Opinion
March 24, 1910.
Clark L. Jordan, for the appellant.
Robert C. Taylor, for the respondent.
Defendant appeals from a judgment convicting him of the crime of grand larceny. The offense charged in the indictment consisted of stealing a ring and a sum of money from the person of one Schneider in the night time. The crime was committed, if at all, on the platform of a street car, and there was evidence to establish the fact of the crime and to connect appellant with it. Evidence was admitted under proper objection that the stolen property was returned to the complainant by an unidentified woman, not shown to be connected in any way with the defendant. The police officer who arrested appellant was permitted to testify to a conversation between the appellant and himself on the way to the stationhouse, in which the appellant referred to the fact that he had formerly been convicted of crime. This evidence was elicited by the court, after the appellant's counsel had objected, and the district attorney had withdrawn the question objected to, and had indicated his unwillingness to permit the evidence to be given. The defendant had, at this time, given no evidence of good character, and the inadmissibility of the evidence is apparent. Indeed, the learned district attorney does not now defend the admission of the evidence above referred to, but urges that the defendant cannot have been injured because the court, at a later stage of the trial, and upon reflection, struck the objectionable evidence out of the record and directed the jury to disregard it. It is not always easy for a jury to obliterate from their memories damaging evidence, and in view of the character of the proof we are by no means satisfied that the verdict may not have been influenced by the incompetent evidence which they had heard. Particularly is this true because of the conduct of the counsel for the People in his summing up. The defendant, as was his right, had refrained from testifying in his own behalf. Under our statute (Code Crim. Proc. § 393) no reference to this fact can properly be made to his detriment, and yet the record discloses that the prosecuting counsel in an excess of zeal more than once indulged in covert allusions to the appellant's failure to defend himself. On the whole we are of the opinion that the ends of justice will be best served if the judgment and orders appealed from be reversed and a new trial granted; and it is accordingly so ordered.
INGRAHAM, P.J., LAUGHLIN, CLARKE and MILLER, JJ., concurred.
Judgment and orders reversed and new trial granted. Settle order on notice.