People v. Molina

THE COURT.

—The defendant was charged, by the information with having, on the second day of December, 1897, willfully, feloniously, and with malice aforethought, killed and murdered one A. Ramos in the county of Kern. He pleaded not guilty, and after trial was convicted by the jury of the

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offense charged without recommendation. He made a motion for a new trial, which was denied, and he was thereupon sentenced to be taken to "the state’s prison at San Quentin and hanged by the neck until dead. This appeal is from the judgment and order denying defendant’s motion for a new trial. Defendant has not brought here the evidence nor the instructions given to the jury. In his brief he states that there was evidence to sustain the verdict and that the instructions contain no error justifying a reversal. The sole and only point on which it is claimed the judgment and order should be reversed is by reason of the remarks of the district attorney in his argument to the jury before the final submission of the cause. The defendant was charged in the information with a prior conviction in the superior court of Kern county on the third day of September, 1896, of the crime of an assault with a deadly weapon, and to the charge he pleaded not guilty. In his opening argument to the jury the district attorney said: “No longer ago, gentlemen, than the third day of September, 1896, as was shown by the judgment-roll in the case of the People of the State of California against Molina, No. 394, in this court, this defendant was convicted, or plead guilty rather, to the crime of assault with a deadly weapon, having been informed against upon a charge of assault to commit murder; the plea having been allowed to be entered by my consent for the lesser offense, owing to the fact that it is sometimes very difficult, in these little troubles that arise between that class of people, to have them come up and prosecute wlien it comes into a court of justice.”

The defendant excepted to the remarks, but made no motion to have them corrected or the jury instructed to disregard them. It is now claimed that the remarks were prejudicial error. As the defendant had entered his plea of not guilty to the charge of a prior conviction, it became necessary for the district attorney to introduce proof in support of such charge or abandon it. He did accordingly introduce the judgment-roll of such prior conviction, showing the facts as stated, and showing the fact that by consent of the district attorney the defendant was allowed to plead guilty of an assault with a deadly weapon after having been informed against upon a charge of