Snellie

— The defendant was tried and convicted upon an indictment for grand larceny. On the trial he testified in his own behalf, and on his cross-examination stated that he had been in jail on this charge for five months. He was then asked if this was the only charge for which he had been put in jail. The question was objected to, but the objection having been overruled, witness said he had been arrested for assault and battery. He was then asked if he had been arrested for larceny. Objection being made was overruled, the judge remarking at the time: “He is not bound to answer it, but the question whether he has ever been arrested and confined on such a charge may be asked.” Witness then answered the question in the affirmative. It is claimed that these rulings are erroneous under the doctrine of People v. Reinhart, 39 Cal. 449 .

On the other side, it is contended that the examination was proper, as tending to show the degree of credibility to which the witness was entitled, to exhibit his true character and standing before the jury, and that the evidence did not tend to prove the contents of a record by parol, but only to show that he had been accused of and arrested for an…

— I dissent. There is no presumption that necessarily, or even prima facie, an arrest for larceny was founded on a written accusation. On the contrary, in numerous instances, the arrest is lawfully made, without a warrant or written accusation, when the offender is taken in the very act of committing the crime. But if the law expressly required a written accusation as preliminary to the arrest, nevertheless the accused may, in fact, have been arrested on a verbal accusation only; and for all the purposes for which the witness in this case was interrogated on that subject, the fact of the arrest, under such circumstances, would have been as damaging to him as though the forms of law had been strictly complied with in making the arrest. And even though it had been conceded that the accusation was in writing, I am not prepared to say that the court erred in admitting the testimony. In People v. Reinhart, 39 Cal. 449 . the attempt was made to prove by parol that the party had been convicted of a felony. We held the proof to be incompetent, on the ground that the record was the best evidence of the conviction. But an arrest is an act in pais, and may be proved by parol; and my…