75 Cal. 108 | Cal. | 1888
Lead Opinion
The defendant was convicted of murder in the second degree, for the killing of one Herman Haines, and was sentenced to sixteen years in the state prison.
The shooting occurred in the store of one Cohen, in the town of Santa Paula. The evidence tends to show that the two men met in the store, and that Haines bid the defendant “Good morning” as he passed him, whereupon the defendant exclaimed: “You dirty scoundrel, how dare you speak to me?” and taking him by the throat, slapped his face several times. Cohen, the storekeeper, then threw his arms around the defendant and held him, doubtless with a view to put an end to the struggle. Haines then ran to the corner of the store,
Three wounds were found upon Haines,—one in tne shoulder, one in the abdomen, and one in the thigh. According to a physician, either of the two former were sufficient to cause death, but the wound in the thigh was not dangerous. There is some' evidence to the effect that the wound in the shoulder was from the first shot, but there is nothing to show the order of the other wounds. Haines died in three or four days after being shot.
The defense was, that the shooting was necessary for the defendant’s protection. He gave evidence tending to show that Haines had threatened to kill him, and that he had been informed of such threats, and introduced evidence tending to show the following facts:—
Haines and his son, a boy about sixteen years old, were in defendant’s employ upon a ranch which he was managing. One day, a short while before the shooting, he intercepted a letter from Haines to his (defendant’s) wife. This letter was as follows: “Mrs. Dye: Meet me at the barn to-night, or I will tell Joe about that medicine. Answer. H. Haines.” Underneath this, on the same paper, was written: “I return your insult, and I say to
This letter was brought to Mrs. Dye by Haines’s son. On taking it from the boy the defendant gave him a whipping, and the next day paid off and discharged both him and his father, and wrote to Haines never to speak to him again.
This evidence, as a matter of course, was not admissible to justify the taking of Haines’s life. But it was admissible in connection with Haines’s threats, for the purpose of showing that the threats were not mere idle vaporings, but came from a man who had, or thought he had, a grievance, and were therefore to be heeded.
During his testimony as to the above matters, the defendant stated that after the affair of the letter, his wife left the ranch to visit her mother in San Francisco. This seems to us to have been an irrelevant circumstance. We cannot see what the movements of Mrs. Dye, after the difficulty as to the letter, had to do with the defense made. When she came on the stand, and had testified concerning the affair of the letter, the prosecution drew from her on cross-examination the information that she had not gone to visit her mother in San Francisco, but had gone to Los Angeles, and went on to cross-examine her, against the objections of the defense, as to her movements there,—eliciting the statements that she staid at Stone’s lodging-house, and that on one occasion she had gone to Congress Hall saloon to see the proprietor, one Baker, and had seen one Crow there. She was also cross-examined as to whether her husband had sent her to see Crow, but she denied that he had.
After this cross-examination the defendant introduced evidence tending to show that at the time of the affair of the Haines letter he discovered that his wife had had improper relations with the Crow mentioned in the cross-examination above referred to, and that a correspondence had been kept up between them through the
We hardly see why the defense should have wanted these facts in evidence. But they were admissible on behalf of the defendant, upon the same principle that the Haines letter was admissible; viz., in connection with the threats of Haines, and to show that there was a grievance between the two men, and that the threats were in earnest, and therefore to be heeded.
The defendant went on to introduce a letter from his wife to Crow, written about three days after the Haines letter affair, in which she stated that she was in trouble, and asked him to send her fifty dollars by registered letter, under cover to Haines.
The prosecution then drew out on cross-examination that at the Congress Hall saloon interview she demanded one thousand dollars from Crow. Hot getting that, she demanded three hundred dollars. She got forty dollars or fifty dollars. In this connection she testified, “ My husband and I had separated at that time.” She denied that the defendant had told her to make the demand upon Crow, or to go to see Baker.
In rebuttal the prosecution' was allowed, against the objection of the defendant, to go into the Congress Hall saloon interview, and to prove that Mrs. Dye there stated that the defendant had sent her there for the purpose of getting money out of Grow, and that when she got some money she wrote to the defendant to “ drop everything; there is no occasion for to make any further trouble.”
. We have been thus particular in stating the proceedings in order that it may be seen how far away the court traveled from the issue it was trying; viz., whether the killing of Haines wa's justifiable. Mrs. Dye’s attempt to get money out of Crow had nothing to do with this issue. The fact that the evidence in rebuttal tended to contradict some of the things she said on cross-examination
The irrelevant evidence, so introduced by the. prosecution, was very prejudicial to the defendant’s case. It held him up to the jury as attempting to make money out of his wife’s shame. The prosecution might, with equal propriety, have undertaken to get a verdict by proving that he was a horse-thief or a black-leg, or any other thing calculated to expose him to contempt. In a case which is at all doubtful, such a course would be almost certain to produce a conviction from an average jury. It is contrary to the first principles of justice to try a man for one crime and convict him of that, because he may be guilty of another, or because he may be a low specimen of humanity.
The fact, therefore, which was sought to be shown was not proper for the consideration of the jury. But if it had been, the mode of showing it was improper. It consisted in proving that at the time she demanded
There are other matters argued which will probably not arise upon a retrial. But we deem it proper to say that it is an exceedingly doubtful matter whether the witness Granger should have been permitted to testify as to the genuineness of the Haines letter.
We think, also, that the following part of the charge is somewhat confused: “ The law does not require demonstration in evidence to establish a fact; that is, such a degree of truth as, excluding the probability of error, produces absolute certainty, because such proof is rarely possible. Moral certainty only is required,” etc. If “ the probability ” of error need not be excluded, then evidence is sufficient although it leaves error probable. This hardly amounts to moral certainty or proof beyond a reasonable doubt. The word “ possibility” would be better in this connection. .
,So it was not accurate to tell the jury that the defendant was justified in the killing, “ if necessary for his own protection,” etc. It would have been better to have said “if actually or apparently necessary,” etc. (See People v. Gonzales, 71 Cal. 577; People v. Flahane, 58 Cal. 249.)
So we think it would have been better to have given the instruction on pages 481 and 482 of the record, referred to on pages 43 and 44 of appellant’s brief.
We advise that the judgment be reversed, and the cause remanded for a new trial.
Concurrence Opinion
—For reasons given in the foregoing opinion, the judgment is reversed, and cause remanded for a new trial.