People v. Berry

CONREY, P. J.

The defendant was convicted on six counts, being all of the counts of the information; three burglaries, two robberies and one grand theft. Also, it was charged that before the commission of said several offenses the defendant had been convicted of four other felonies, occurring severally in the states of Idaho, Colorado and Texas, and in California, and that he had served terms of imprisonment therefor. The defendant admitted the former conviction and imprisonment in California and denied the others. At the trial the ■ prosecution was unable to complete its proof of said former convictions not admitted, and particularly was unable to prove that this defendant served

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any term of imprisonment under said alleged convictions in Idaho, Colorado and Texas or either of them. Accordingly the jury, in conformity with the court’s instructions, found in favor of the defendant on said charges of former conviction.

The offenses charged in the information in the present ease consisted of a burglary committed on the fourteenth day of December, 1930, and a robbery in connection therewith; a second burglary committed on the" same day and the crime of robbery in connection therewith; and the crime of burglary committed on the twenty-ninth day of November, 1930, and the crime of grand theft in connection therewith. On conviction of these several crimes judgment was pronounced by the court, the several sentences to run concurrently. He appeals from the judgment and from the order denying his motion for a new trial.

The grounds for appeal are stated under four points, viz., “That it was prejudicial error to mark the gun and exhibit the same to the jury.” “That the court erred in not permitting counsel to pursue the line of questions which would have tended to show the bias of the witness McGuire.” “That the verdict was contrary to the law and the evidence.” “That it was highly prejudicial and error to file the amended information against the defendant and appellant charging priors which could not be proved and established. ’ ’

There is practically no merit in any of these points. (1) It doeg not appear that the amended information was not filed in good faith, or that it was not filed in expectation of proving the same. (2) There is abundant evidence directly sustaining the charge that each of the several crimes was committed and that the defendant was guilty thereof. (3) When the gun was produced in connection with the testimony of a witness, the testimony failed to identify it as a gun used in the commission of any of the offenses. The gun was not offered or admitted in evidence, and the defendant did not object when it was “marked for identification”. Such marking is customary and appropriate in the course of a trial, not to bring the thing into the record as evidence, but merely to identify it as the very thing mentioned in the record and not at