People v. Majoine — 144 Cal. 303

Majority

p. 303

[Crim. No. 1140.

Department Two.

August 1, 1904.]

THE PEOPLE, Respondent, v. GUSTAVE MAJOINE, Appellant.

Headnote

Criminal Law—Burglary—Joint Conviction—Evidence—Discretion. —Where the appellant, with another person accused of the same crime, was convicted of burglary, it was in the discretion of the court to allow a witness who had testified to a conversation with such other defendant to testify on redirect examination as to another conversation with him.

Id.—Refreshing Memory of Witness—Harmless Ruling.—Where passages read to a witness from his testimony taken at the preliminary examination were permitted to be - read by the district attorney for the purpose of refreshing the memory of the witness, the ruling, if deemed erroneous, was harmless, where it appears that the passages read could not have prejudiced the accused.

Id.—Cross-Examination of Defendant—Question as to Conviction of Eelony—Negative Answer.—Upon the cross-examination of the defendant, a question of the district attorney as to whether he

p. 304

had been convicted of a felony could not, if improper, have done the defendant any harm, where the question was answered in the negative.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order denying a new trial. William P. Lawlor, Judge.

The facts are stated in the opinion.

M. Walter Dinkelspiel, J. M. Mannon, Jr., and Benjamin I. Block, for Appellant.

U. S. Webb, Attorney-General, and J. C. Daly, Deputy Attorney-General, for Respondent.

The appellant, with one Gerard, was convicted of burglary; and appeals from the judgment and from an order denying his motion for a new trial. The only points made by his counsel are: 1. Misconduct of the district attorney on the trial prejudicial to the accused; 2. That the district attorney was permitted on the trial to read from the testimony of a witness given at the preliminary examination for tho purpose of refreshing his memory; and 3. That a witness who had testified as to a conversation with the defendant Gerard was permitted on redirect examination to testify as to another conversation.

These objections, with perhaps one exception, are of a trivial character. As to the last point, the matter was within the discretion of the court. (People v. Benc, 130 Cal. 165 .) As to the second—if there was error—there was nothing in the passages read to the witness from his previous testimony that could have prejudiced the accused. As to the remaining point (under which there are several specifications) we see nothing reprehensible in the conduct of the district attorney, unless it was in asking the defendant when testifying as a witness on his own behalf whether he had not been convicted of a felony. And as to this it is unnecessary to express an opinion, as it is clear that the question—which was answered in the negative—could have done the defendant no harm.

We advise that the judgment and order appealed from be affirmed.

Chipman, C., and Harrison, C., concurred.

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For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed.

McFarland, J., Henshaw, J., Lorigan, J.