People v. Parkinson

THE COURT.

Appellant has filed a motion and supporting affidavit for augmentation of the record on appeal, by adding thereto:

“(1) Opening statement of counsel for the prosecution;

“ (2) Closing statements of counsel for the prosecution;

“(3) Closing statements of counsel for the defendant;

“(4) Trial court’s instructions to the jury;

“ (5) Complete transcript of all motions, together with the trial court’s rulings thereon, made in open court, or in chambers, at any time prior to, and during trial;

11 (6) Appellant further moves that a copy of the transcript of preliminary hearing previously held in Municipal Court be made a part of the record on appeal herein;

“(7) That all evidence—letters—papers—books—‘tapes’— which were seized and suppressed by the counsel for the prosecution—be ordered by this court to be made a part of this action in appeal.”

In support of his request for a transcription of the

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argument to the jury by counsel for the People and his own attorney, appellant states that he expects to prove thereby that references were therein made to the fact that he had “previously been convicted of a crime and was therefore an ex-criminal and ex-convict, without, however, specifying the nature of said person’s offense or elieitating any of the details thereof.” However, an examination of the reporter’s transcript reveals that throughout the trial, any reference to appellant’s prior convictions was made outside the presence of the jury, and in the absence of any showing by appellant as to what reference was made thereto by counsel in their respective arguments to the jury, we are not disposed, under the state of the record herein, to order a transcript of the arguments of counsel for the People and appellant transmitted to this court.

In support of his request for the instructions given to the jury, appellant states that he expects to show thereby that the jury was instructed “that in the event of any doubt as to the guilt or innocence of the defendant, such doubt should be resolved in favor of the People and against the defendant, and a finding of guilty as charged should thereupon be returned by said jury.” We have examined the instructions contained and filed in the original file of the superior court and find therein no such instruction. On the contrary, the court specifically instructed the jury that “a defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to an acquittal.” The court then correctly advised the jury as to the definition of reasonable doubt.