People v. Porter , 82 Cal. App. 2d 585 ( 1947 )

McCOMB, J.

We have for consideration (1) a motion for the augmentation of the record on appeal, and (2) an appeal from a judgment of guilty of violating section 245 of the Penal Code (assault with a deadly weapon) after trial before the court without a jury.

The Motion for Augmentation of the Record

Defendant asks this court to augment the record on appeal by having included therein (1) the arguments of the district attorney and defendant’s attorney before the trial court, and (2) the record of the judgment in case number 23386 of the Municipal Court of the City of Los Angeles.

The purpose of such motion is to support in this court the argument that the district attorney committed prejudicial error in asking character witnesses in behalf of defendant whether or not they knew that defendant had been arrested for disturbing the peace and found guilty of such charge, and in thereafter arguing to the court that the character witnesses’ testimony should be considered in the light of the fact that they did not know that defendant had been found guilty of disturbing the peace. Defendant asserts that the judgment in the municipal court just referred to shows that he was found guilty only of being drunk in a place open to the public view and was not found guilty of disturbing the peace.

The motion must be denied for the reason that the record of the judgment in the municipal court was not offered or received in evidence in the trial court. Only evidence can properly be inserted in the record which was (a) heard by the trial court, or (b) offered in evidence and excluded. To permit an appellant to place in the record any evidence (a) not actually heard by the lower court or (b) offered in evidence and excluded, would work great injustice, both to the trial court and to the opposing party. It might present to the appellate court a case entirely different from the one presented to the trial court and decided by it. (In re Moore, 78 Cal. 242, 244 [20 P. 558]; Hamilton v. Kelsey, 126 Ore. 26 [268 P. 750, 755]; Thex v. Shreve, 38 Wyo. 285 [267 P. 92, 94].)

Since the judgment of the municipal court was not offered or received in evidence by the trial court, it cannot properly be made a part of the record in this court, and as a result it naturally follows that it would not be of advantage to defendant to order the arguments of counsel made a part of the record here.

The Appeal

Defendant contends that the judgment should be reversed for the following reasons:

First: There is not any credible or substantial evidence to sustain a finding that defendant committed an assault with a deadly weapon upon the complaining witness.

This proposition is untenable. The complaining witness testified that defendant was making a lot of noise in loading his automobile and trailer, which disturbed the complaining witness and other neighbors; that he went over and asked defendant not to make so much noise, which request defendant disregarded, whereupon complaining witness told defendant, “you better keep quiet or I will call the police”; that he thereupon turned to call the police and defendant hit him on the head with a hammer. This evidence, which was evidently believed by the trial judge, was sufficient to sustain the finding of guilty of assault with a deadly weapon.

There is nothing inherently improbable or incredible in such testimony. Likewise, this court must disregard the conflicting and contradictory statements of other witnesses. (People v. Pianezzi, 42 Cal.App.2d 265, 269 [108 P.2d 732].)

Second: The trial court committed prejudicial error in permitting the deputy district attorney, during cross-examination, to ask witnesses, who had testified that defendant had a good reputation for being a peaceful and law-abiding citizen, whether they knew that defendant had been arrested and found guilty of disturbing the peace.

In three instances the question was asked the character witnesses and they were permitted to answer without any objection being made. Defendant cannot, of course, predicate error upon the admission of the answers of these witnesses to the question for the reason that it is the general rule that objections to the admission of evidence may not be made for the first time on appeal.

On cross-examination, of witness Aumack, when the district attorney propounded the alleged objectionable question, counsel for defendant said, “I object to the question as no foundation.” The foregoing objection was not sufficiently explicit to indicate the specific reason for its interposition, and wás therefore properly overruled. An objection that a “proper foundation has not been laid” is too general in the absence of' á specification of the particulars wherein the foundation is insufficient to permit an appellant to urge on appeal the insufficiency of the foúndation for the receipt of the evidence. (Nofziger Lumber Co. v. Solomon, 13 Cal.App. 621, 627 [110 P. 474].) It is the general rule that if a general objection to the evidence is overruled, such objection cannot avail the objector on appeal unless it appears that such evidence was inadmissible for any purpose whatsoever. (People v. Conterno, 51 Cal.App.2d 167, 169 [124 P.2d 610].) An objection must usually be specific and point out the ground or grounds relied upon in a manner sufficient to advise the trial court and opposing counsel of the alleged defect so that the ruling may be made understandingly and the objection obviated if possible.

Clearly in the present case the objection did not fall within the foregoing requirements and the evidence. was relevant and material to an issue before the trial court.

Again, when a similar question was asked the witness William Frank, counsel said, “I object to that.” The trial court did not err in overruling the objection thus made. This objection was insufficient for the same reasons that the objection to the testimony of the witness Aumack was insufficient.

The motion to augment the record is denied and the judgment is affirmed.