People v. Fitzsimons

[683]

SHINN, P. J.

In an amended information appellant was charged with the crime of grand theft, in violation of section 487, paragraph 1, of the Penal Code. Three prior felony convictions were alleged in the information. Appellant was arraigned and pleaded “not guilty” and denied the prior convictions. Appellant later admitted a prior conviction of forgery and the other priors were stricken from the information. After a trial by jury in which appellant was represented by a deputy public defender, he was found guilty as charged and sentenced to prison. By private counsel he appeals from the order denying his motion for new trial and from the final judgment.

Appellant was an employe of the San Gabriel Valley Supply Company owned by Walter A. Meyer which dealt in the sale and rental of floor polishing machines and equipment. Ten of the floor machines were found to be missing from the inventory. In the trial appellant acknowledged that he had sold the machines and had collected the amounts for which they had been sold but claimed that he had been authorized to sell them and receive such money by a Mr. Menefee, the store stock control manager who was the father-in-law of Mr. Meyer. His defense was that he had paid all the money, less his commissions to Mr. Menefee, who had died some time before appellant’s arrest.

Appellant’s only contention is that he was denied a fair trial because of the misconduct of the prosecuting attorney in the questioning of witnesses. He claims, first, that the prosecuting attorney was guilty of misconduct when he brought out on redirect examination of Mr. Meyer the possibility that the appellant had suffered two prior theft convictions and was presently on probation. This incident requires a preliminary explanation. The prosecutor had produced records of defendant’s conviction of forgery in Los Angeles County in 1954, which defendant admitted. Also produced were records from the Colorado State Penitentiary for the purpose of proving the two former convictions which were not admitted by appellant. In the absence of a showing that the convictions in question were provable felonies, the court declined to admit the evidence when it was offered and requested that counsel furnish authorities on the point. Nothing was submitted and, as previously stated, the allegation as to these two convictions was stricken.