People v. Turner

GRAY, P. J.

The defendant stands convicted of the larceny of fifty dollars from the person of one Smith. The evidence tended to disclose something very much in the nature of a highway robbery. The defendant appeals from the judgment, and from an order denying him a new trial, and

[421]

his principal contention is, that the court erred in permitting the prosecution to prove certain hearsay statements identifying defendant as having taken part in the larceny charged. The question arises this way: The conviction of defendant depends almost altogether upon the testimony of the complaining witness Smith, he being the only witness who identified the defendant as assisting in the robbery. To impeach and weaken the force of Smith’s testimony in this regard, the defendant called the city marshal of Bakersfield, Ed Tibbet, who testified that about two hours after the alleged larceny Smith had, in substance, declared that he could not identify any of the parties that robbed him. The defense also called a brother of Ed, Bert Tibbet, who testified that in the evening of the same day of the robbery, or larceny, Smith had expressed himself as unable to identify the defendant as being concerned in the robbery. Smith had been intimately acquainted with the defendant for a long time before the robbery. Thereafter, the prosecution was permitted to show . on the cross-examination of Bert Tibbet, and by the testimony of James MeKamy, a constable, that on the day following the larceny, the complaining witness did state, in their presence, that the defendant was one of the parties who robbed him. The prosecution was also permitted to show by the testimony of MeKamy that Smith subsequently stated, in the presence of defendant and to him, that he (the defendant) was one of the persons concerned in the robbery, and that defendant denied it and also denied having been with Smith at the Palace dance hall in the neighborhood of three or four o’clock, just previous to the alleged larceny.

In the foregoing we think the court erred to the prejudice of the defendant. The impeachment of a witness by showing that he has made statements in conflict with his present testimony cannot be met by the party calling such witness with evidence that at other and different times the impeached witness has made statements in harmony with his present testimony, and to permit the introduction of testimony of this latter character is prejudicial to the party against whom it is received.