People v. Duncan

CONREY, P. J.

The defendant in this action was accused of the crime of murder and found guilty of manslaughter, for which he has been sentenced to a term of eight years in the state prison- at Folsom. He appeals from the judgment and from an order denying his motion for a new trial.

There are no briefs. The present attorney for appellant was substituted in the place of the former attorneys a few weeks before the appeals came on for hearing, and the case has been presented upon his oral argument.

No attack is made upon the sufficiency of the evidence, which shows that one J. F. Toolen, a police officer, came to his death by means of a shot fired from a revolver by the defendant.

Appellant’s first proposition' is that the defendant was prejudiced by certain alleged misconduct of the district attorney, it being claimed that that officer asked an improper question for the sole purpose of prejudicing the defendant in the minds of the jurors. Defendant’s objection to the question was sustained by the court, and we cannot say that the district attorney was not acting in good faith. The record does not show any persistent course of action by the dis

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trict attorney such as has sometimes been held to constitute prejudicial misconduct.

Appellant next complains of the court’s refusal to give two requested instructions. The record does not show by whom those instructions were requested, but we will assume that they were proposed by defendant’s counsel. The subject matter of those instructions was covered correctly by the court in other instructions given to the jury, and the refusal to give them in the precise form requested by the defendant did not deprive him of any right.

At the oral argument appellant’s counsel suggested that the court erred in giving six of the instructions that were given. As to three of these, he stated no reasons why they were erroneous, and was unable to refer us to the pages of the clerk’s transcript where they would be found. Subsequently he sent to us a memorandum of the pages. In two of the three instances there are two instructions on each page, and we do not know to which instruction counsel referred. Solving the doubt in his favor, we have examined all of them without discovering any valid objection thereto.