81 Cal. 566 | Cal. | 1889
The defendant was tried and convicted, upon an information, of murder in the first degree in
One of the grounds upon which he bases his contention that a new trial should be awarded him is, that the evidence does not show that he committed the murder with which he is charged; and conceding that any killing is shown to have been done by him, it does not appear that murder in the first degree was committed.
It is undoubtedly the law, as he claims, that, in order to convict of murder in the first degree, the defendant must be shown by the evidence beyond a reasonable doubt to have killed the person with whose murder he is charged, with the deliberate, premeditated, and malicious intent so to do. (People v. Cox, 76 Cal. 282, 286; Pen. Code, sec. 189.) But it is the province of the jury to determine from all the facts and circumstances in evidence whether the killing is accompanied by all the ingredients which go to make up the crime charged. In this case a very strenuous argument is made upon all the evidence which was adduced, both direct and circumstantial, that the defendant is not proved to have been guilty as charged beyond reasonable doubt, and that the jury have found him guilty by inferring material facts not in evidence from facts in evidence which only amount to inferences. When counsel proceed by argument to elaborate their views on the matter, they seem to advance no further than to the point that the circumstantial evidence in the case is insufficient to show the identity of the body found with that of the deceased; that the defendant killed him, and that he did it maliciously, with premeditation and deliberation. There are many facts and circumstances appearing in the record before us which tend strongly to show that the defendant and none other was the slayer of Dunn; that the purpose of the killing was plunder, to obtain possession of the property which Dunn had and the defendant lacked; that the
It is further argued that the judgment cannot stand because the defendant, although arraigned and offered an opportunity to plead, only did so through his counsel, and not in person. Conceding that the plea by counsel amounted to no plea at all, and then the matter stands as if the defendant when called on to plead to the information stood mute. It then became the duty of
It is further claimed that the court erred in refusing an instruction for the defendant as follows: “The defendant has introduced evidence of his good character as a man of peace and quiet, and for honesty and integrity. If, in the present case, the good character of the defendant for these qualities is proven to your satisfaction, it is to be considered by you in connection with the other facts in the case, and it may be sufficient to create in your minds a reasonable doubt of his guilt, although no such doubt would have existed but for such good character.” But the court gave in place of the refused instruction another, which reads: “The defendfeudant has introduced evidence tending to show his good character as a man of peace and quiet, and for
There was no error in permitting the witnesses Day and Nichols to relate what the defendant said about “his partner” going to Scott’s Valley. The evidence tended to show that Dunn and he were partners at the Summit in hunting, and as to what hides and meat they.got; that they bought the mule they had jointly; that they slept together in Dunn’s blankets, and it is evident that the word “partner” as used referred as much to the companionship of the two men as to their business relations.
Upon the whole case as presented by the record, we perceive no prejudicial error, and advise that the judgment and order be affirmed.
Vancliee, C., and Belcher, C. 0., concurred.
For the reasons given in the foregoing opinion, the judgment and order are affirmed.
Rehearing denied.