65 Cal. 267 | Cal. | 1881
Lead Opinion
Whether the deceased “ usually walked with his hands in his pockets” would not have been of the slightest importance, and would, therefore, have been an immaterial circumstance, if the defendant had not, after the admission of evidence as to the habit of deceased in that respect, attempted to prove that when deceased was shot, he had his hand in his pocket with the intention, as defendant supposed, of drawing a deadly weapon therefrom, with which to attack him. When the question objected to was asked, it was simply immaterial, and evidence that deceased usually walked with his hands in his pockets could not have prejudiced the defendant any more than evidence that the deceased usually walked with his hands outside of his pockets would.
Such evidence in no way tended to strengthen the case of the prosecution. The only effect it could have had was to weaken that of the defendant. And whether introduced before or
It would have been better to have waited until the defendant had introduced evidence on this point before introducing the evidence objected to, and then to have introduced it in rebuttal. But, as before suggested, it would then have been no less prejudicial to the defendant. At most it was error without injury.
When the jury came into court with a verdict, and the defendant’s attorney was informed of the fact, we think the court, after waiting a sufficient length of time for said attorney to come into court, if he had been so disposed, was justified in receiving the verdict, polling the jury, and discharging it, as was done. It is impossible to see, and no attempt is made to show, how the defendant could have been prejudiced, in any degree, by the action of the court.
Judgment and order affirmed.
Myrick, J., and Thornton, J., concurred.
Concurrence Opinion
I do not agree that the court below was right in admitting testimony as to the custom of deceased in