further contends that his conviction under this count would not be a bar, under the same facts, to further prosecution for conspiracy to violate the section in a certain particular, such as conspiring to transport or conspiring to administer narcotics, or conspiring to do any of the many acts prohibited by the section. Hence he could be placed in double jeopardy.
Section 952 of the Penal Code provides that in charging an offense the information 'may be in the words of the enactment describing the offense or declaring the matter to be a public offense, or in any words sufficient to give the accused notice of the offense of which he is accused.' Here the information charged defendants with violating section 182 of the Penal Code (which makes it a crime for 'two or more persons [to] conspire: 1. To commit any crime') by conspiring to commit the crime of violation of section 11500, Health and Safety Code. This is sufficient to give the appellant notice that he is being charged with the crime of conspiring to violate section 11500. The exact manner in which he violated it is a matter of proof and not of pleading. The intent of the Legislature in not requiring greater particularity in charging a public offense is shown by the last line of section 952. Although the charge of theft includes the common law offenses of theft, embezzlement and false pretenses, said line provides: 'In charging theft it shall be sufficient to allege that the defendant unlawfully took the labor or property of another.' In People v. Yant, 26 Cal.App.2d 725, 80 P.2d 506, the contention was made that the wording of an indictment was insufficient to charge an offense 'for the reason that as to the charge of conspiracy to commit the crime of grand theft, the pleading is destitute of any allegation as to the value of the property alleged to have been the subject of the proposed theft or the narration of any acts which would constitute grand theft.' 26 Cal.App.2d at page 729, 80 P.2d at page 508. As to this contention the court said, 26 Cal.App.2d at page 730, 80 P.2d at page 508: '* * * the answer is that the purpose of an indictment or information is to inform the accused of the charge which he must meet at the trial. Under our system of procedure in criminal cases, as a part of the accusatory procedure, the law now provides that in every case the accused is entitled to a copy of the testimony given before the grand jury or the committing magistrate, as the case may be. Secs. 870, 925, Pen.Code. The former requirement that a pleading must set forth the particular circumstances of the offense charged, as now amended declares that it shall be sufficient if it charges 'in any words sufficient to give the accused notice of the offense of which he is accused'. Sec. 952, Pen.Code. The appellant herein was entitled simply to notice of the offense of which he was charged, but not to the particular circumstances thereof, such details being furnished him by the transcript of the testimony upon which the indictment was founded.' The court further pointed out that by reason of the appellant's failure to demur to the indictment any objections as to any uncertainty in the indictment were waived. Pen.Code, § 1004. In our case, likewise, appellant did not demur to the information, although he did move to dismiss on the ground the complaint did not state a cause of action.
United States v. Bopp, D.C., 230 F. 723, 726, relied on by appellant, in which an indictment under the United States Criminal Code was held defective, is not applicable here. It held the federal rule to be that in charging an offense which includes generic terms, it is not sufficient to charge the offense in the same terms as in the definition, but 'it must state the species, it must descend to particulars * * *.' This case, like others cited by appellant, was decided prior to the liberalization of pleadings in criminal cases by statutory amendments. As said in People v. Curtis, 36 Cal.App.2d 306, 317, 98 P.2d 228, 233: 'It is to be remembered that the sufficiency of the indictment is not to be tested by the rigorous rules of the common law, nor by the rules existent in this state prior to the 1927 and 1929 amendments to our statutes governing pleadings in criminal cases.' As shown in the Yant case, supra, 26 Cal.App.2d 725, 80 P.2d 506, and as set forth in section 952, Penal Code, the rule of the Bopp case is not the rule in California. It is obvious that having been convicted of a conspiracy to violate section 11500, appellant could not again be convicted of a conspiracy to violate any specific portion of that section. His conviction is a bar to any further prosecution for conspiracy in connection with that section.
