People v. Hamblin

Foote, C. — The defendant in this case was convicted of murder in the first degree, he moved for a new trial, the motion was denied, and from the judgment of conviction and the order denying a new trial he appeals.

The defendant was called as a witness on his own behalf. Upon cross-examination the district attorney asked the following questions:—

“Q. — I propose to ask you this question, sir. On the night" or evening of the 24th of October, 1881, were you arrested on Third Street or Kearny Street, in this city, for shooting at a man by the name of James Sanderson, and whether or not you were imprisoned under said arrest in this building?”

“Q. — Were you. imprisoned in the city prison here? Were you brought to the city prison, and imprisoned in the city prison at that time?”

“Q,. — On the twenty-seventh- day of December, 1872, in the city of Stockton, in this state, were you arrested and imprisoned for shooting at a man by the name of Bell, who was fireman on the locomotive on the pay-car of the Central Pacific Railroad ?”

“Q. — Were you arrested on the night of the twenty-seventh day of December, 1872, at the city of Stockton, for firing at any man, and imprisoned for firing at any man up there?”

The witness was compelled to answer each of these questions,' against his exceptions, as defendant.

[103]In a case of recent occurrence in this state, where similar questions were put to a witness, this court said:—

“'The only possible object of asking the questions was to impeach the credibility of the witness. But the testimony was not admissible for that purpose. The mere fact that the witness had been arrested does not prove nor tend to prove that he had been convicted of any offense; and until there is proof of conviction the witness was protected by the legal presumption of innocence. Hence the rule formulated by section 2051, Code of Civil Procedure:—

“A witness may be impeached by the party against whom he was called by contradictory evidence that his general reputation for truth, honesty, and integrity is bad, but not by evidence of particular wrongful acts, except that it may be shown by'the examination of the witness or record of the judgment that he has been convicted of a felony.” (People v. Elster, 3 W. C. R. 37, and cases there cited.)