36 P. 96 | Cal. | 1894
The defendant was convicted of an assault with a deadly weapon upon one Charles Schmidt, and this appeal is from the judgment and an order denying his motion for a new trial.
It is contended for appellant that he was prejudiced by the conduct of the district attorney, and by numerous alleged erroneous rulings of the court, during the progress of the trial, and hence that the judgment should be reversed. The matters complained of will be noticed briefly in their order.
Again, when the district attorney was making his opening argument, he read to the jury portions of the instructions of the court; and it is said that, conceding counsel in his argument may read the instructions of the court, still it is improper to read only portions thereof, “and those portions presumably the part bearing most strongly against the defendant; thus emphasizing that portion of the charge of the court most damaging to the defendant. ’ ’ The district attorney had the undoubted right to state to the jury the facts of the case and the law applicable thereto, and it must be presumed that, when he read portions of the charge, he was permitted by the court to do so, and that the portions read were applicable to the facts under discussion, and declared the law correctly. In this we fail to see any misconduct on the part of the attorney, or anything of which the defendant should be heard to complain.
One of the jurors called was a German. On his examination as to his fitness to serve, he was asked by counsel for defendant if he could speak and understand the English language with ease. He answered: “Well, I understand the English pretty well. Can talk it, but I can't write much. Can write a little. I can read pretty well.” “Q. Can you always understand what anyone says when they speak in English 1 A. I would not say I could always. In some cases I don’t think I could.” Other like questions were asked and answered, and the counsel then challenged the juror upon the ground that, according to his own statement, he did not understand the English language so as to comprehend all that might be said in his hearing. The challenge was denied, and an exception reserved. There was no error in this ruling. It
Another juror, on being called, was asked by counsel for defendant: “Do you think there are cases in which an aged and decrepit man might, on account of his physical infirmity, necessarily have to use a weapon to defend himself, whereas, in the same ease, a younger and stouter man might be able to resist whatever force was used without weapons ? ’ ’ An objection that the question was irrelevant and immaterial was sustained, and this ruling is assigned as error. Undoubtedly a case máy be supposed where an aged and decrepit man might be justified in using a weapon to defend himself when a young and vigorous man would not be. But to constitute justification in any case, the circumstances shown must be such as are declared by the statute to have that effect; otherwise, neither age nor decrepitude, youth nor vigor, would cut any figure in the case. In this case the law bearing upon the subject in hand was clearly and fully stated by the court to the jury, and we fail to see, therefore, how the defendant could have been prejudiced by the ruling complained of.
The prosecuting witness, Charles Schmidt, was not present at the trial. The district attorney called the under-sheriff of the county, and proved by him that a subpoena for Schmidt was placed in his hands for service more than two weeks before the trial, and that like subpoenas were sent to the sheriffs of the four adjoining counties, with directions to use every effort to find the witness; and that all of the subpoenas had been returned unserved. The said subpoenas, with the returns thereon, were offered in evidence, and the officer was then asked: “What other efforts, if any, have you made toward finding the whereabouts of the witness? A. We have made inquiry of every farmer of any prominence we could see in town, and Corning and Vina, and different parts, of the county. Q. All over the county and different parts of it? A. Yes, sir. Q. Have you been able from any and all steps taken by you personally, or by the office, to ascertain and find the whereabouts of the man Chas. Schmidt? A. I have not been"able to ascertain anything about where he went.” One Grinnell was then called, and testified: “I am official court reporter of Tehama' county, California, and was sworn to take
The objection that no proper certificate was attached by the reporter to the transcript cannot be entertained. The certificate is not set out in the record, and what was its form or character does not appear. If deemed insufficient, it should have been set out; and, not being so, it must be presumed to have been in proper form. The other objections to the transcript are without merit, and do not require special notice.
It was proved that, some ten or twelve years before the trial, defendant received a violent blow on the head, which rendered him unconscious and kept him in bed five or six weeks, and that his physical condition was greatly impaired by the blow. Several witnesses were then called by the defendant to prove that his mental condition was also greatly impaired by the blow. The evidence was objected to as irrelevant and immaterial, and the court held that it was so, unless the plea of insanity was set up. No such plea being interposed, the evidence was excluded and exceptions reserved. It is not claimed that defendant was an idiot or lunatic when he committed the offense charged; and, this being so, the evidence sought to be introduced was clearly immaterial, since he was responsible for his willful acts, whether he was then a strong or weak minded man.
Looking at the whole case, we find no prejudicial error, and therefore advise that the judgment and order be affirmed.
We concur: Searls, C.; Haynes, C.
For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed.