80 P. 1030 | Cal. | 1905
Defendant was convicted of arson, and appeals from the judgment and from an order denying his motion for a new trial. There are no points and authorities or brief on behalf of appellant on file, and at the oral argument *602 his counsel did not contend that the evidence does not support the verdict or that the trial court erred in instructing the jury or in any respect other than in two rulings made in respect to the testimony of the witness J.W. Jewell. The building which appellant was charged with burning was occupied by him as a lodging-house and restaurant; and he had in it some personal property which he had insured a few days before the fire for five hundred dollars. This personal property was not injured by the fire, which was extinguished before any considerable damage was done; and the prosecution called the said witness Jewell, who testified that a few days after the fire he bought all his personal property from appellant for fifty dollars. Now, the argument of appellant's counsel is, that the court afterwards refused to allow him to prove the value of the property at the time it was insured, and thus remove the impression that it was insured for more than its value. But the record does not show any foundation for this argument. Appellant was not prevented from showing the value of the property at the time of the insurance. The appellant himself, as a witness, testified, over the objection of the prosecution, very fully as to the value of the property and that it had cost him nearly eight hundred dollars; and it was shown that the insurance agent had examined the property when he fixed five hundred dollars as its value. The witness Jewell, after testifying that he was a dealer in secondhand furniture, was asked by the prosecution to state: "What you paid for the property and how you arrive at the price — that is, your conversation with Mr. Helwig." He testified that he went to see Helwig and asked him what he would take for the property, and Helwig said fifty dollars, whereupon witness gave him the money and took a bill of sale. Then, on cross-examination, appellant's counsel asked him, "What do you consider the value of that property?" To this question the prosecution objected, but the objection was overruled, and the witness went on to testfy on the subject — saying that it was worth about one hundred dollars. After a number of questions by appellant's counsel and answers by witness, the latter was asked, "Could you buy them in the market for that price?" to which the district attorney objected that "It does not tend to prove value and is not cross-examination," and the objection was overruled. Afterwards the witness said: "Do *603 you mean could I go and purchase that same amount of goods new from some retail dealer?" and counsel for appellant said, "No, those goods second-hand, used, in the condition they were," to which witness said that he could. Thereupon, counsel for appellant said, "I wanted the original value," and then the court said, "Objection sustained." It is clear from this record that the objection to the testimony of the witness to the actual value of the property as second-hand furniture was overruled, and that the only question excluded was as to the "original value." Afterwards the appellant called the said Jewell as his own witness, and simply asked him the direct question, — referring to the said personal property, — "What is it worth new?" and the objection of the prosecution to the question that it was immaterial, irrelevant, and incompetent was by the court sustained. Upon these rulings of the court touching the testimony of the witness Jewell appellant bases his sole contention for a reversal of the judgment. But we do not think that these rulings constitute good ground for reversal. The question asked Jewell when he was a witness for the prosecution was not proper cross-examination. When he was a witness for appellant the sole question asked him was as to the value of the property when new. The issue was the value of the property as second-hand property at the time of the insurance — not its value when new. It may be that where an adverse witness has testified to the value of second-hand property it would be proper to ask him on cross-examination what its value was when new, for the purpose of testing his general knowledge of the subject; but it was not proper as an original and isolated question asked by appellant of his own witness. Moreover, taking the whole case together, it is evident that the said rulings of the court as to the testimony of the witness Jewell, even if they could be considered as erroneous, were not of sufficient importance to have been prejudicial to appellant, or to afford just grounds for a new trial.
The judgment and order appealed from are affirmed.
Henshaw, J., and Lorigan; J., concurred. *604