120 Cal. 7 | Cal. | 1898
Defendant was charged with the murder of one Mabel Barthleman, and was convicted of murder iiv the first degree, the jury assigning the death penalty. He appeals
There was no conflict of evidence, and there is no question whatever touching the facts of the homicide. The defendant and. the deceased were at one time husband and wife, and prior to the date of the homicide had been divorced.' Immediately before the commission of the homicide, appellant, who had come into the presence of the deceased, asked her if he could have the child that had been born to them during their marriage, and, upon her saying “no,” he drew a revolver arid shot her several times, inflicting mortal wounds from which she shortly afterward died. Apparently, the homicide was a malicious, cold-blooded murder, unjustifiable and indefensible. The only defense offered was insanity.
The main grounds for a reversal are alleged errors committed by the court in the matter of instructing the jury; and they consist mostly of exceptions to the refusal of the court to give certain instructions asked by the appellant. There are also some alleged errors arising out of rulings upon the admissibility of evidence.
It is' contended that the court erred in refusing to give the instructions asked by appellant, numbered 12, 14, 15, 19, 34, and 35. The first four of said instructions refer to the subject of reasonable doubt, and they were properly refused because the court in its own charge, and in other instructions given at the request of appellant, had correctly and in great detail covered the whole subject of reasonable doubt. The other two instructions are as follows:
“34. The jury are instructed that if. the evidence points to-two conclusions, one consistent with the defendant’s guilt, the other consistent with the defendant’s innocence, the jury are bound to reject the one of guilt and adopt the one of innocence, and acquit the defendant.”
“35. The jury are instructed that if one set or chain of circumstances lead to two opposing conclusions, one pointing to the guilt, the other pointing to the innocence of the .defendant, and the jury have any reasonable doubt as to which of such conclusions the chain of circumstances leads, a reasonable doubt is thereby created, and the defendant must be acquitted.”
It is contended that the court erred in not stating to the jury that it refused certain instructions asked by appellant because' they had been given in other instructions; and one or two early decisions of this court are cited as sustaining that doctrine. But whatever may have been the practice in former years,- it is now the law that the jury can take into their room only those instructions which'have been given (Pen. Code, sec. 1137); and the jury now has no knowledge of instructions that have been refused.
Instruction Ho. 264 was properly refused. It requested the court to instruct the jury that although the appellant at the time of the homicide was able to distinguish right from -wrong, yet, if he "did not possess the power to avoid the wrong and do the right, he is irresponsible, and you must acquit.” This is not the law. (People v. Hoin, 62 Cal. 120; 45 Am. Rep. 651; People v. Ward, 105 Cal. 343; People v. McCarthy, 115 Cal. 255; People v. Hubert (Cal., Dec. 11, 1897). Instruction 28 was properly refused, because it asked the court to instruct the jury that if "they have a reasonable doubt of the sanity of the defendant at the time of the commission of the homicide they must acquit him.” A reasonable doubt of a defendant’s sanity is not sufficient to warrant an acquittal. (People v. Ward, supra, and authorities there cited.) Instruction 30, relating to malice, was properly refused, because the court fully instructed upon that subject in other parts of its instructions; moreover, the only ground upon which absence of malice could be based was insanity, and there-'
No. 23 was properly refused. It asked the court to instruct as to the “weight” of certain evidence, and such an instruction would have been an encroachment upon the province of the jury; moreover, it was not applicable to the case and the defense sot up.
There was no prejudicial error in modifying No. 29. That instruction as requested by appellant was as follows: “The jury are ■instructed that if they find from all the evidence in the case that defendant was, at the time of the homicide, although only momentarily, incapable by reason of mental disease of appreciating the nature and quality of his act, or incapable of appreciating its wrongfulness, then the defendant must be acquitted.” The court gave the instruction with the modification of striking out the words “although only momentarily.” The instruction as given, together with all the other instructions given on the subject of insanity, fully and sufficiently stated the law on that subject. Among other instructions the court, at the request of appellant, gave the following: “27. The jury are instructed that to establish a defense on the ground of insanity, it must only appear by a preponderance of the evidence that at the time of the commission of the homicide the defendant was laboring under such a defect of reason as not to know the nature or quality of the act committed, or not to know the act was wrong.”
