People v. Cook

I concur in the judgment of reversal. I concur also in the reasons given in the opinion of the chief justice for the reversal; but I do not concur in some other parts of that opinion. I do not think that evidence of the unlawful relation between the defendant and his daughter was admissible at all. In the first place, I do not think that it tended to show motive for the killing; and in the second place, evidence of motive is admissible, in my opinion, only where the fact of the homicide is denied and is in doubt, and not where, as in the case at bar, it is admitted. (People v. Gress, 107 Cal. 461 , [ 40 P. 752 ].) Moreover, in my opinion it was error to allow the district attorney to ask Ida Cook, when on the stand as his own witness, if she had not made declarations contrary to the testimony which she then gave. Her declarations were purely hearsay and inadmissible. A party can show contradictory statements of his own witness only where it reasonably appears that he was taken by surprise by the testimony given by his witness, and then the contradictory statements can be given only for the purpose of setting the surprised party right before the jury, not as general evidence in the case. Suppose at another trial the district attorney, well knowing what Ida would swear as to the incest, should again put her on the stand and ask her if she had ever had incestuous relations with defendant, and, upon her denying it, should ask her if she had not stated the contrary to other persons; is it possible that such questions should be allowed, *Page 353

or would it be allowable for him to prove her declarations by others? It would be intolerable to allow the manufacture of evidence in this way. He might just as well prove her declarations in the first instance, without putting her on the stand at all.