People v. Brain

SPENCE, J.

Defendant was charged in two separate in-formations. The first information charged grand theft and a prior conviction of a felony. The second charged possession of a blackjack. Defendant entered a plea of not guilty in each instance but he admitted that he had suffered the prior conviction. The informations were consolidated for trial and, upon a trial by jury, verdicts of guilty were returned upon both informations. Defendant’s motion for a new trial was denied and he was sentenced to state prison upon the charges, the sentences to run concurrently. He appeals from the judgment of conviction and the order denying his motion for a new trial.

During the trial, the district attorney introduced evidence of a conversation had with the defendant shortly after his arrest. In that conversation, defendant had stated among other things that he had been previously convicted of a felony, to wit, robbery. The introduction of this evidence was assigned as misconduct. The court struck out “the question and answer with reference to the prior conviction” and instructed the jury to disregard that portion of the testimony. Thereafter, defendant took the witness stand in his own defense and, upon cross-examination, he answered that he had previously been convicted of a felony, to wit, robbery in Ventura County in 1925. In the argument to the jury, the district attorney referred to the right of the jury to consider the previous conviction of a felony in weighing the testimony of the defendant.

Appellant states three points in his brief: (1) “Misconduct of the district attorney in alluding to admitted prior conviction of felony”; (2) “Error of the court in admitting in evidence extra-judicial admissions of prior conviction of

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felony”; and (3) “Misconduct of district attorney in misrepresenting defendant’s extra-judicial statement as constituting a confession”. The third point is not touched in any manner in the brief. There is no reference to the transcript showing that the district attorney made any such representation and there is neither argument nor citation of ■authority on the subject. We may, therefore, treat the third point as abandoned on this appeal.

We find no reversible error in connection with the first and second points. While section 1025 of the Penal Code provides that under the circumstances before us, “ . . . the charge of the previous conviction must not be read to the jury, nor alluded to on the trial”, a defendant, who offers himself as a witness waives the privilege accorded by that section