1. Information. (b) Counts 2, 3 and 4.
These three counts charged both defendants with substantive violations of section 11500, count 2 charging they transported, count 3, sold, furnished and gave away, and count 4, had in their possession, a preparation of heroin in violation of the section. The section begins 'Except as otherwise provided in this division, no person shall possess * * * a narcotic except upon the written prescription of a physician' etc. Appellant's attack on the sufficiency of these counts is that they do not negative these exceptions. While appellant finds some support in 27 Am.Jur. 666 and cases cited from other jurisdictions, the California courts have definitely resolved this question contrary to appellant's contention in a number of cases, see 14 Cal.Jur. 52. Among others is People v. Bill, 140 Cal.App. 389, 35 P.2d 645, where the information charging violation of the Narcotic Drug Act did not negative the exceptions set forth in the act. The court held, based upon a number of California cases there cited, that it is not necessary for the prosecution to negative the exceptions. 'The exception which exempts one from criminal liability for possessing narcotic drugs * * * is a matter of defense.' 140 Cal.App.2d at page 392, 35 P.2d at page 647. It further held that from the allegation that the defendant was unlawfully possessed of the narcotic, it follows that the defendant did not hold a physician's prescription. It pointed out that whether a person comes within an exception to the statute which authorizes possession of the drug is a matter peculiarly within the personal knowledge of the defendant, and because of that fact and the extreme difficulty the prosecution would have to affirmatively prove the negative condition which exempts one from criminal liability under the statute, the law does not require either the allegation in the information of this exception nor affirmative proof thereof on the part of the prosecution. To the same effect, People v. Harmon, 89 Cal.App.2d 55, 200 P.2d 32; People v. Miles, 9 Cal.App. 312, 101 P. 525, cited by appellant, is not in point. There an information charging rape was held insufficient because there was no allegation that the victim was not the defendant's wife. Differing from our case, there such an allegation was a part of the definition of the crime. Moreover, in People v. Bonfanti, 40 Cal.App. 614, 181 P. 80, the Miles case was practically overruled, the court stating that under section 4 1/2 of article VI of the Constitution (adopted subsequently to the decision in the Miles case) the failure in a charge of rape to allege that the victim was not the wife of the defendant did not justify a reversal of the conviction.
Appellant's answer to the above cases and others to the same effect is that as they are decisions of other divisions of this court, even though in some of them the Supreme Court denied petitions for hearing, we are not bound to follow them. It is sufficient for us to say that we believe the reasoning in them is sound and should be followed by us.
2. Evidence.
Taking the evidence, and the reasonable inferences therefrom, most favorable to the prosecution, as we are required to do, the evidence establishes the following facts: Officer Duarte of the San Francisco police, assigned to undercover work with the narcotics squad, used an informer called 'Hometown,' whom he met through an inspector of the State Bureau of Narcotics Enforcement. About 9 p. m. on April 2, 1951, Hometown brought Syas to Duarte's car, which was parked on Webster Street between Post and Geary in the Fillmore district. Duarte asked Syas if he could fix him up with some 'stuff.' Syas, replying in the affirmative, got into Duarte's car, giving Duarte instructions to drive to and park opposite the 'Town Club.' Syas stated that $50 was the price for a spoon of 'H' (heroin). Duarte gave him $50. Syas left the car, walked across the street to the front of the Town Club, met and talked to another man there. After movements of their hands, Syas returned. The other man walked towards Fillmore Street. Entering the car, Syas handed Duarte a napkin containing 4 bindles, a total of 10 grains of heroin. Syas then directed Duarte to drive Syas home. Hometown, Duarte and Syas entered it. There, in Duarte's presence, Syas two women, and Hometown 'took a fix' of the heroin, which Duarte 'unwillingly' gave to one of the women from three of the four bindles. Syas and Hometown had made an agreement between themselves that the fix was to be Syas' pay for setting up the purchase.
