95 P. 172 | Cal. Ct. App. | 1908
Defendant was informed against for the crime of grand larceny, and by the information also accused of a previous conviction of burglary. He confessed the previous conviction and pleaded not guilty to the charge of grand larceny.
Upon the trial of the offense charged the jury returned a verdict of guilty, and the defendant was sentenced to imprisonment in the state prison for the term of seven years.
He appeals from the judgment, from an order of the trial court denying his motion for a new trial, and from an order of that court overruling his motion in arrest of judgment.
The first point made on the appeal is that the sentence imposed (seven years) is less than the minimum term of imprisonment provided by the statute (Pen. Code, sec. 666) in cases of conviction of grand larceny after a previous conviction of burglary (ten years), and therefore void. As said in In re Reed,
The application of such a rule to the case at bar would result in inflicting a penalty upon the defendant for appealing *603
from the erroneous action of the trial court. This is not the policy of the law, which appears to be that where a defendant complains of an error in his own favor, such error will not be corrected to his detriment. For instance, where a verdict was set aside and a new trial granted by the trial court on the ground that the verdict was too favorable to the defendant, the supreme court reversed the order and directed the trial court to proceed to pronounce judgment on the verdict rendered. (People v. Muhlner,
The defendant was a witness upon his own behalf, and the district attorney was permitted, against objection, to ask him, on cross-examination, if he had ever been convicted of a felony. This is assigned as error and a violation of the provisions of section
It is clear that it was not the intention of the legislature, by the re-enactment of section
The refusal of the trial court to exclude the witness Wright from the courtroom with the other witnesses, at the request of the defendant, was the exercise of a proper discretion upon the part of the court, no prejudice from its action being shown. The exclusion of the witnesses for prosecution at the request of defendant is not an absolute right in all cases, but rests in the sound discretion of the court (People v. Sam Lung,
In presenting as error the court's refusal to give certain instructions requested by the defendant, quite a number are mentioned, but no reasons are assigned or argument presented why the action of the court was error. One alone (No. XX) is specifically referred to. This instruction is open to the objection, so often before the court, that it singles out the defendant as a witness to call especial attention to the weight and defects of his testimony and to declare exclusive rules by which his testimony alone is to be considered. It, in effect, instructs the jury that however unworthy of belief they may find the defendant, they must give some weight to his testimony. This is directly in conflict with the rule of evidence that the jury are the sole and exclusive judges of the weight of the testimony and the credibility of the witnesses, which was given in another instruction by the court. The refusal of this instruction was not error. (People v. Winters,
Many of the other instructions refused were clearly duplicates of those given by the court, and some were open to the same objection as No. XX, and the court properly refused to give these. If there is any reason why the action of the trial court in refusing to give the other instructions asked by defendant was error, it has neither been specified in the record nor presented in the briefs filed. Nothing being urged and no suggestion made why the trial court's action was erroneous, it is not necessary for us to consider these instructions.
The attempted appeal from the order denying defendant's motion in arrest of judgment is ineffective, as no such appeal is authorized by the code or our system of practice. (People v. Lonnon,
Under the latter head, it is contended that the evidence does not establish an exclusive possession of the stolen property by defendant, and that proof of possession is not alone sufficient to sustain a conviction of larceny. The latter proposition may be conceded as a question of law, but it has no application to the facts of the case at bar. The evidence for the people, if true, sustains the verdict in every respect. Its truthfulness was a question for the jury, and this court will not disturb their finding in this regard.
No prejudicial error appearing, the judgment and order denying motion for new trial are affirmed.
Allen, P. J., and Shaw, J., concurred.