The case at bar involved an assault and a conspiracy to commit an assault and the fact that other sailors were used in picket lines in other areas remote in place and time is completely immaterial and irrelevant and was highly prejudicial to the defendants in the case at bar. ( People v. Lyons, 47 Cal.2d 311 [ 303 P.2d 329]; People v. Hardy, 33 Cal.2d 52, 61-62 [ 198 P.2d 865]; People v. Wynn, 44 Cal.App.2d 723, 732-733 [ 112 P.2d 979]; People v. Freitas, 34 Cal.App.2d 684, 687 [ 94 P.2d 397]; People v. Stafford, 108 Cal.App. 26, 29-31 [ 290 P. 920].) Defendants contend that the court erred in excluding testimony offered by them to show that threats had been made against some of them which necessitated the request to Lundeberg for bodyguards to accompany the Butchers' business agents on their rounds.
[6] The repeated asking of questions relative to objectionable and prejudicial matter which involved appeals to the passions and prejudices of the jury has been held to constitute reversible error. ( People v. Freitas, 34 Cal.App.2d 684 [ 94 P.2d 397]; People v. Duvernay, 43 Cal.App.2d 823 [ 111 P.2d 659]; People v. Wynn, 44 Cal.App.2d 723 [ 112 P.2d 979]; People v. Lynch, 60 Cal.App.2d 133 [ 140 P.2d 418]; People v. Williams, 104 Cal.App.2d 323 [231 P.2d 544].) [5b] The same thing is true with respect to the references to the knife made by the prosecution.
It went in not without objection but even if it had, the prejudicial effect must have remained. (See People v. Lyons, 47 Cal.2d 311, 321-322 [ 303 P.2d 329]; People v. Hardy, 33 Cal.2d 52, 61-62 [ 198 P.2d 865]; People v. Wynn, 44 Cal.App.2d 723, 732-733 [ 112 P.2d 979]; People v. Freitas, 34 Cal.App.2d 684, 687 [ 94 P.2d 397]; People v. Stafford, 108 Cal.App. 26, 29-31 [ 290 P. 920].) In view of this conclusion we need not consider other questions discussed by the parties.
If his judgment is wrong, not only may he incur a fine or a short imprisonment, as here; he may incur the penalty of death" ( Nash v. United States, 229 U.S. 373, 377 [33 S.Ct. 780, 57 L.Ed. 1232]). The presumption does not set forth a rule relating to the burden of proof, but merely declares a rule of procedure that places upon the defendant a duty of going forward with evidence that his omission to provide was not wilful or was excusable ( In re Bryant, 94 Cal.App. 791, 794 [ 271 P. 926]). [13] A conviction under this section cannot be sustained in the absence of proof, not only of the accused's paternity of the child ( People v. Kovacevich, 19 Cal.App.2d 335, 338 [65 P.2d 870]) but, also, that he had knowledge or notice of the existence of the unborn child and that some claim or assertion of his paternity of the child has been made to him ( People v. Freitas, 34 Cal.App.2d 684, 687 [ 94 P.2d 397]). [14] Petitioner challenges the jurisdiction of the municipal court to determine the issue of paternity in a prosecution under Penal Code, section 270, which section explicitly provides that the offense is a misdemeanor.
oo many rights, that villifies, without warrant, defense counsel and defense witnesses, that engages in fanciful inferences, not warranted by the evidence, and makes them as statements of fact not warranted by the record, that misstates the record, that uses evidence admitted for a limited purpose as substantive evidence of the facts there recited, that broadly implies the prosecution is possessed of much evidence tending to show guilt that has not been introduced, is erroneous and prejudicial. ( People v. Henderson, 4 Cal.2d 188 [ 48 P.2d 17]; People v. Ford, 89 Cal.App.2d 467 [ 200 P.2d 867]; People v. Podwys, 6 Cal.App.2d 71 [ 44 P.2d 377]; People v. Edgar, 34 Cal.App. 459 [ 167 P. 891]; People v. Hidalgo, 78 Cal.App.2d 926 [ 179 P.2d 102]; People v. Brown, 81 Cal.App. 226 [ 253 P. 735]; People v. Hale, 82 Cal.App.2d 827 [ 187 P.2d 121]; People v. Devine, 95 Cal. 227 [30 P. 378]; People v. Braun, 14 Cal.2d 1 [ 92 P.2d 402]; People v. Angelopoulos, 30 Cal.App.2d 538 [ 86 P.2d 873]; People v. Freitas, 34 Cal.App.2d 684 [ 94 P.2d 397]; People v. Duvernay, 43 Cal.App.2d 823 [ 111 P.2d 659]; People v. Wynn, 44 Cal.App.2d 723 [ 112 P.2d 979]; People v. Lynch, 60 Cal.App.2d 133 [ 140 P.2d 418]; People v. Williams, 104 Cal.App.2d 323 [ 231 P.2d 554].) [11] Of course, many of the cases cited above can be distinguished from the instant one on their facts, but they all stand for the fundamental principle that prosecuting attorneys will be restrained if their actions deprive the accused of a fair trial.
[2] While no objection was made to this question when asked by the court this in our judgment is one of those cases in which the damage was irreparable once the question was asked and hence the error may be urged on appeal despite the failure to object in the trial court. (See People v. Singh, supra, 78 Cal.App. 488, 495-496; People v. Freitas, 34 Cal.App.2d 684, 688 [ 94 P.2d 397].) If the appellant is guilty a second jury will doubtless convict him.
elative to objectionable and prejudicial matter, and persistent improper comment within the hearing of the jury. People v. Lee Chuck, 78 Cal. 317, 327, 20 P. 719; People v. Mullings, 83 Cal. 138, 23 P. 229; People v. Devine, 95 Cal. 227, 231-234, 30 P. 378; People v. Wells, 100 Cal. 459, 34 P. 1078; People v. Derbert, 138 Cal. 467, 71 P. 564; People v. Derwae, 155 Cal. 592, 102 P. 266; People v. Fleming, 166 Cal. 357, 377-381, 136 P. 291; People v. Tufts, 167 Cal. 266, 271, 139 P. 78; People v. Anthony, 185 Cal. 152, 196 P. 47; People v. Braun, 14 Cal.2d 1, 92 P.2d 402; People v. Grider, 13 Cal.App. 703, 709, 110 P. 586; People v. Pang Sui Lin, 15 Cal.App. 260, 114 P. 582; People v. Terramorse, 30 Cal.App. 267, 271, 157 P. 1134; People v. Irby, 67 Cal.App. 520, 528, 227 P. 920; People v. George, 72 Cal.App. 124, 128, 236 P. 934; People v. Ephraim, 77 Cal.App. 29, 40, 245 P. 769; People v. Simon, 80 Cal.App. 675, 252 P. 758; People v. Angelopoulos, 30 Cal.App.2d 538, 549, 86 P.2d 873; People v. Freitas, 34 Cal.App.2d 684, 94 P.2d 397; People v. Duvernay, 43 Cal.App.2d 823, 111 P.2d 659; People v. Wynn, 44 Cal.App.2d 723, 731, 112 P.2d 979; People v. Lynch, 60 Cal.App.2d 133, 141, 140 P.2d 418; People v. Williams, 104 Cal.App.2d 323, 231 P.2d 554. Many of the cases listed above are readily distinguishable from the present case upon their facts, but they are consistent in holding prosecutors to their duty to refrain from conduct which would deprive the accused of a fair trial.
Ignorance of the fact that a child has been born is a defense. (People v. Freitas (1939), 34 Cal.App.2d 684 .) Mistake of fact has been recognized as a good defense to prosecutions under other statutes.