The defendant was tried on an indictment charging him with the larceny of $700 from one Martha J. King. From the judgment which followed his conviction and from the order denying his motion for a new trial he has appealed upon a typewritten record. *Page 436
The facts of the case are that the defendant married the complaining witness on March 28, 1925, having met her through a correspondence club of which he was a member, and that on the second day of April following he left the rooms which they were occupying in the city and county of San Francisco, taking with him the sum of $700 in currency which he had persuaded his wife to draw from her bank on that day upon the representation that he would invest the money in a grocery business which he proposed to conduct for their benefit. The defendant was found some time later in the city of San Diego, where his arrest was made.
[1] On this appeal he complains that he was prejudiced by the introduction of evidence showing that a few years before he had married a Mrs. McDonald under similar circumstances and that a short time after his marriage he had separated from her and taken with him the sum of $1,750 of her funds which he had persuaded her to entrust to his keeping. This evidence was offered over the objection of appellant, but when it developed that the offense which was then committed was one of embezzlement rather than grand larceny the trial judge struck all the evidence from the record and fully instructed the jury to disregard it. Though we do not pass on the question that the two offenses were so dissimilar as to require the elimination of this evidence, it is plain that if any error occurred it was cured by the rulings of the trial court.
[2] Appellant claims that the court erred in admitting evidence of the marriage relation of appellant and the complaining witness. This evidence was merely a part of the story of the case as presented by the prosecution. Furthermore, the marriage relation was freely admitted by the appellant when he took the stand in his own behalf, and no possible prejudice arose from the admission of the evidence in the prosecution's case.
[3] It is argued that the court erred in refusing to allow the appellant to call the complaining witness for cross-examination under section 2055 of the Code of Civil Procedure. Without passing on the question of the applicability of this section to a situation of this kind, it is sufficient to say that the appellant subjected the complaining witness to a lengthy cross-examination on matters which were irrelevant and trivial, and that the trial judge properly exercised the discretion *Page 437 vested in him when he refused to let this method of examination continue.
[4] The next point is that the constitutional rights of the appellant were violated when he was compelled to answer on cross-examination that he had been previously convicted of two separate felonies in another state. The appellant had voluntarily offered himself as a witness in his own behalf, and these questions, which were for the purpose of impeachment, were plainly within the bounds of cross-examination on the part of the state.
[5] Complaint is made that the court erred in refusing to instruct the jury by written instructions, as required by section1127 of the Penal Code. The facts are that the appellant requested certain instructions to be given in writing and expressly waived written instructions as to all other matters. Such of the instructions as the appellant requested in writing and which the trial judge deemed proper to give were given to the jury in writing as requested and were filed in open court in full compliance with the code section cited. Other points do not require consideration.
Judgment and order affirmed.
Sturtevant, J., and Langdon, P.J., concurred.
A petition for a rehearing of this cause was denied by the district court of appeal on May 11, 1926, and a petition by appellant to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on June 9, 1926. *Page 438