People v. Jeans

FINCH, P. J.

The defendant was charged with the crime of murder and was convicted of manslaughter. He has appealed from the judgment and the order denying his motion for a new trial

The evidence is amply sufficient to support the verdict and judgment and appellant makes no contention to the eon

[466]

trary. In appellant’s brief it is said: “Two points are made on the appeal, viz.: 1. That the court erred in refusing to give an instruction requested by the defendant; and 2. That the district attorney was guilty of misconduct prejudicial to the defendant.”

The instruction referred to reads as follows: “I charge you that every witness is presumed to speak the truth. This rule applies to the testimony of the defendant if he takes the stand in his own behalf as well as to that of any other witness. You are instructed that his testimony is not to be disregarded or discredited or entitled to less weight for the reason that he is the defendant and stands charged with a criminal offense. He is entitled to the same privileges and his testimony is to be weighed by you with the same care and by the same rules as that of any other witness.” The proposed instruction was properly refused for the reasons stated in

People

v.

Brown,

62 Cal. App. 96, 103, 104 [216 Pac. 411].

Most of the statements made by the district attorney in his argument to the jury and now claimed by appellant to constitute prejudicial misconduct were within the bounds of legitimate argument, and counsel for defendant made no objection thereto at the time, and did not assign them as misconduct or ask the court to instruct the jury to disregard them. The most serious of the statements to which no objection was made at the time was that “it will not be safe if you permit a defendant, a negro, to come in and slaughter a white man.” The defendant is a negro and the remark of the district attorney, standing alone, would appear to be an appeal to race prejudice, but, almost immediately thereafter, the district attorney said: “I want to be fair and I don’t ask anything outside of your oath, I don’t want it. I don’t ask you to be unjust to any person and neither do I ask anything against a defendant because he is a negro. I believe one man is as good as another regardless of race or creed or color.” The district attorney referred to the prevalence of crime in this country as compared with other countries and to the fact that but few murderers are hanged, and then said: “And what do you do when you do convict them