People v. Williams

SPENCE, J.

Defendant was duly convicted of the crime of robbery in the second degree. He appeals from the judg

[234]

ment of conviction and the order denying Ms motion for a new trial.

On Jannary 28, 1933, an establishment known as a “ clnb ’ ’ was robbed by a man wearing a black mask made out of a piece of sock. Defendant had frequently visited the place prior to the robbery. Shortly after the commission of the offense he was found in a near-by apartment. He was positively identified by three witnesses to the robbery and the prosecution also introduced evidence of circumstances pointing to his guilt. Defendant took the stand and attempted to prove an alibi. Among the first questions asked of Mm by his own counsel was one relating to his prior conviction of a felony, which he admitted.

The only questions raised on this appeal relate to the giving and refusing of certain instructions by the trial court. Appellant first complains of the giving of what may be termed a stock instruction relating to the manner of impeaching a witness. The portion of the instruction complained of was given in the identical language of section 2051 of the Code of Civil Procedure. There was no error in giving this instruction.

(People

v.

Egan,

91 Cal. App. 44, 49 [266 Pac. 581] ;

People

v.

Vanderburg,

67 Cal. App. 217, 219 [227 Pac. 621].) While it is true as pointed out by appellant that there was no evidence of the general reputation of appellant for truth, honesty or integrity, said instruction was not directed at the testimony of any particular witness nor at any particular type of impeachment. It did not assume, as contended by appellant, that evidence of appellant’s “bad reputation existed in the record”.

Appellant also claims that the trial court erred in refusing to give the following proposed instruction: “The court instructs the jury that evidence which is adduced at the trial of a case of this character by questions asked for the purpose of impeaching any witness (or evidence of contradictory statements made by such witness for the purpose of impeachment), cannot be received by you or applied by you in this case as tending to establish the truth of the matter contained therein, but may alone be considered in so far as it has a tendency to affect the credibility of the witness sought to be impeached thereby. The prosecution in this case cannot prove tb at the defendant in this ease is guilty by evidence which impeaches any witness.” The record shows