McKelvey

The defendant was convicted of the crime of violation of section 288 of the Penal Code and appeals from the judgment and from the order denying his motion for a new trial.

Appellant did not introduce any evidence as to defendant's general reputation in the community for the traits involved in the charge against him; but the prosecution in rebuttal was permitted to introduce the testimony of five witnesses that defendant’s reputation for morality and virtue was bad. Defendant objected to each question propounded to each of these five witnesses, but the objections were all overruled. Appellant then assigned the asking of each question as misconduct on the part of the district attorney and requested the court to instruct the jury to disregard both the questions and the answers, which was denied by the court. Appellant then moved that all of the testimony of these five witnesses be stricken, which motion was also denied. When the court convened for the afternoon session, the court informed the jury that it had admitted the character evidence offered by the prosecution while under a misapprehension as to the state of the record, and then struck from the record all of the testimony…