People v. Peeples

KERRIGAN, J.

The defendant was charged by information with the crime of grand larceny, it being alleged that he stole an automobile of the value of one thousand two hundred dollars. The appeal is from the judgment of conviction and from an order denying his motion for a new trial.

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The only serious point in the case is as to certain conduct of the district attorney during the trial claimed by the appellant to amount to serious misconduct, and to have gravely prejudiced him in the minds of the jury. In his opening statement the district attorney stated that he would prove that certain parts of the automobile in question had been changed, and that the parts substituted for them had been taken from another automobile which also had been stolen. Eepeatedly during the trial the district attorney in questions propounded by him to witnesses incorporated therein references to other stolen automobiles. If he desired to show—as doubtless he did—that parts and accessories of other automobiles had been substituted for parts of this automobile for whatever material bearing such testimony would have on the case, he of course was warranted in doing so; but we can perceive no good reason—indeed no excuse—for referring to the other automobiles as having been feloniously taken from their owners. Moreover, after the first reference to “other automobiles which were stolen,” when the court, upon objection by counsel for the defendant, instructed the jury that such reference in the terms- employed was improper, it was the plain duty of the district attorney to refrain from again offending in that regard. This he did not do.

In his closing address to the jury, referring to a portion of the argument of defendant’s counsel, wherein the latter dwelt at length upon the hardship of taking his client from the bosom of his family and sending him to the penitentiary, the district attorney made a remark to the effect: “I will make the same agreement that I did the other day. If the defendant is convicted I will consent to his case being referred to the probation officer to look up his past record and to see if he is entitled to probation.” This is a statement that the district attorney had no right to make. It is possible it was made, as claimed by the defendant, for the purpose of facilitating a conviction of the defendant, by reason of the jury supposing that leniency would be subsequently extended to him. However, it is a matter of general knowledge that a person convicted of crime is entitled to apply for probation, which it is in the court’s discretion to grant irrespective of the attitude of the district attorney in reference thereto. In this case the counsel for the defendant immediately assigned the remark quoted as misconduct, whereupon the district at