On the following evening, April 3rd, about 9 p. m., Duarte and Hometown were parked at the corner of Webster and Geary. Hometown left. Later he returned and instructed Duarte to drive to Syas' home on Ellis Street to await Syas. Duarte parked his car on Ellis Street, facing east, near Syas' apartment. Shortly, a 1949 black Cadillac four-door sedan passed traveling west. Its headlights were on and it was going about 20 miles an hour. When the glare of the lights passed, Duarte recognized Syas seated in the front seat alongside the driver, the appellant, whom Duarte also recognized. The car was driven to the corner of Octavia where it made a 'U' turn, came back and parked one vehicle behind Duarte's car on the same side of the street. Syas then came to Duarte's car, got in the back seat, handed Duarte four bindles of heroin and said 'Give me the money, the man's back there waiting for it.' Duarte gave Syas $50 for the heroin. As Duarte watched through his rear view mirror, Syas went back to the Cadillac, opened the door, leaned in, and conversed with the driver. Duarte saw both men move their arms. Then Syas pulled back out and closed the door. The Cadillac then started up and passed Duarte. As it passed him Duarte again identified appellant. Hometown and Duarte then walked up to Syas and they all went into the latter's apartment. On the way in, Syas told Duarte that 'the man' was not yet ready to meet Duarte. Duarte, who knew appellant as Oliver Roberts, said, 'You mean Oliver?' and Syas said, 'Yes.' In the apartment, Syas and Hometown and a woman each took a shot of the heroin purchased by Duarte. That same evening Inspector Noel saw appellant driving a black Cadillac on Fillmore Street in the general vicinity where Duarte placed him, on two occasions, one of which was about 9 p. m.
On the evening of April 26, 1951, Duarte, Hometown and another suspect, Briscoe, drove about the Fillmore district. In a nearby vacant lot Briscoe procured a small package of cocaine. Finally, on instructions of Briscoe, they parked on the north side of Haight Street near Steiner in front of 604 Haight. (Syas was not involved in the incidents of this evening.) Briscoe left. Shortly Duarte saw a black Cadillac coming down Haight Street, traveling east. As it passed Duarte recognized in it appellant and Briscoe. The Cadillac proceeded to Fillmore Street, turning right and leaving Duarte's sight. Soon it appeared again, traveling north on Steiner, turning right at Haight and going east on that street. It stopped and parked part way down the block. Briscoe left it, came to Duarte's car, got in the back seat and handed Duarte a bindle of cocaine, containing 11 grains. Duarte paid him $25 in marked state funds.
May 9th, Syas was arrested. To Inspector Noel he denied knowing appellant or having sold narcotics on April 3rd. Later he admitted to Noel that he knew appellant and that on April 2d and 3rd he made deliveries of packages for appellant but denied knowing they contained narcotics. (At the trial Syas denied making this admission.) He refused to answer further questions put to him by Noel without a guarantee of reward.
After his arrest and on May 15th appellant admitted to Noel that he had been in the Fillmore district on April 2d, 3rd and 26th and that on the 2d and 3rd he had been with Syas 'or' Briscoe. Noel asked him concerning his sources of income and he replied that he made his money any way he could. Noel asked, 'By selling narcotics?' and appellant did not answer.
On the stand, appellant denied that he saw Syas on April 2d or that Syas was in his car on April 3rd or at any time; denied seeing Duarte until his arrest or ever having seen Hometown. He admitted that on April 3rd he possessed a Cadillac sedan. He stated he was a property owner with a net income of $80 per month. He maintained his manner of living by playing poker. He did not know what 'bindles' or 'stuff' were, but he admitted he knew what 'H' and 'coke' were.
Syas testified that he and Hometown had made a deal whereby they were to deceive Duarte into thinking that he, Syas, was making the purchases testified to by Duarte, but that in fact the purchases were all made by Hometown. He claimed that the purchases of April 2d and 3rd were made by Hometown from one Sammie Love, and not from appellant; that Love had a black 1940 Cadillac four-door sedan. Syas denied that he made the statements concerning appellant testified to by Duarte.
