People v. Goodman

Opinion

STONE, P. J.

This appeal is from a conviction of murder of the second degree. On the morning of the day they were to marry, appellant shot his common law wife with a . 12-gauge pump shotgun. There were no eyewitnesses to the shooting, which appellant contends was accidental. He said he did not know the gun was loaded, that just as he pulled the trigger the victim told him it was loaded but it was too late. At another time he said the gun slipped and started to fall, and as he grabbed for it, he jerked the gun and it went off, killing her.

Appellant’s first point is that the California rule of evidence which permits a defendant who testifies to. be impeached by proof of a prior felony conviction (Evid. Code, § 788) violates the due process requirement of both federal and state Constitutions. He presents a learned dissertation, quoting legal writers and citing cases from other jurisdictions to the effect that the practice is unfair and should be eliminated or at least qualified. However, the California Supreme Court has considered this question a number of times, uniformly holding that a defendant who testifies may be impeached by proof of a prior felony conviction, and that such impeachment does not offend the due process clause of either the federal or the state Constitution.

(People

v.

Schader,

71 Cal.2d 761, 773 [80 Cal.Rptr. 1, 457 P.2d 841];

People

v.

McClellan,

71 Cal.2d 793, 809 [80 Cal.Rptr. 31, 457 P.2d 871];

People

v.

Roberts,

65 Cal.2d 514, 522 [55 Cal.Rptr. 412, 421 P.2d 420].)

[708]

Next, it is asserted that the trial court committed reversible error by giving the general approved instruction on malice aforethought, former CALJIC 301 (Rev.).