90 P. 1130 | Cal. | 1907
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *202 The defendant was convicted of murder in the first degree, and adjudged to suffer life imprisonment. He appealed from the judgment, and from an order denying his motion for a new trial. Although judgment was pronounced in the lower court on May 27, 1899, the bill of exceptions was not settled therein until January 15, 1905, and the transcript on appeal was not filed until August, 1905. We have no means of ascertaining where the blame rests for this delay. The district court of appeal, by its decision given on such appeal, reversed the judgment and order, but within due time thereafter this court vacated that decision and ordered the cause to be heard and determined here (Const., art. VI, sec. 4), and the same has now been submitted for our consideration.
There can be no question as to the sufficiency of the evidence to sustain the verdict. The deceased, one Joseph T. Gross, between whom and the defendant considerable enmity had existed for a long time, was, on the evening of November 30, 1898, on duty at a station of the San Francisco fire department, standing with two or three other firemen at a rope stretched across the main doorway on the public street, when the defendant came along, and without a word being spoken by any one, pulled out his pistol and fired two shots at him. The first shot was fired while the deceased was facing defendant, and at very close range, the parties not being over a foot or two apart. The deceased turned away, and immediately the defendant fired a second shot at him, when, according to the defendant's own testimony, the deceased fell. He died almost instantly, without having spoken a word after the shooting. No other shot was fired by anybody. Upon the person of deceased were found two wounds. On his very cursory examination, the surgeon immediately summoned, and who found the man dead, saw only a gunshot wound over the liver on the right side. Others who were present immediately after the shooting saw the two wounds. There was no pretense on the trial that the defendant did not kill the deceased, the defenses urged being self-defense and insanity, and entirely *204 independent of the deposition of the autopsy surgeon, the evidence was such that it was impossible to reasonably escape the conclusion that the cause of the death of the deceased was one or the other or both of the shots fired by defendant. The evidence in support of the plea of self-defense was most shadowy and unsubstantial, and directly opposed by the evidence of the several eye-witnesses. The most that can be said for the plea of insanity is that the evidence upon that subject presented a substantial conflict, and under well-settled rules the finding of the jury thereon is conclusive here.
Complaint is made that the trial court erred in admitting in evidence the deposition of Dr. Gallagher, the autopsy surgeon, taken upon the preliminary examination of the defendant. Although several specific objections are made upon this appeal to such evidence, the only objection made in the trial court, in addition to a general objection of immateriality, irrelevancy, and incompetency, was that the defendant had the constitutional right to be confronted with the witness. As to this objection, the claim is that subdivision 3 of section
There is nothing in the record tending to show that the transcript of testimony and proceedings before the magistrate was not properly authenticated or certified and filed as required by section
We, therefore, conclude that there was no error on the part of the trial court in the matter of this deposition. It is, *206 however, proper to say in this connection, that the testimony of this witness was, simply, that he held an autopsy on the body of the deceased, that he found two gunshot wounds thereon, and that the deceased came to his death from an internal hemorrhage following these wounds. It was so clearly shown by the other uncontradicted evidence that the cause of death was the shooting by defendant, that this deposition did not materially add to the case against defendant.
The defendant was a witness on his own behalf. He testified that, a few months before the homicide, he went to the house on Green Street, where his wife and children were living, for the purpose of seeing his son, who had just been severely injured by being thrown from a bicycle. On cross-examination he was asked: "Have you been to the house on Green Street for two years before you went to see your son?" and answered, over objection that the same was not cross-examination, "No." The objection was good. There was nothing in the direct examination warranting this question on cross-examination, and the matter elicited thereby was of such a nature that under ordinary circumstances it might well prejudice the defendant, by carrying with it the implication that he had unduly neglected his family. But under the peculiar circumstances of this case, there could have been no such prejudice. The defendant and his wife had been living separate and apart for several years. The children were with the wife, and, up to the time of the boy's accident, had visited him at frequent intervals. The defendant's claim was that his wife had abandoned him and the family home by reason of the persuasion of the deceased, and was living apart from him, and associating with the deceased, in open defiance of his wishes in the matter. It was this that constituted the basis of his plea of insanity. The theory of his case, as evidenced by his counsel's opening statement and the evidence of his witnesses, was that the relations between himself and his wife had been absolutely and irrevocably terminated by his wife, acting under the influence of the deceased. Inasmuch as his children came to see him at his own house, it could not be discreditable to him that he should fail to call at the house occupied by the wife, between whom and himself all relations had been severed. Moreover, on the cross-examination of one of his daughters, defendant himself elicited testimony to the *207 effect that he was never in the house occupied by his wife from the time she left him until the accident to his son.
