People v. Cardinal

[836]

WARNE, J. pro tem.

*

The appellants were charged with grand theft and convicted of petty theft by a jury. They appeal from an order denying a new trial and the judgment.

Appellants, who were partners in a salvage business, admitted that they dismantled and sold as scrap a loading shovel which they were charged with stealing. They testified that they had purchased the shovel from a stranger who purported to be the owner thereof, and there was introduced into evidence a receipt bearing the signature of “W. H. Berry. ’ ’ However, Mr. Berry was not produced as a witness. All of the evidence shows that the shovel was of a value exceeding two hundred dollars.

Appellants, as ground for reversal, contend that the district attorney was guilty of prejudicial misconduct.

Appellant Gomez testified he is a Spaniard and used the name “Marino” in business to give the impression he was an Italian since “Gomez” sounds like a Mexican name. Over objection, the district attorney elicited his admission that he had told a deputy sheriff that he had used the name when he registered at a motel with a “girl friend” as he was a married man. Appellants assigned as error the injection into the case of evidence of appellant Gomez’ extramarital affairs. Appellants also charged prejudicial misconduct upon the part of the district attorney in asking appellant Cardinal, “Did you have any women living with you.”

Appellants argue that the lack of evidence that the property which they were charged with stealing was of a value less than two hundred dollars “strongly indicates a ‘compromise verdict, ’ that the jury being in serious doubt as to the commission of grand theft by the defendants and yet prejudiced by the District Attorney’s misconduct, decided that two such sexually Immoral men should not go off scotfree and thus returned a verdict of petty theft.”

Gomez was only asked on direct examination, “Have you used the name Marino in your business for sometime?” We feel that the district attorney went far outside the scope of permissible cross-examination in bringing out the fact that Gomez also used the name Marino for an extramarital purpose. What Gomez did in this respect was foreign to the case at issue and certainly cannot be justified as impeachment. As stated in