The evidence is sufficient to support appellant's conviction. On the night of April 2d Syas first demonstrated his function as a purchaser of narcotics for Duarte. (Appellant was not involved in this transaction.) Syas directed Duarte where to drive, then after obtaining the necessary $50 from Duarte, proceeded across the street, met a man with whom he talked. There was a movement of hands and on returning to the car Syas gave Duarte a napkin containing four bindles containing 10 grains of heroin. The next evening, April 3rd, as Duarte was parked in front of Syas' apartment, appellant drove by with Syas seated alongside him. Appellant made a 'U' turn and parked his Cadillac one vehicle behind Duarte. Syas then left the car, came to Duarte, gave him the four bindles, and received $50. Syas then returned to the Cadillac, opened the door, leaned in and had a short conversation with appellant. There was a movement of arms.
On April 26th a somewhat similar incident involving appellant occurred, but with another go-between, Briscoe. The latter was riding with appellant in apparently the same Cadillac. After parking about a block from Duarte's car Briscoe came to Duarte and gave him a bindle of cocaine for which he received $25. After his arrest appellant denied any connection with Syas or that Syas had ever ridden in his car. In his testimony he likewise made the same denial. A reasonable inference from the circumstances of April 3rd and 26th is that appellant was the source of supply for the go-between, and that Syas on the 3rd was obtaining the $50 for him.
The circumstances surrounding appellant's actions on those nights, taken alone, are not inconsistent with a reasonable inference of innocence and would not alone be sufficient to establish appellant's guilt. But appellant's denial in his statement to Noel and on the stand that he knew Syas or that Syas was ever in his car (facts which the jury must have found to be true) and that on the nights in question he was where two witnesses placed him, coupled with those circumstances, not only raises an inference of guilt but is entirely inconsistent with an inference of innocence. In other words, appellant's untrue denials plus the suspicious circumstances of the nights in question are only susceptible of one reasonable interpretation, namely, that he was associated with Syas in the transportation, possession and sale of narcotics. The facts that in each instance the money was marked and yet no attempt was made to arrest appellant while he had it, that the informers were not searched before contacting appellant, and that Hometown was not called as a witness, were matters for the jury to consider, but do not, as contended by appellant, make Duarte's story inherently improbable. Particularly is this so in view of appellant's denial of Syas' presence in his car, a fact which is a most integral part of the proof of the crimes.
3. The Actions of the Police Officers.
Appellant contends that if he committed the crimes alleged, he was procured to do so by the state narcotic officer and Duarte; that, in effect, he was the victim of entrapment which he contends is against public policy. Here, however, there was no entrapment by either officer. Hometown, the informer, brought Syas to Duarte, who asked the latter if he could get him narcotics. There was no suggestion that Syas patronize appellant or any specified drug peddler. Nor was there any action of the officer that induced appellant to sell narcotics nor any evidence that it was the persuasion of the officer which caused him to do it. He at all times claimed he did not do so. Unfortunately, in narcotic cases, the most, if not the only, effective means of information concerning the procurement of drugs and the detection of peddlers and distributors is from known users, such as Hometown here. There was no entrapment here. Nor was Duarte what appellant calls an 'agent provocateur.' 'Succinctly stated, the situation with which we are here confronted is that law enforcement officers were informed by Bonnie Whitcomb of her dealings with appellant. Upon receipt of this information the officers furnished appellant an opportunity to commit the offense charged. Does this constitute unlawful entrapment as that term is known to the law? We think not.' People v. Schwartz, 109 Cal.App.2d 450, 454, 240 P.2d 1024, 1027. Moreover, no suggestion of this defense was made at the trial nor did the appellant ask that the jury be instructed upon the subject. It cannot be raised for the first time here. Furthermore, the defense of entrapment is not available to a defendant who denies he committed the act in question. People v. Johnson, 99 Cal.App.2d 559, 222 P.2d 58.
