106 P. 257 | Cal. Ct. App. | 1909
Appellant was informed against for the crime of murder, found guilty of manslaughter, and sentenced to imprisonment in the state prison for ten years. *704
It is contended in support of this appeal from the judgment and the order denying defendant a new trial that the evidence does not sustain the verdict, because the facts either establish murder or exonerate the defendant from the commission of any offense whatever; that the court erred in its rulings upon the admission and rejection of certain evidence specified; and that it also erred in giving certain instructions defining and relating to manslaughter and in relation to what acts upon the part of an assailant justify the taking of his life; also, that the court erred in refusing to give an instruction, requested by defendant, which declared the law relating to the right of a person assailed to stand his ground instead of retreating to avoid a conflict.
Appellant and the deceased, C. Kyle Smith, were miners and prospectors in Inyo county, between whom there had been disputes as to their respective rights in the mining claim upon which the defendant was working at the time of the killing, and as to the right of possession of certain miners' tools and appliances which defendant was using when he shot Smith. Smith was shot about 3 P. M. on November 21, 1908, and died at 9:30 o'clock the same night. Only Smith and defendant were present at the time of the shooting, but before Smith died he had a conversation with one Grant, who testified upon the trial to what Smith told him, and this was admitted as a dying declaration. In this statement the deceased said that "the Dago" (meaning defendant) shot him unexpectedly as he was going down the trail; that he was hit first in the back on the right hip. When told that he had hit defendant, he said he knew it; that he (Smith) was on the ground when he hit him and that defendant ran when he was hit. This statement was supported by the testimony of the physician who made a postmortem examination of the body of deceased. The physician testified that he had found a bullet wound on the back of the right hip, and also one in the back of one of deceased's thighs. In both instances the bullet passed upward and toward the front in its course, the former passing through the abdominal cavity. This corroborated the theory of the prosecution that Smith was traveling along a trail above the defendant when he was shot; it being the theory of the people that defendant lay in wait for the deceased in a cut or excavation below where he would pass along the trail. *705
The defendant testified upon his own behalf to the effect that he located the mine upon which he was working in May or June, 1904, that it bore no evidence of having been previously located, and that Smith posted notices and began work on the claim in 1906. On the morning of the tragedy defendant went to work in a cut on the claim, drilling, blasting and shoveling. A trail crossed above the face of the cut six, seven, or eight, or probably ten feet higher. The first he knew of Smith's presence that morning the latter, who was on the trail four or five steps away, spoke, saying, "What are you doing here?" and something else which defendant couldn't remember; "at that time he was on top, right on the cut where I throw the tools on that trail; I was right in the face of the cut." When defendant turned around toward him, he (Smith) "is yanking gun and pointing to me." Defendant made for the east wall of the cut to climb out, when he was shot in the arm; then he ran lengthwise of the cut to the dump (the cut was into the hillside), tumbled and fell on the dump, when Smith shot again, this time striking the defendant in the abdomen. While starting to run defendant tried to pull a magazine pistol which he carried in his pocket, but owing to his disabled arm had some difficulty in doing so, and when successful in this was still further delayed by the "safety," but finally succeeded in shooting, and (as described by him): "Then I begin to shoot. When I begin to shoot the ground gave out under my feet and I fall again, I begin falling on this side and I throw myself on this because this arm was sore; when I fall my gun fall off my hand. Of course I had been shooting and falling my gun get away from me, of course I tried to catch myself, throw myself on this side like this and the ground give out. I pick myself up and go get that gun back again. I never see Smith no more, never see him since." He further testified: "I did not know at the time I had hit him; I hurried to camp because I thought I was worse hurt than I was." The physician who dressed the defendant's wounds testified that there was a wound in the arm which was made by a bullet entering at the back and coming out at the front; also, that there was a crease across the defendant's abdomen, an abrasion of the skin.
We do not find the record entirely destitute of evidence upon which a verdict of manslaughter could be predicated, but in *706
the consideration of the objection that the evidence shows either that the crime of murder has been committed or that the defendant is innocent, we may, for that purpose, assume that there is some evidence tending to establish that the defendant is guilty of murder. As the offense of manslaughter is necessarily included in the charge of murder, and a conviction of the crime of manslaughter is equivalent to a verdict of not guilty of the murder (People v. Muhlner,
One of the witnesses for the people was asked on direct examination if he took the tools which were found near where defendant was working when the trouble began, and replied that he did not. Whereupon, over the objection of defendant, the prosecuting attorney was permitted to ask him, "Why didn't you?" and to which he replied, "I wasn't ready to die." This answer was, upon defendant's motion, stricken out, but it is contended that this did not cure the error, and that the answer was one expected by the counsel for the people, and was elicited for the purpose of creating the impression in the minds of the jurors that the defendant was a violent and dangerous person. We find nothing in the record to justify such an inference. The circumstances are entirely unlike those in People v. Rodriguez,
After the dying declaration of the deceased had been admitted in evidence, defendant sought to show on the cross-examination of one Kelly, a witness for the people, that when Kelly saw Smith after the shooting the latter was delirious. Upon Kelly testifying that it did not appear so to him, an attempt was made to lay the foundation to impeach Kelly by showing that he had made contradictory statements to other persons. The court sustained an objection to this and the ruling is assigned as error. It does not appear in any way from the evidence, or from any offer of proof made, that *707 the time referred to in these questions propounded to Kelly was the time at which the dying declaration was made to Grant. The latter testified without contradiction that he was alone with Smith at the time the statement was made, and we are unable to see the materiality of the evidence of Kelly which it was sought to impeach.
