People v. Garrett

CRAIG, J.

The defendant appeals from a judgment of conviction. He was charged by information with the unlawful sale of intoxicating liquor, the offense being also designated as “the crime of high misdemeanor.” A number of alleged errors of the trial court are assigned as grounds for reversal. Prom the view we take of some of them it will be unnecessary to consider others.

During the trial the witness Matthews, called by the prosecution, and while under cross-examination, was asked, reference being made to the defendant: “You have seen him at other times, have you?” The witness answered: “Yes, I have seen him out there before and bought liquor from him.” Defendant’s counsel moved to strike the answer as not responsive, and the court denied the motion, saying: “You brought it out on cross-examination.” Of course, the question did not call for that part of the answer which indicated that the defendant had been guilty of other offenses of the same character as the one for which he was on trial. All of the answer except the word “Yes” should have been stricken out, and the denial of the motion was error.

The following instruction was offered by the defendant, and refused:

“I further instruct you that if this evidence, which is for the purpose of establishing an alibi, is sufficient in your minds to create a reasonable doubt whether defendant was present at the place where the crime charged is alleged to have been committed, or at some other place where he could

[79]

not have committed it, then you should give defendant the benefit of such doubt and acquit him.”

This instruction was a proper one, and contained a correct statement of the law.

(People

v.

Winters,

125 Cal. 325 [57 Pac. 1067].) It should have been given, for where evidence tending to prove an alibi is given the defendant is entitled to a specific instruction dealing with that issue.

(People

v.