How has the prosecution attorney been found guilty of prejudicial misconduct in his closing argument?

It is next claimed that the prosecuting attorney was guilty of prejudicial misconduct in his argument to the jury. The character witnesses of defendant were asked, on cross-examination, if they had ever heard of defendant's previous arrests in Los Angeles and in Berkeley and they answered in the negative. No complaint is made to this questioning but it is claimed that the prosecuting attorney referred to these arrests in his argument to the jury and said that defendant had failed to produce any evidence to the effect that he had not been arrested in those places. Assuming the truth of this statement, misconduct was apparent. People v. Stennett, 51 Cal.App. 370, 197 P. 372. However, the closing argument was not reported due to failure of the recording equipment. It does appear from the reporter's transcript that an objection was made to some portion of the prosecutor's argument and the court admonished the jurors that the questions asked of the various character witnesses were proper but they were not to be concerned with the truth or falsity of the alleged rumors or reports, and they should not consider them as having been proved. Under the circumstances it cannot be held that prejudicial error resulted.

Lastly, the defendant offered 49 instructions and 18 of them were given. Among those refused as covered were two (No. III and No. IV) touching upon the subject of the indictment being a mere accusation and not evidence of guilt. The claim is that they were not covered by other instructions. We see no merit to this. While not specifically covered, in effect, the jury was sufficiently informed on that subject. Refused instruction No. IX related to the question of proof necessary in a criminal action as compared to that in a civil action. This was sufficiently covered by other instructions, particularly one given in the language of CALJIC 21, on reasonable doubt, presumption of innocence, and burden [145 Cal.App.2d 539] of proof. Defendant's refused instruction No. IV defined a criminal conspiracy and contained a statement that it was not unlawful for two or more persons to agree to do something that can lawfully be done by one person, and that the jury could not consider acts or declarations of others made outside of the presence of the defendant until, independent of such declarations and acts, a conspiracy had been shown to exist, citing People v. Doble, supra.