People v. Gardner

Opinion

DRAPER, P. J.

Admissibility of appellant's prior conviction of was discussed out of the jury’s presence well before appellant testified. The court ruled that the crime of manslaughter tended to show only violence, and not lack of honesty.

(People

v.

Beagle,

6 Cal.3d 441 [99 Cal.Rptr. 313, 492 P.2d 1].) The judge stated expressly that it could not be used by the prosecution • to impeach appellant unless the latter’s

[561]

testimony on direct included assertions which it could rebut. On direct examination, appellant said

“I

don’t threaten people. I never threatened anybody,” and also testified “I am thirty some years old, and I never first thought about. . . committing any kind of crime against a person.” The charge against him here is that, by violence and threats thereof (striking the victim with his fists), he had compelled the prosecutrix to engage in acts of intercourse and sex perversion. His defense was that the acts were wholly consensual. Thus his statements were designed to aid his defense. It was only in response to this direct examination that the prosecution, on cross, asked him about his conviction of manslaughter of a woman in which he had used only his fists as weapons.

Appellant asserts error, relying on a Supreme Court decision.

(People

v.

Beagle, 6

Cal.3d 441 [99 Cal.Rptr. 313, 492 P.2d 1].)

Beagle,

however, turns upon the statute (Evid. Code, § 788) which permits an attack upon credibility of a witness by showing his prior conviction of a felony. As pointed out by

Beagle

(p. 452), this is the only exception to the rule which bars “evidence of specific instances of. . . conduct relevant only as tending to prove a trait of his character” as an element of credibility (Evid. Code, § 787). It may be conceded that, under