Amer

Defendant was convicted of the crime of embezzlement. He has appealed from the judgment, and there is also an attempted appeal from the order denying defendant’s motion in arrest of judgment. This latter must be disregarded. {People v. Cadot, 138 Cal. 527 , [ 71 Pac. 649 ].)

Appellant seems to rely mainly upon the affirmation of error committed by virtue of certain remarks of the district attorney in his address to the jury. Among these is the statement that “The court will instruct you that the defendant does not have to take the stand—that you were told when you were examined touching your qualifications as jurors in the case—he does not have to do it, but, gentlemen of the jury, if he wants to exercise that right with which the constitution clothes him and extends to him—if he says I will take chances on this proposition and I will not take the stand—perhaps because of the embarrassing situation I will be placed in and the questions that will be propounded to me—if he deems it proper to take that chance, why, then, that is his own business”; and again, “And the court will instruct you that the defendant under the law does not have to take the stand; but it seems to me if you…

I concur in the judgment. I desire, however, to explicitly place my assent to the conclusion reached by Mr. Justice Burnett upon the point of practice discussed in his opinion with reference to the alleged misconduct of the district attorney upon the ground that the evidence disclosed by the record appears to be so conclusive of the guilt of the appellant that, in my opinion, said misconduct could not have been prejudicial. Under the rule laid down by the supreme court in People v. Amer, 151 Cal. 303 , [ 90 Pac. 688 ], the misconduct of a district attorney in a criminal case, where-the-same is assigned as error, cannot be reviewed on an appeal-from an order denying a motion for a new trial. Under the rule intimated by Mr. Justice Burnett in the ease at bar, such misconduct cannot be reviewed on an appeal from the judgment. Thus, if both conclusions be correct, a defendant in a criminal case is afforded absolutely no protection against the most flagrant act of a prosecuting officer in his argument te the jury. Such officer may, with impunity, if he so pleases, import the most damaging extraneous matters into the case, and thus accomplish a conviction where, perhaps, the evidence…