People v. Alfonso

FINCH, P. J.

The information charges that the defendant, on the 20th of July, 1925, “did wilfully and unlawfully operate and drive an automobile along and upon the public highway of the State of California, while under the influence of intoxicating liquor.” He was' convicted and this appeal is from the judgment and the order denying a new trial.

The defendant’s automobile collided with and seriously damaged an automobile owned by one witness for the prosecution and being driven, at the time of the collision, by another witness. Both of these witnesses testified that the defendant was drunk at the time. Several other witnesses, who were at the scene of the collision shortly after it occurred, testified that they saw no indication that the defendant was intoxicated. Two of these witnesses were in such immediate association with the defendant as to enable them

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to determine his condition as accurately as could the witnesses for the prosecution. The defendant testified that he was not under the influence of liquor, that he “did not have a drink that night at all,” and that he had not indulged in the use of intoxicating, liquor for three years. Under the pretext of contradicting the .defendant’s statement that he had not used intoxicating liquor for three years, and over proper objections by his counsel, the defendant was cross-examined as follows: “Q. On March 17th, 1924, you were charged with possessing liquor in your place of business there. What was that for? ... A. They never find nothing in the house, they find it in the yard. . . . Q. . . . Isn’t it a fact that you were charged with the illegal possession of intoxicating liquor at the time and place referred to in the' preceding question, before Judge J. T. Norman, . . . and pleaded guilty to that charge? ... A. No. . . . Q. I will ask you if on the 9th day of December, 1924, you did not have intoxicating liquor at your , place of business? ... A. Yes, I had a bottle then. . . . Q. On the 3rd day of February, 1925, did you have it in your possession then? A. No. Q. I will ask you if on the 26th day of July, 1925, whether you had intoxicating liquor in your possession? A. No, sir. Q. I submit that comes as a surprise and ask you if on the 28th day of July, 1925, you were not charged with having intoxicating liquor in your possession, before J. T. Norman, justice of the peace, . . . and pleaded guilty to that charge? ... A. I pleaded guilty about t&e 22nd or 2'3rd. Q. Of what? A. July, I think so. ... Q. I will ask you how many times since you have been living at Merced Falls have you pleaded guilty to the illegal possession of intoxicating liquor? ... A. Four times.” During the closing argument of the district attorney, the following occurred: “Mr. McCray (district attorney) : . . . Are you going to believe the testimony of a bootlegger from Mariposa County— Mr. Hale (counsel for defendant) : We object to that, if the court please. There is no evidence that this defendant was a bootlegger. Mr. McCray: No evidence; from his own lips he says he has been convicted four times. If that doesn’t constitute bootlegging— Mr. Hale: We ask the court to instruct the jury to disregard the remarks of the district attorney and assign them as prejudicial error.” The court did not instruct