People v. English

ADAMS, P. J.

Appellant was convicted of robbery of the second degree, and his motion for a new trial was denied. He has appealed contending that the trial court erred in allowing certain questions to be asked of him on cross-examination, and in denying his motion for a new trial.

On direct examination English testified that he had been in the army and honorably discharged. On his cross-examination the following questions were asked and answers given:

"The District Attorney: Ton say you were discharged from the army? A. Tes sir.

Q. What kind of a discharge did you have ?

A. Just honorably discharged.

Q. What is the letter marking on it ?

Mr. Manwell: Object on the ground it is incompetent, irrelevant and immaterial. . . .

[672]

The Court : I will permit it.

The District Attorney: Do you. know the classification?

The Witness : One C.

Q. The classification of your discharge ? A. Section 8.

Q. That’s all. Mr. Manwell, will you stipulate section eight discharge is a mental discharge.

Mr. Manwell : I won’t stipulate to anything of the kind. I don’t know.”

Subsequently the prosecution called a witness who was asked to explain the meaning of a section 8 discharge, but upon objection by appellant the witness was not permitted to answer. While no testimony was presented on this subject the report of the probation officer presented to the court on motion for probation shows that defendant’s discharge under section 8 was for “Inaptness or undesirable traits,” the discharge further providing that reenlistment or reinduction could only be accomplished by permission of the Adjutant General.

Appellant here contends that by the foregoing examination the district attorney was permitted to “assassinate” and “east a slur” upon appellant’s military record; that he insinuated that the discharge was a dishonorable one, and that prejudicial error has resulted. We do not agree that the information elicited by the questions asked appellant by the district attorney had the effect of assassinating or casting a slur upon appellant’s military record or of showing that his discharge was a dishonorable one. The most that can be said was that it indicated that he had been discharged for a mental condition that rendered him unsuited for military duty; that he did not have an unqualified “honorable discharge” as claimed. Where, as here, defendant relies upon an honorable discharge merely to create a favorable impression upon a jury, we cannot say that it is prejudicial error for the prosecution to show the true nature of his discharge, particularly where no misconduct but only the mental condition of defendant is shown as ground for his discharge.