Meyer v. Lindsley

BARNARD, P. J. This is an action for malicious prosecution, the complaint alleging that the defendant had initiated a criminal action in which this plaintiff was charged with drawing and exhibiting a pistol in violation of section 417 of the Penal Code. A jury returned a verdict in favor of the plaintiff in the amount of $1500, and the defendant has appealed from the ensuing judgment and has attempted to appeal from an order denying his motion for a new trial, which is not an appealable order.

The appellant filed a written request for a transcript in which he asked only for that part of the record which contained the instructions, cross-examination of one witness, the testimony of one other witness, and offers of proof made in connection therewith. While it is stated in respondent’s brief, and not denied in the appellant’s closing brief, that the trial of this case lasted nine days and that some forty witnesses were examined, the reporter’s transcript filed herein contains only, in addition to the instructions given and refused, the testimony of one witness on cross-examination and redirect, the testimony of another witness given in rebuttal, the testimony of a third witness given in sur-rebuttal, and certain offers of proof. All of this evidence relates to whether or not the first two of these witnesses were biased against the appellant. There is no evidence before us as to any fact relating to the issues which were presented by the pleadings, and no evidence, pro or con, as to what happened on the occasion when the respondent was charged with having exhibited a gun.

The appellant complains that the testimony of the first of these witnesses on redirect examination contains some hearsay, and that the court also erred in refusing to allow him to recall another witness in order to lay the foundation for further impeachment of one of these witnesses. It appears from the limited record before us that the testimony first objected to came in incidentally in explanation of the witness’ previous testimony. The other matter, with the offers of proof, related to further attempts to show bias on the part of the two witnesses first mentioned and was purely cumulative. It [700]would seem that the court was not unduly strict with, .the appellant in this regard since the only evidence now before us, consisting of ninety-five pages of transcript, relates solely to bias on the part of these two witnesses.

Moreover, if we assume error in these respects, there is nothing before us to indicate that prejudice may have resulted therefrom. As was said in Coleman v. Farwell, 206 Cal. 740 [276 Pac. 335]: