People v. Philbon

COOPER, C.

The defendant was charged in the information with the crime of grand larceny, in having feloniously stolen and carried away, from the person of one Mrs. Glover, a purse and $20.80 contained therein. He was also charged

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therein with a prior conviction of grand larceny on the twenty-fifth day of October, 1887, under the name of James Roberts. He admitted the prior conviction of grand larceny, but pleaded not guilty of the offense charged in the information. He was, after trial, duly convicted of the offense charged, and thereupon sentenced to a term of twelve years in San Quentin. He made a motion for a new trial, which was denied, and this appeal is from the judgment and order denying the motion. It is not claimed that the evidence is insufficient to sustain the verdict; nor is there any alleged error as to the giving or refusing instructions. Certain alleged errors are argued, which we will notice in the order set forth in appellant’s brief.

1. It is claimed that the district attorney, during his argument to the jury, said: “There has been allusion to defendant’s children and aged mother, children and mother that are non-existent, for, gentlemen, he has no children and he has no mother,” and that such remark was prejudicial error. The only evidence we have that such remark was made appears in the affidavits of defendant’s counsel and of the assistant district attorney. The bill of exceptions shows that such affidavits were filed, but fails to even show that they were read or in any way called to the attention of the court. The bill of exceptions does not set forth the use of any such language, nor does it show any finding as to whether or not such language was used. The affidavits cannot be considered.

(People

v.

McMahon,

124 Cal. 435;

People

v.

Mahoney,

77 Cal. 532.) In the bill of exceptions appears a colloquy between the defendant’s attorney, the court, and the district attorney concerning the remarks, and the judge finally said: "The statement of Mr. Black just made is, that he denies that there is any proof here that there were children. Counsel for defendant, in his argument to the jury, assumed that the defendant had children. Mr. Black’s reference to the claim is in the nature of a denial that the existence of any children of the defendant had been proven here.” The district attorney then said in the presence of the jury: “I don’t want the jury to understand that I am stating as a fact, of my own personal knowledge, anything contrary to what the record discloses; but I do state here that, from this testimony and in the absence of any affirmative proof on that point, that we have