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 pre-vious 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 оf 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 thе statute (Pen. Code, sec. 666) in eases 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 рenalty upon the defendant for appeal
*603
ing 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 judgmеnt on the verdict rendered.
(People
v.
Muhlner,
The defendant was a witness upon his own behalf, and the district attorney was рermitted, 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 sеction 1025 of the Penal Code, that “In case the defendant pleads not guilty and answers that he has suffered the previous conviction, the charge of the previous conviction must not be read to the jury,
nor alluded to on the trial.”
The previous conviction charged in the information was a specific “burglary,” while the question of the district attorney was addressed to a “felony” gеnerally; so that it can hardly be said that the conviction which defendant admitted by his plea was necessarily the same felony referred to by the district attorney in his question. But if it be conceded that this distinction cannot be drawn, it was not error to permit the question to be asked. Prior to the re-enactment of section 1025 in 1905 it was held that the direction in section 1093 that “the clerk in reading it (the indictment or information) shall omit therefrom all that relates to such previous conviction,” did not make it error to ask this question of defendant upon crоss-examination where he had offered himself as a witness in his own behalf.
(People
v.
Arnold,
It is clear that it was not the intention of thе legislature, by the re-enactment of section 1025, any more than it was by the enactment of section 1323, to give to a defendant the opportunity of making any statements upon his direct examination that he might choose, and preclude the prosecution from testing the truth or falsity of such statements, or to prevent the people from impeaching the defendant’s testimony by the same rules applied to the testimony of other witnesses.
(People
v.
Gallagher,
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 exclusiоn 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, sо 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 exclusivе 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, аnd 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 bеen 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 hеad, 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 he 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.