Again, great stress is laid by appellant upon the fact that Duarte permitted Syas and Hometown, as well as some women, to use the narcotics which he had purchased. As stated by Duarte, he was in a position where he either had to do so or he uncovered as a police officer. We can see nothing under the circumstances in the officer's actions which was against public policy. Moreover, assuming that the officer improperly permitted the use by others of those narcotics which appellant had transported and sold, we fail to understand how that fact could be a defense to appellant's earlier violation of the law.
4. Alleged Errors. (a) Admission of Evidence.
Appellant contends that the testimony of Noel as to statements made to him concerning appellant by Syas after the latter's arrest and without the presence of appellant, were admitted without limiting them to the case against Syas. However, an examination of the record discloses that the court did so limit them. Inspector Noel stated that he had had a conversation with Syas on the 9th of May outside the presence of appellant. The district attorney then asked the court to instruct the jury that this conversation be limited solely to the defendant Syas. The court so instructed the jury. Shortly thereafter Noel stated that he had another conversation with Syas. Appellant objected, and asked that any conversation had about appellant be stricken as immaterial. The court asked appellant's counsel whether he did not think that this conversation, if it established that Syas was dealing with another man, would be binding on Syas. Appellant's counsel said yes. The court then overruled the objection. The conversation was then testified to. After relating the conversation complained of, Noel then testified to the conversation with appellant, made outside Syas' presence. The district attorney asked for and the court so instructed the jury that this was just the reverse of the other proposition, referring to the previous instruction on Syas' first conversation. No other objection than that set forth above was made nor was any request made by appellant for further instructions. The same conversation was related a second time by a deputy district attorney without objection, at which time the prosecution declared that it would be binding only on Syas, and the court said, 'Very well.' Appellant's counsel said and did nothing. The testimony was admissible against Syas, although not against appellant. It was limited to the case against Syas. If it required further or more definite limitation than that given, it was incumbent upon appellant to say so. See People v. Agajanian, 97 Cal.App.2d 399, 405, 218 P.2d 114; People v. Beal, 108 Cal.App.2d 200, 206, 239 P.2d 84; People v. Matthew, 194 Cal. 273, 281, 228 P. 424. In its final instructions the court informed the jury that it was its duty to disregard completely as against one defendant evidence that was admitted only as to the other. Appellant's contention that Syas' statements were admitted as against both defendants is not supported by the record. If appellant felt that the judge's instructions to the jury limiting the testimony as against Syas were not sufficient, appellant both at the time of admission of the evidence and of final instruction, should have requested that the instructions be amplified. This appellant did not do. He cannot now complain. See People v. Matthew, supra, 194 Cal. 273, 281, 228 P. 424; People v. Beal, supra, 108 Cal.App.2d 200, 206, 239 P.2d 84.
4. Alleged errors (b) Rejection of Evidence.
Appellant called a private investigator, Carter Shired. When he was asked if he had been employed to conduct an experiment for appellant, the prosecution asked for an offer of proof in chambers. There, appellant's counsel stated that he proposed to impeach the testimony of Duarte as to what he could see and the physical impossibility for him to do what he said he did, by the testimony of the witness concerning 'an experiment that was conducted at 9:00 in the evening on the corners of Laguna and Ellis Streets with three automobiles involved, traveling at the speed of 20 miles an hour, persons in the cars, and the ability or the inability of a person to identify them, and at what distances they could identify them at.' A discussion ensued, in which the prosecution objected that the experiment would have to be under the same conditions and pointed out that the time of Duarte's observation was in April under daylight saving time, while the experiment was made on or after October 8th, when there was no daylight saving. Appellant's counsel later stated: 'I'm putting Mr. Shired on the stand to testify as to--my offer of proof is to testify that he conducted an experiment on the corner of Octavia and Ellis Streets with three automobiles involved going at approximately 20 miles an hour and parking them there, and he made an effort to distinguish and identify people in these automobiles, and that I believe his testimony would be this was impossible for him to do so.' In replying to the prosecution's objections that there was nothing to indicate that the conditions were similar, appellant's counsel merely stated 'that if we were allowed to put on the experiment I think we would simulate, I think we have simulated the same conditions. I think it's common knowledge that the street hasn't changed any, Octavia and Ellis Streets, the size of the street, the lights--they're the same as they were on the night in question--and I think we would produce in evidence the same kind of car, a 1940 Cadillac.' (Appellant's car was a 1949 Cadillac.) Appellant's counsel then said, 'I think we have been able to simulate the same conditions * * *.' At no time did appellant positively state that the conditions of the experiment were substantially similar to those of April 3rd. The rule as to the reception of this type of evidence is set forth in People v. Parker, 4 Cal.App.2d 421, 424, 40 P.2d 836, 837: 'To render evidence of experiments admissible there must be a possibility of reproducing substantially the same conditions which existed when the original occurrence took place. The reception or rejection of such evidence lies largely within the discretion of the trial court with the limitation thereon that it must be shown that substantially the same conditions existed; and further that the evidence shall be of such a character as to aid rather than to confuse the triers of fact with collateral matters.'