Rulings of the court assigned as Errors Nos. 3 to 7, and 9 to 14, inclusive, relate to the asking of questions by the prosecution, some of which were proper and others which, if material at all, were not prejudicial. The refusal to grant defendant's motion to strike out certain testimony, assigned as Error No. 8, was not prejudicial to the defendant. The answer desired stricken out bore upon the relations between the defendant and the deceased, and in so far as it affected the matter as to which it was material, if it were material at all, tended rather to sustain the view that the defendant intended merely to protect himself and his rights than to provoke trouble with the deceased.
Among the matters testified to in connection with the dying declaration was the following: The witness Grant was asked the question by the prosecuting attorney: "Did he [Smith] make any statement to you concerning his expectation of trouble?" This was objected to as calling for a self-serving declaration, and on the grounds that it was immaterial and irrelevant, not made in the presence of the defendant, and hearsay. The question was then withdrawn and the following propounded: "Q. Did he make any statement to you concerning whether he expected anything of that kind?" The same objections were interposed and overruled and an exception preserved by the defendant, and the witness answered: "He did." The witness was next asked: "What was that statement and in what connection was it made?" To this he replied: "He told me he didn't expect any trouble over the ground at all." No objection to this question was interposed, or motion to strike out the answer made, but when the next question was asked, to wit: "Did he make any statement to you as to how many times the defendant shot?" and this question answered, "Yes, sir," defendant asked to have the latter answer stricken out that he might interpose an objection, which motion was granted, and thereupon the objections which were made to the last question were overruled. *708
Section 1870, Code of Civil Procedure, which is the statutory provision as to dying declarations in this state, enumerates among the facts as to which evidence may be given upon a trial: "in criminal actions, the act or declaration of a dying person, made under a sense of impending death,respecting the cause of his death." The evidence to be so admitted has been construed to be restricted to the act of the killing, and to the circumstances immediately attending it and forming a part of the res gestae. (People v. Fong Ah Sing,
The assignments of error numbered 17 to 20 relate to the refusal of the court to permit the defendant to further cross-examine the witness Grant as to certain bloodstains upon the handles of a pick and shovel which the cross-examination disclosed the witness had seen on the morning after the trouble at the scene of the tragedy. The questions were not addressed to any matters as to which the witness had testified in his direct examination, and the rulings of the court were correct. *709 The matter might have been made a part of defendant's case, but was not cross-examination of this witness.
The instructions of the court defining manslaughter were properly given. The jury were not bound to accept as an entirety either the statement of the deceased or that of the defendant, but it was their duty to endeavor, from a consideration of all the evidence, to arrive at the true conditions of the shooting. Without reciting the testimony showing the relations of the defendant and deceased, from which the inference might be drawn that a quarrel arose in which either might have been the aggressor, we need only say in justification of these instructions that there was evidence upon which a verdict of manslaughter could have been predicated.
The giving of instructions Nos. 4 and 6 at the request of the people is assigned as error. The part of No. 4 material to the question before us reads: "The law of self-defense is founded on necessity, and in order to justify the taking of life upon this ground it must not only appear to the slayer, as a reasonable man, that he had reason to believe, and did believe, that he was in imminent danger of his life, or of receiving great bodily harm, but it must also appear to his comprehension, as a reasonable man, that to avoid such danger it was absolutely necessary for him to take the life of the deceased." No. 6 is substantially the same as instruction 4 considered and approved in People v. Bruggy,
Since the questions of law involved are practically the same, we may, in this connection, also consider the refusal of the court to give instruction No. 26, requested by the defendant. This instruction reads as follows: "Where one without fault is placed under circumstances sufficient to excite the fears of a reasonable person that another designs to commit a felony, or some great bodily injury upon him, and to afford *710 grounds for reasonable belief that there is imminent danger of the accomplishment of this design, he may, acting under these fears alone, slay his assailant, and be justified by the appearances; and where the attack is sudden and the danger imminent, he may stand his ground and slay his aggressor, even though it may be proved that he might more easily have gained his safety by flight." The attorney general finds no fault with this instruction as a declaration of the law, but contends that everything contained therein material to the defendant's case was embodied in instruction 27, given by the court. With this contention we cannot agree. Instruction 27 declares the law relative to the obligation of the person assailed to consider the question of retreat "while on his own property where he had a right to be," but No. 26 is not so limited.
If, in order to justify the taking of life in self-defense, it must appear to the person assailed, as a reasonable man, that it is absolutely necessary for him to take the life of his assailant to avoid losing his own life, or receiving great bodily harm, and the rule declared in No. 26, that "he may stand his ground and slay his aggressor, even though it may be proved that he might more easily have gained his safety by flight," is also the law, then the latter should be given in every case in which the facts require it in modification or explanation of the rule of "absolute necessity" stated in Nos. 4 and 6. Instruction No. 26 is apparently taken from People v. Hecker,
It is apparent, then, that upon the theory that he was without fault the defendant was entitled to have instruction No. 26 given that the jury might be informed, as a matter oflaw, that, if he were without fault, and the suddenness of the attack put him to the wall, the "absolute necessity" required by instructions 4 and 6 had arisen. (People v. Newcomer,
We do not think the Maughs case changes the rule as recognized above. What is said in that case upon this subject is rested upon the cases which we have cited and quoted from. The language of the instruction which was disapproved there was as follows: "Before a person can justify taking the life of a human being on the ground of self-defense he must, when attacked, employ all reasonable means within his power, consistent with his safety, to avoid the danger and avert the necessity for the killing." The rule quoted fromPeople v. Hecker,
Judgment and order appealed from reversed.
Allen, P. J., and Shaw, J., concurred. *712