30 Cal. 448 | Cal. | 1866
The defendant asked the Court to give the jury the following instruction : “ That the defendant is not required to prove where he was or how he was engaged when Mark Hammock was killed ; but the prosecution must establish beyond a reasonable doubt that he was at Ahearn’s and shot Mark Hammock, or the jury will'find the defendant not guilty.” The Court gave the instruction, but also added the following: “But if the jury are convinced, from all the evidence in the case, that defendant killed the deceased as charged in the indictment, it is not necessary to his conviction that any witness should have seen the defendant in the vicinity of the scene of the homicide at the time, or on the night of its occurrence.” Defendant claims that the Court erred in adding to the instruction as asked. It is not claimed that there is any
The only other point made, is, that the evidence is insufficient to justify the verdict.
We have carefully examined the testimony, and we cannot say that the evidence is such that we should be justified in setting aside the verdict on that ground. The evidence connecting the prisoner with the homicide is circumstantial, if is true, but there is a chain of facts well established by the testimony, all of which point directly to the defendant as the guilty party. There was a motive clearly shown arising out of the quarrel between deceased and the prisoner’s brother, Josiah, which quarrel the prisoner, on various occasions, manifested a disposition to take off his brother’s hands, and for reasons given. The murder was committed about ten o’clock at night, by shooting deceased through the window at - Ahearn’s saloon, where a raffle for a horse belonging to the deceased had taken place that evening. The contemplated raffle had been generally talked about in the neighborhood, and was generally known. The fatal charge consisted of five bullets, and must have been fired from some smooth bore gun. The report was unusually loud, indicating a very heavy charge. The prisoner lived with his brother some three miles distant from the scene of the murder in the direction of the Forrest House. On the afternoon preceding the murder, the prisoner and the deceased had been at the Forrest House. Late in the afternoon the deceased left, going in the direction of Ahearn’s saloon, and the prisoner soon after followed in the same direction. A little before sunset the prisoner arrived at his brothér’s house, where he resided, and found a boy with a double-barrel shot gun, which he borrowed of the boy on the pretense of going quail hunting the'next day. The gun was
These are the leading facts, although there are some other particulars. There was, then, a motive for the homicide, and the prisoner had reason to believe that deceased would be at the place of the murder at the time of its commission. He had the means in his possession to commit the homicide, and they were procured just at the right time for the occasion, and corresponded precisely with the means by which the deed was
The point is made by the Attorney-General that this Court has no jurisdiction under the Constitution to review a verdict upon a question of fact—that its appellate jurisdiction is limited to “ questions of law alone.” (Const., Art. VI, Sec. 4.) But the point was not argued by him, or referred to at all by the appellant’s counsel, and the conclusion which we have attained upon the point as to the sufficiency of the evidence, obviates the necessity of deciding it. For these reasons we shall for the present reserve the question.
It follows that the judgment must be affirmed, and it is so ordered, with directions to the District Court to appoint a day for carrying the sentence into execution.