As pointed out in the cases cited by appellant, among others People v. Spencer, 58 Cal.App. 197, 208 P. 380; People v. Hadley, 175 Cal. 118, 165 P. 442; Ortega v. Pacific Greyhound Lines, Inc., 20 Cal.App.2d 596, 67 P.2d 702, the conditions of the experiment do not have to be identical with those existing at the time of the occurrence in question, but there does have to be a substantial similarity. See also People v. DeWitt, 98 Cal.App.2d 709, 220 P.2d 981. The cases cited by appellant, among others People v. Lamson, 1 Cal.2d 648, 36 P.2d 361; People v. Spencer, supra, 58 Cal.App. 197, 208 P. 380; People v. Hadley, supra, 175 Cal. 118, 165 P. 442, are distinguishable from the case at bar for the reason that in those cases the evidence indicated that the conditions of the experiment were substantially similar to those of the occurrence.
In view of the fact that no positive offer to prove substantially similar conditions was made, except appellant's mere statement that he thought he could, we cannot say that the court abused its discretion in refusing evidence of the experiment. As said in the Parker case, 'The impracticability of accomplishing this experiment with substantial conformity to the original episode would seem to require the trial court, in its exercise of discretion, to refuse admission of the evidence thereof.' 4 Cal.App.2d at page 424, 40 P.2d at page 838.
5. Alleged Misconduct of District Attorney.
In cross-examination of appellant as to his income, the district attorney asked, 'You're commonly known in the Fillmore as a peddler of narcotics, are you not?' Appellant objected and the court promptly sustained the objection. Appellant did not assign this as misconduct nor request that the jury be instructed. He now claims that it was such misconduct that an instruction would not have cured it, that 'you cannot unring a bell.' We fail to see how the asking of this question constituted misconduct or how its effect could be as serious as contended by appellant. The district attorney at no time made any attempt to repeat it, nor refer to it in argument. Nothing indicates that the district attorney was acting in bad faith nor that it could have affected the verdict. Unquestionably, the district attorney, in attempting to find out from appellant the source of his income, properly could have asked appellant if he was a peddler of narcotics in the Fillmore district, so that asking him about his reputation in that respect to which the court promptly sustained an objection could not have been prejudicial. In the cases cited by appellant in which convictions were reversed for improper questions, there was either persistent questioning or else improper comment made to the jury. Thus, in People v. Valliere, 127 Cal. 65, 59 P. 295, while there was but one question asked and it was promptly rebuked by the court, the reversal was because the district attorney in argument referred to the objectionable matter 'that I know of to my own knowledge.' 127 Cal. at page 66, 59 P. at page 296.
The judgment and order are affirmed.
PETERS, P. J., and FRED B. WOOD, J., concur. --------------- * Subsequent opinion 254 P.2d 501. 1 Unless otherwise noted, all emphasis added.