People v. Marsiglia

CRAIG, J.

The defendant was convicted of the crime of robbery and also of the crime of rape. The cases were consolidated and tried together. The appeal is taken from the judgment and order denying motion for new trial. On the night of February 17, 1920, it was charged that Marsiglia and his two codefendants, Mike B. Gonzales and Frank Macchiaroli, at the point of revolvers, held up and robbed Leon Esquerro and Marie Gracienne and committed the crime of rape against Marie Gracienne. On the trial B'squerre and Marie Gracienne testified to the facts constituting the offenses and a written confession signed 'by all three of the defendants was introduced in evidence. The defendant Marsiglia alone appeals at this time.

[1]

Appellant has made three assignments of error. In the first two it is asserted that the court erroneously permitted the prosecution to ask “leading, suggestive, and impeaching questions.” The questions complained of are not pointed out, and under such a circumstance the record is not in such a condition as to justify a consideration of these assignments of error upon appeal.

(People

v.

McLean,

135 Cal. 306, [67 Pac. 770];

People

v.

Cebulla,

137 Cal. 314, [70 Pac. 181];

People

v.

Woon Tuck Wo,

120 Cal. 297, [52 Pac. 833].)

[2]

However, from the discussion in appellant’s brief and a careful perusal of the record we conclude that the rulings complained of were those permitting the prosecuting attorney to ask of certain witnesses for the prosecution questions concerning testimony given by them at the preliminary examination. This was done in connection with the witness Marie Gracienne and also the witness Esquerre. Section 2052 of the Code of Civil Procedure provides: “A witness may alsp be impeached by evidence that he has made, at

[387]