People v. Hogan

COOPER, P. J.

The defendants were jointly accused by the information of the crime of robbery. Defendant Hogan was also charged with two prior convictions of petty larceny, each under an

alias;

defendant Conwell with a prior conviction of petty larceny and also with a prior conviction of burglary, each under an

alias;

defendant McLaughlin with a prior conviction of robbery, and defendant Purcell with a.

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prior conviction of grand larceny, and also with a prior conviction of burglary under an

alias.

They each pleaded guilty to the prior convictions as charged, but not guilty to the charge of robbery as set forth in the information. They were each found guilty, and this appeal is from the judgment and the orders denying each of their motions for a new trial.

The sufficiency of the evidence to support the verdict is not attacked. No error is claimed as to the instructions in any respect: The only question raised is as to the ruling of the court on certain questions asked for the purpose of impeaching the prosecuting witness Pelphes as to certain statements which it is claimed he made at other times contrary to his statement as a witness while on the stand.

Pelphes testified on behalf of the prosecution fully as to the circumstances and facts connected with the robbery. In cross-examination no question was asked him as to any statement made by him at any other time or place inconsistent with the testimony he had given. When the attorney for defendant offered evidence as to statements claimed to be inconsistent with the testimony of Pelphes, the objection of the district attorney was sustained upon the ground that no proper foundation had been laid by calling the witness’ attention to the circumstances of time, place and persons present, as required by the code. The defendants’ attorney then called Pelphes, not for the purpose of further cross-examination but as his own witness; and upon direct examination, as defendants’ own witness, Pelphes testified that after he returned to the house where he lived after he had been assaulted and robbed, he did not make “any loud statement in the hallway,” and did not say, “I have been robbed in Oakland,” nor “tried to wake up Mr. Andros”; nor “in a loud tone of voice ask for a doctor,” nor “ask for a policeman.” No questions were asked as to the persons present nor as to any person present, nor was the time fixed in any other way than the question concerning when the witness returned to the house after the assault. One Skurs was then called by the defendants’ counsel and asked: “Did you hear Pelphes make the statement on that morning ‘I have been robbed in Oakland’?” The court sustained the objection of the district attorney to this question on the ground that the defendant could not be allowed