There is some contention that the. court erred in giving instructions 5 and 6 asked by the prosecution. These instructions relate to the testimony of certain physicians'who testified as experts, and gave their opinions about the insanity of the appellant in answer to questions mostly hypothetical. By the first of said instructions the jury are told substantially that such testimony was to be viewed with scrutiny, and received with great caution, and that the jury could reject it if they deemed it not well founded in fact; and by the second they were told that the value of such testimony depended upon “the truth or falsity of the facts given to them and upon which they found their opinion.” The only plausible objection to these instructions is that they encroach upon the province of the jury. There is no doubt that courts, when instructing juries, frequently approach too nearly the line that divides questions of law from questions of fact and matters of evidence, which are, under our system, wholly nothin the province of the jury; and this tendency enables counsel to harass judges with innumerable requests for instructions which really present conclusions as to issues of fact instead of statements of principles of law. But, with respect to the two instructions now under review, it has frequently been said by textwriters and in judicial opinions that the matters stated in said instructions are correct and true, and in some cases it has been expressly held that the giving of such instructions to the jury was proper (see Rogers on Expert Testimony, 2d ed., 450, et seq., and cases
The exceptions taken to the allowance of nonexpert witnesses as to the insanity of appellant are not máintainable. Within the rule stated in People v. McCarthy, supra, People v. Schmitt, 106 Cal. 52, People v. Lane, 101 Cal. 513, and Estate of Carpenter, 94 Cal. 414, the court did not abuse its discretion in admitting the testimony of the witnesses claimed to be “intimate acquaintances” within the meaning of subdivision 10 of section 1870 of the Code of Civil Procedure.
■ Appellant objected to the allowance of the testimony of cer7 tain witnesses, particularly that of the witnesses Holden, Anna Holden, and Mrs. Crumm, to the general effect that appellant, on several occasions, had used language expressing hostility to and dislike of the deceased. The general objection seems to be that this language was proven for the purpose of showing threats against deceased, and that it did not amount to threats. But the testimony was admissible as tending to show appellant’s feelings toward the deceased and his treatment of her, and in some degree to show malice and motive. (People v. Kern, 61 Cal. 244.) The same principle applies to the testimony of Holden that appellant took the child of himself and the deceased away from the latter to a remote place, and to the introduction of the part
Appellant contends that the court erred in sustaining an objection to this question asked by the counsel of his witness, William Baskwell: “Do you know why he carried a pistol?” The witness had testified, among other things, as follows: “ifr. Barthleraan was in the habit of carrying a pistol; he carried a pistol when I roomed with him; that was seven or eight years ago. I roomed with him about three months on Spring street, and he carried one then.” The question above stated was then asked, and objection to it sustained, when the witness continued as fol-lows: “I am not able to state anything about his habit of carrying a pistol after the date I have, mentioned.” The question might have been properly allowed for what it was worth, but the time of the witness’ knowledge upon the subject was too remote to give it any substantial value, and the ruling, whether strictly right or wrong, was about a matter evidently too unimportant to warrant a reversal of the judgment. The testimony of this witness Baskwell was very favorable to appellant; he testified very fully about his notion of appellant’s insanity, and was allowed to say things which, if the prosecution had objected, could have been excluded. Indeed, the whole record shows that appellant’s effort to sustain his defense of insanity was given wide range, and that there can be no just claim that it was unlawfully or unfairly restricted.
The court, on motion of the prosecution, struck out the testimony of appellant’s witness J. T. Vennum; and the ruling is assigned as error. After this testimony had gone to the jury it might as well have been allowed to stand, but it was colorless and of no importance, and striking it out affords no ground for reversal.
Appellant’s witness, Mrs. Burg, testified, among other things, that some time before the homicide the appellant complained to her of sleeplessness; to this the prosecution objected as hearsay, and the court said, “what she said about sleeping may be stricken out,” but afterward she repeated this testimony without objection. There is, therefore, nothing in the point.
There is nothing in the point of the alleged misconduct of ,the district attorney in his closing address to the jury. By the
We have noticed, we think, all the points made by counsel. The motion in arrest of judgment is not argued, and there was evidently no ground for it. The case was, upon the whole, fairly presented to the jury, and we see no legal reason to disturb their verdict or to reverse the judgment.
The judgment and orders appealed from are affirmed.
Garoutte, J., Harrison, J., Van Fleet, J., Henshaw, J., and Temple, J., concurred.