56 P. 98 | Cal. | 1899
Defendant, Jeremiah Denomme, was charged by information with the crime of murder, alleged to have been committed upon one C. B. Molbeek, at the county of Fresno. Upon his plea of not guilty a trial was had and a verdict of guilty of manslaughter returned, upon which he was adjudged to punishment for five years in the state prison. This appeal is from the judgment, and from an order denying defendant’s motion for a new trial.
1. Appellant claims that the evidence does not justify the verdict. The homicide occurred in a saloon. Deceased was quite drunk, although able to walk. Shortly before the assault he had been drinking at the bar with two other men, when some trouble arose, and the bartender knocked one of the party down. Defendant was not one of those three, but was in the saloon at the time. Just after this occurred, deceased started to go toward the rear of the saloon, and on his way passed near defendant, who was standing near a safe, talking with another person. A witness, who was sitting at a card table at the time, facing the bar and the parties, saw deceased as he approached defendant, and testified to. what deceased said, as follows: “ ‘It is a—’ I couldn’t tell whether he said, ‘You are a son-of-a-bitch,’ or whether he said, ‘It is a son-of-a-bitch of a shame for to hit a man like that. ’ Something like that. I know the ‘shame’ was brought in. I don’t know whether he called this man [defendant] a son-of-a-bitch,
2. Appellant assigns error in not allowing defendant’s attorney, Mr. Crichton, to argue the law to the jury. The facts are brought to our attention by affidavits and counter-affidavits. It appears that the court, on its own motion, interrupted counsel, when about to read an instruction which counsel supposed had been previously settled by the court. It does not seem necessary to state fully the facts set forth in these affidavits. There is nothing in them to distinguish the case from other cases which have arisen and have been decided by this court. In some of the superior courts of the state the practice is to settle the instructions, as far as possible, before argument to the jury, and to allow counsel" unrestricted use of these instructions in arguing the case. This practice is by no means universal, however, and is not at all obligatory. It is discretionary with the court whether counsel shall be permitted to use the instructions before the jury: Boreham v. Byrne, 83 Cal. 23, 23 Pac. 212. In People v. Carty, 77 Cal. 213, 19 Pac. 490, it was held that the court properly refused to permit counsel to argue the law to the jury in his opening address. The orderly procédure in criminal trials is laid down in title 7, Penal Code. It is the duty of the district attorney and the counsel for the accused to place the evidence before the jury, and at its conclusion they may or may not, as they wish, “argue the case to the court and jury.” “The judge may then charge the jury, and must do so on any points pertinent to the issue if requested by either party; and he may state the testimony and declare the law”: Pen. Code, sec. 1093. Except on a trial for libel, “questions of law are to be decided by the court, questions of-fact by the jury; and although the jury have the power to find a general verdict, which includes questions of law as well as of fact, they are bound, neverthe
We concur: Britt, C.; Haynes, C.
For the reasons given in the foregoing opinion the judgment and order are affirmed.