We cannot say that error was committed in allowing witness Strothers to give his opinion, as an intimate acquaintance, as to the sanity or insanity of defendant. The witness had been acquainted with the defendant for four or five years, and saw and talked with him frequently. As we have said before, the determination of the question as to whether one is an "intimate acquaintance," and, therefore, competent under subdivision 10 of section 1870 of the Code of Civil Procedure, to give an opinion as to the mental sanity of another, is necessarily to a great extent within the discretion of the trial court, and the ruling of that court will not be disturbed except where the evidence is such as to leave no just room for question that the discretion has been improperly exercised. (People v. Suesser,
On cross-examination by defendant of a daughter, Miss Lottie Clark, a witness for the prosecution, she was asked whether she, or her mother, sister, or brother, had visited defendant in prison, and answered in the negative. The only possible object of this testimony was to show bias on the part of the witness and the others named against the defendant. On redirect examination, she was asked why she had not visited her father in prison, and, over objection, said that he had never requested it, and she thought he never cared to see her. In view of the cross-examination, this was probably proper redirect examination. However this may be, in view of the evidence given in support of defendant's case as to the relations between himself and his family, we do not see how this testimony could have prejudiced him. The same may be said of testimony of a similar nature given by the other daughter, which was undoubtedly erroneously admitted, there having been nothing in her cross-examination to warrant it.
The court instructed the jury quite fully and correctly upon the defense of insanity, and among other instructions on that subject, gave an elaborate one, wherein it was attempted to show the distinction between the diseased and deranged condition of the mental faculties rendering a person incapable of distinguishing between right and wrong in relation *208 to the act with which he is charged, constituting the insanity which the law recognizes as a defense, and mere moral insensibility, passion, hatred, anger, etc., which do not constitute a defense, and to caution the jury to observe the distinction. We find in this instruction no proposition that is not absolutely correct as a matter of law. The complaint made of it is that it is argumentative, and manifests such a strong partisanship adverse to defendant and his defense, as would lead the jury to infer that the court believed the defense of insanity here interposed was without foundation. We cannot assent to this conclusion. There is not in it the assumption of any fact, or, so far as the printed words show, the slightest intimation of any opinion on the part of the court, as to the merits of the defense in this case, and we cannot see that such was its general effect. It indicates no more than a commendable desire on the part of the court to have the jury thoroughly understand what is and what is not, in the eyes of the law, insanity constituting a defense in a prosecution for crime. The other instructions complained of were so manifestly correct as not to require notice here.
On the motion for a new trial, affidavits were presented in support of a claim that the trial judge and district attorney had been guilty of misconduct prejudicially affecting defendant's cause. If we assume, purely for the purposes of this decision, that such a claim may be urged in support of a motion for a new trial, and that the facts upon which it is based may be presented by affidavits, we find that all matters therein set forth as to which complaint might justly be made are controverted by the counter-affidavit of the district attorney, and that in regard thereto, a substantial conflict of testimony was thus made, which it was the province of the trial court to determine.
The judgment and order are affirmed.
Shaw, J., Sloss, J., Lorigan, J., McFarland, J., and Henshaw, J., concurred.
Rehearing denied. *209