People v. Chapman

[855]

ADAMS, P. J.

Defendant Jack Chapman and his 17-year-oid son-in-law, Donald Larios, were charged, in an information filed in Tuolumne County, with three felonies, to wit: robbery while armed with a deadly weapon, assault with a deadly weapon, and assault by means of force likely to produce great bodily harm. During the course of the trial, and before the defendants had gone into their defense, the district attorney applied for a discharge of defendant Larios that he might be a witness for the prosecution. The application was granted, the trial proceeded against Chapman alone, and resulted in a verdict of guilty of the first and third charges, and of not guilty of the second.

On this appeal from the judgment which followed, Chapman asserts that his conviction was unfairly obtained in violation of the Fourteenth Amendment of the Constitution of the United States; that the dismissal of defendant Larios was made in violation of section 1099 of the Penal Code, and in violation of due process of law, and that the district attorney violated his duties under section 1099,

supra.

Appellant states that his main contention is that his conviction “was obtained under circumstances involving ‘a failure to observe that fundamental fairness essential to the very concept of justice’ . . . which cannot be denied a defendant in a criminal ease without violating his right to due process.” This contention is based upon an assumption that the jury was aware of the fact that Chapman had suffered two prior convictions. The record shows that two such priors were charged in the information, and that Chapman, on arraignment, admitted them. It is not contended that the charge of the previous convictions was read to the jury or alluded to on the trial (Pen. Code, § 1025); but appellant in his brief urges that the district attorney, before the trial, gave information to the “Stockton Record” that defendant had suffered such prior convictions, which statement was published in that newspaper about 10 days prior to the trial, and that during the deliberations of the jury they received information from one of their members that defendant had suffered such prior convictions, and that for those reasons the defendant was denied due process of law.

In his brief appellant sets forth what purports to be the article in the Stockton Record, which contains the statement: “According to District Attorney, Ted Vilas, Chapman has two prior convictions.” Accordingly, appellant, on his motion for a new trial, charged the district attorney with misconduct