Can a defendant who takes the stand be impeached by the use of a prior felony conviction?

(1) It is well settled in this circuit that a defendant who takes the stand may be impeached by the use of a prior felony conviction. Nutter v. United States (9 Cir. 1969) 412 F.2d 178, 182, cert. denied 397 U.S. 927, 90 S.Ct. 935, 25 L.Ed.2d 107 (1970). United States v. Allison (9 Cir. 1969) 414 F.2d 407, 411-412, cert. denied 396 U.S. 968, 90 S.Ct. 449, 24 L.Ed.2d 433 (1969).

Here, the appellant objected to the question concerning the prior felony, on the ground that the question was outside the scope of cross-examination. Where there is a "meaningful invocation" of the courts' discretion, the district court on consideration of certain criteria, may refuse to admit the prior conviction into evidence. Absent such an invocation of the district courts' discretion, reversal is not warranted. United States v. Allison, supra, pp. 411-412.

[443 F.2d 912]

(2) There was no objection to the instruction in the court below. The instruction has been used traditionally in this circuit. Any question regarding the instruction will not be considered when raised for the first time on appeal. Smith v. United States (9 Cir. 1968) 390 F.2d 401; Marsh v. United States (9 Cir. 1968) 402 F.2d 457.

The judgment is affirmed.