125 Cal. 521 | Cal. | 1899
Appellant was tried upon an information charging him with having stolen a cow, was found guilty, and sentenced to imprisonment in the state’s prison for the term of ten years.
Mr. Rice, the owner of the cow, testified that it was in the pasture on the 25th of February, 1898, and on the 26th'he found it in the slaughter-pen of Metcalf & Gehl, and that it was taken from the pasture and placed in the pen without his permission.
Mr. Baker testified that on the morning of the 26th he went to the pasture and found that the fence had been taken down, his cow taken out and the fence put up again, and saw the tracks of three cows and two horses which he followed to said slaughter-pen, and there found three cows, one of which was his and one Mr. Rice’s.
At this stage of the evidence the prosecution called Thomas B. Hicks, who testified that he was the jailer of the county jail, that he had known the defendant two years, and saw him at the jail on February 26th. He was then asked: “Did you hear him make any statement in regard to his guilt or innocence in this matter?” The defendant objected to the question, “and asked leave to introduce testimony to show that the admissions sought to he elieit-edwere made hythe defendant under promises of exemption, and that a lesser penalty would he imposed if he
The court denied the motion, and the defendant excepted. The witness testified that the conversation was had in the district attorney’s office a short time after the defendant’s arrest. “There were two conversations at which I was present. There were four of us present the second time, Andreas Castro, Ed. Burke, and myself and my father. When you (the district attorney) took him to your office you simply asked him whether he did or not, and you never told him that you would help him, or you never made any threat to him; you asked him two or three times if he did the deed, and he set hack in his chair and kind of studied. There were not any inducements held out to him to answer. Q. Now, what did he say at that time?” The defendant objected to the question upon the ground that there was no sufficient basis for proving a confession; that he was imprisoned and under duress, and that the state must do something more than show that at this particular conversation no inducements were held out to him. This objection was overruled, and the defendant excepted. The witness then testified: “Mr. Storke then asked him if he knew anything about this cattle-stealing, and he hung back. No, he didn’t know; and finally he began to get uneasy in his chair, and finally says, ‘Yes, I do; my brother and I took the cows and drove them to the slaughterhouse.’ ”
Epon cross-examination, the witness testified that there was a conversation with the defendant at the jail at which the witness’ father (the sheriff), Mr. Burke, and himself were present; that he couldn’t say positively whether it was within a day or two after his arrest.
Mr. Shoup, the deputy sheriff who made the arrest, but who was not present at either of the conversations above narrated, testified that on the day of the arrest the defendant denied the charge; that afterward he had another conversation with defendant, but did not fix the date either in relation to the arrest or to the other conversations above referred to, further than that it was a few days after he put him in jail, and was “at the bars of the jail.” The witness said: “He commenced talking to me about the matter, and admitted that he and his brother
Mr. Burke, one of the persons present at the conversation in the district attorney’s office, and who acted as interpreter on that occasion, was called by the prosecution, and testified that no inducements or threats were used or any influence exerted to induce the defendant to make any confession. Upon cross-examination he testified as follows: “This was not the first time that I acted as interpreter with the defendant, but it was the first and only time with the district attorney. Before that I had acted as interpreter for Sheriff Hicks while he talked with him in the office of the jail. The sheriff and Tom Flicks; the jailer, were there; Mr. Hicks, the sheriff, started in by informing the defendant that he had a bad case against him—had a sure case against him—and it would be best for him to make a clean breast of the whole affair and relate all the circumstances in regard to it. Of course, the defendant argued about the matter to some extent. At first, he stoutly denied haying anything to do with it, and then asked the sheriff to promise him to help him out of the scrape, do all he could for him, if he should make a full confession in regard to it. The sheriff assured him that he would do everything in his power to help him. And, in fact, the prisoner went to such an extent as to make the sheriff shake hands with him, as pledge of good faith. The promise that the sheriff made to him, though, was in this way: He said, ‘I may be able to induce the court or jury to give you a light sentence—go as easy as possible with you’; that was the substance of it. Of course, some months have elapsed and I do not remember very well. The defendant made no admission of guilt until after receiving these assurances. The defendant’s knowledge of English is very slight.”
Counsel for defendant then moved “to strike out the evidence that has been introduced of this statement made by the defendant, the evidence of T. B. Hicks and E. M. Burke, on the ground that the statement made by the defendant, as testified to by those witnesses, was involuntary and induced hy hopes of
We have given a very full statement from the record, in view of respondent’s contention that proper objections were not seasonably made, and exceptions taken. This contention cannot be sustained. Conceding that defendant’s request to be permitted to show that the alleged confessions were seen red through promises of influence in his behalf was somewhat premature, it does not appear that it was denied upon that ground, and counsel doubtless understood the ruling as a denial of his right to make such showing; but be that as it may, when the witness, who was 'then testifying as to what was said at the district attorney’s office, was asked the question, “How, what did he say at that time?” the defendant objected, and among the grounds of objection stated “that the state must do something more than' show that at this particular conversation no inducements were held out to him.” That objection was overruled, and an exception taken. These two objections and exceptions were sufficiently specific to advise the court and the district attorney of the points made by the defendant, and it was not necessary that they should be repeated upon the examination of subsequent witnesses in order to justify his motion, afterward made, to strike out the testimony of said confessions. The colloquy between the court and counsel after the ruling upon the motion to strike out said testimony shows that counsel for defendant intended their motion to cover all the testimony as to defendant’s confessions, and after the court had been so informed the ruling was repeated with the statement by the court that if the motion extended to other confessions than that made in the
The testimony of Mr. Hicks was as to the confession made in the office of the district attorney, and was therefore excluded; but the ruling left with the jury evidence that a confession of guilt was made to the sheriff, the jailer, and Mr. Burke in the sheriff’s office prior to the confession made in the district attorney’s office, though the latter confession was excluded because the former was obtained by improper representations, as clearly appears from the testimony of Mr. Burke.
Appellant discusses some instructions requested by the defendant to be given to the jury, but in view of what has been said they need not be specially noticed.
I advise that the judgment be reversed and the cause remanded.
Gray, C., and Chipman, C., concurred.
For the reasons given in the foregoing opinion the judgment is reversed and the cause remanded.
Garoutte, J., Van Dyke, J., Harrison, J.
