People v. Ollinger

CRAIL, P. J.

The appellant, having been convicted in 1933 of the crime of grand theft, now takes this appeal from the judgment of conviction which was subsequently entered in 1938.

Following his conviction in 1933, and before pronouncing of judgment and sentence, appellant applied for, and was granted probation for a five-year period, the court ordering all proceedings to be suspended until termination of the period of probation. Before the five-year period would have terminated, appellant violated the terms of his probation, the judgment from which this appeal is taken was entered and appellant sentenced to imprisonment.

[382]

The sole point which we are called upon to decide is whether or not the trial court committed prejudicial error in refusing to give to the jury certain instructions requested by the appellant, covering the law relating to character evidence. No other instructions were given on this point. In this respect, it should be noted that the charge of grand theft was substantiated by evidence that appellant either embezzled certain funds, or by means of false or fraudulent representations or pretenses obtained certain funds. Appellant introduced the testimony of several character witnesses to the effect that his reputation for truth, honesty and integrity in the community in which he lived, was good. No evidence of appellant ’s bad reputation for truth, honesty and integrity was introduced by the prosecution, so that the sole evidence before the jury as to appellant’s reputation for these traits was favorable to appellant—there was no conflict. The requested instructions are not set forth herein for the reason that, though correctly stating the law applicable to character evidence and therefore erroneously refused by the trial court, we believe such error insufficient to justify a reversal.

As indicated before, the only evidence before the jury on the point involved herein, was that of appellant’s good character. The jury was instructed that it was the sole judge of the weight of the evidence, that it was to determine all questions of fact and that the witnesses were presumed to speak the truth. Though the court failed to give the requested instructions, or any covering that subject, we must assume that the jury, under the general instructions above noted, considered the character evidence in arriving at its verdict of guilty.