Viera v. Gordon

[701]

McCOMB, J.

From a judgment in favor of defendants in a trial before a jury in an action to recover damages for injuries resulting from a collision between plaintiff’s automobile and horses belonging to defendants, plaintiff appeals.

Facts: On January 13, 1950, plaintiff was driving his automobile in an easterly direction on Foothill Boulevard at about 11:15 p.m. when certain horses of defendants, which had broken out of their enclosure and were on the highway, were hit' by plaintiff’s automobile, causing plaintiff to lose control of the car with the result it struck an orange tree and plaintiff was injured.

During the course of plaintiff’s examination the following occurred:

“Q. Mr. Frank R. Viera, you were during the year 1951 in this County convicted of a felony, were you not,-

“Mr. Rinehart: If your Honor please,-

“Q. By Mr. Brewer: (Continuing)—of section 273d of the Penal Code, wife beating?

“Mr. Rinehart: We object to that as improper interrogation, and submit that the record will not so disclose. It was a misdemeanor.

“The Court: If it was a misdemeanor, counsel,---

“Mr. Brewer: No, it was a felony.

“Mr. Rinehart: Oh, no, it was a misdemeanor.

1 ‘ The Court: If the net result of the proceedings was that he was charged with a felony and that was reduced to a misdemeanor, then the question is improper.

“Mr. Rinehart: And we charge counsel with misconduct in presenting the matter in that manner. We think it is highly prejudicial. This man was not convicted of a felony, and we challenge the record.

“The Court: Do you have the record, Mr. Brewer?

“Mr. Brewer: It is a record of this court.

“The Court: Well, where is the record?

“Mr. Brewer: It is in the County Clerk’s Office.”