People v. Cornish

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[Crim. No. 2815. Third Dist. Apr. 24, 1958.]

THE PEOPLE, Respondent, v. ROBERT CORNISH et al., Appellants.

COUNSEL

Richard T. Tosaw, under appointment by the District Court of Appeal, for Appellants.

Edmund G. Brown, Attorney General, Doris Maier and William O. Minor, Deputy Attorneys General, for Respondent. [159 Cal. App. 2d 672]

OPINION

VAN DYKE, P. J.

These are appeals from a judgment entered upon the jury's verdicts finding appellants guilty of robbery in the second degree.

[1] The sole assignment of error on this appeal is the prejudicial misconduct of the deputy district attorney in asking appellant Cornish upon cross-examination: "Didn't you tell me your stupid attorney wanted you to plead guilty and you didn't want to?"

The question was highly improper but not prejudicial in view of the overwhelming evidence of appellants' guilt.

Appellants denied commission of the robbery but admitted taking the victim thereof, Trible P. Odom, to an isolated spot on the outskirts of Redding and there severely beating him. Appellants further admitted that there was no cause or provocation for the beating which was administered by appellant McLaughlin, at the instigation of appellant Cornish. Appellants had become acquainted with Mr. Odom earlier in the day and the three had spent considerable time drinking together. There had been no quarreling or ill- feeling prior to the uncalled for assault. Mr. Odom testified that after the beating, and while he was lying on the ground, he felt appellant Cornish go through his pockets, in which he had five dollars and a bus ticket. Shortly thereafter Mr. Odom found his money and bus ticket were gone. The missing bus ticket was found upon appellant Cornish's person when he was arrested.

As stated in People v. Scott, 24 Cal. App. 440, 447 [141 P. 945]:

"... The evidence of defendant's guilt is so strong and persuasive that it is incredible that the verdict would have been otherwise if the declared misconduct of the district attorney had not occurred."

The judgment is affirmed.

Schottky, J., and Warne, J. pro tem., fn. * concurred.

FN *. Assigned by Chairman of Judicial Council.