THE PEOPLE, Respondent, v. THOMAS P. HAYDON, Appellant
Crim. No. 167
Third Appellate District
March 25, 1912
Petition for Rehearing Denied by Supreme Court May 24, 1912
18 Cal. App. 543
ID.—TEST OF INCREDIBLE TESTIMONY.—Testimony, in order to bear upon its face such improbability as to render it unbelievable, must involve a claim that something has been done that it would not seem possible could be done, under the circumstances described, or involve conduct that no sane person would be likely to do.
ID.—PROVINCE OF APPELLATE COURT AND OF JURY.—Appellate courts are not authorized to review the evidence, except when, upon its face, it may be justly held that it is insufficient to support the ultimate issue involved, in which case it is not an issue of fact, but purely one of law. Such courts are in no position to determine the credit of witnesses, or to weigh their testimony, which is the sole province of the jury in a criminal case. In the present case, the jury were authorized, in the discharge of their duty, to accept the testimony of the brother of deceased as to the facts of the homicide, however weak it may be in other respects, and to reject any evidence contrary to his testimony as to such facts.
ID.—INAPPLICABILITY OF AMENDMENT OF CONSTITUTION TO REVIEW OF CONFLICTING EVIDENCE.—The recent amendment of the state constitution by adding section 4½ of article VI thereof (Stats. 1911, pt. II, p. 1778), prohibiting reversals in criminal cases for error, “unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice,” is inapplicable where no error appears in the case upon any question of law, and the verdict is sustained upon conflicting evidence.
ID.—CONSTRUCTION OF AMENDMENT—PROVISION OF CONSTITUTION LIMITING APPELLATE COURTS TO “QUESTIONS OF LAW” UNAFFECTED.—The appellate court deems it certain that “said amendment was not intended to change, nor has it changed, the very sensible rule pre-
ID.—COMMENT BY SUPREME COURT IN ORDER DENYING REHEARING.—In the order of the supreme court denying a rehearing, in this case, that court commented thus on the foregoing statement of law: “This court regards this statement as wholly unnecessary to the decision of the case. The denial of the petition for a rehearing is not to be construed as an indication of approval or disapproval of said statement by the supreme court.”
ID.—EVIDENCE—POSTAL CARD AS TO STRAYING CATTLE.—It is held that there was no error prejudicial to the defendant in the admission in evidence of a postal card received by the father of deceased from the owner of an adjoining range as to the whereabouts of his cattle, and on which the father, addressing his sons, had written a request that if they saw the writer, to “thank him for telling us.”
ID.—CROSS-EXAMINATION OF BROTHER OF DECEASED—WOUND RECEIVED—RELATIVE POSITION—ERROR WITHOUT PREJUDICE.—It was error to reject a question asked on cross-examination of the brother of deceased as to whether his position was not on the left-hand side of defendant when he received two wounds in his right arm, for the purpose of making it appear that the shots were accidental, when he was firing at deceased, merely on the ground that the question was “purely argumentative“; but it is held that, in view of other evidence, the error was wholly without prejudice.
ID.—ADMISSION OF BLOODY GARMENTS OF DECEASED—CORROBORATION OF WITNESS FOR PROSECUTION—INTENTION OF MORTAL WOUND.—The court did not err in admitting in evidence for the prosecution the bloody over and under shirts worn by deceased at the time of the fatal shot, as part of the case for the prosecution, in corroboration of the evidence of the brother of deceased as to the homicide, and to show that the shot fired by defendant took effect in a vital part of the body, as indicated by the garments, and the intention of defendant to inflict a mortal wound.
ID.—SUSTAINING BURDEN OF PROOF—PEOPLE NOT REQUIRED TO ANTICIPATE POSITIONS OF DEFENDANT.—The people, in the maintenance of the burden upon them of proving the guilt of the defendant, are not bound to anticipate the contentions or concessions, if any, which the defendant intends to make, or to assume that certain matters or theories supporting the hypothesis of guilt will not be disputed by defendant.
ID.—ABSENCE OF DEFENDANT FROM CORONER‘S INQUEST—EVIDENCE NOT PREJUDICIAL.—It was not prejudicial to the defendant for the prose-
ID.—BAD REPUTATION OF DECEASED FOR PEACE AND QUIET—PROPER CROSS-EXAMINATION—LOCAL FACTIONAL DISPUTE.—Where evidence was introduced to show that the reputation of the deceased for peace and quiet in the community where his family resided was bad, it was proper to allow the district attorney to ask, on cross-examination, whether such reputation was not owing to a local factional fight on the liquor question, not involving any other question, although the deceased is not shown to have belonged to one of those factions.
ID.—CROSS-EXAMINATION OF WITNESS FOR DEFENDANT—INTOXICATION DURING TRIAL.—It may be shown from the cross-examination of a witness for the defendant that he was, during practically all of the time of the trial, under the influence of intoxicating liquors, as bearing upon the witness’ memory or want of memory as to the testimony given by him, where the cross-examination showed justification for the inquiry.
ID.—EVIDENCE OF GOOD CHARACTER OF DECEASED FOR PEACE AND QUIET—IMPROPER CROSS-EXAMINATION—ASSAULT UPON HONESTY AND INTEGRITY.—Where a witness had testified to the general good reputation of the deceased for peace and quiet, in a place where he lived for three years, it was not admissible to inquire on cross-examination as to incidents affecting his honesty and integrity. Such inquiry was not relevant for any purpose. The true rule as to character evidence, in a criminal case, is that it should be confined to the trait of character in issue, and should bear some analogy and reference to the nature of the charge.
ID.—UNFRIENDLINESS OF WITNESS FOR DEFENDANT TOWARD FAMILY OF DECEASED—CROSS-EXAMINATION AS TO ENMITY—IMPEACHING EVIDENCE.—Where defendant admitted unfriendliness toward the family of the deceased, but denied positive hostility, on cross-examination the prosecution had the right to lay the foundation for impeaching evidence that he was so hostile to them that he had stated that he had leased land to the defendant in order that he might kill the sons if they drove his horses off of the range. The fact that such impeaching evidence had a far-reaching effect against the witness is not a ground upon which impeaching evidence may be excluded, the only remedy being to have its effect limited by an instruction.
ID.—ABSENCE OF PREJUDICIAL ERROR IN RULINGS OF COURT.—It is held that no prejudicial error appears in the rulings of the court upon the admission or exclusion of evidence, and that no ground appears in the record for a reversal of the judgment and order appealed from.
The facts are stated in the opinion of the court.
Bush & Hall, and C. William White, for Appellant.
U. S. Webb, Attorney General, and J. Charles Jones, Deputy Attorney General, for Respondent.
HART, J.—There are, generally speaking, but two points upon which reliance is based for a reversal of the judgment and order, from which the defendant, convicted of murder of the second degree, prosecutes the appeal to this court, viz.: 1. That the evidence does not justify and support the verdict; 2. That the court committed a series of serious and prejudicial errors in the allowance and disallowance of answers to certain questions propounded to the witnesses.
The defendant was prosecuted for the crime of murder on an information, filed in the superior court in and for the county of Trinity, by the district attorney of said county, it being therein alleged that he unlawfully and with malice aforethought destroyed the life of one Morris H. Norgard.
The only witness to the homicide, other than the defendant himself, was a brother of the deceased, Cervera Norgard, a lad of a little less than thirteen years of age at the time of the homicide. His, therefore, was the only direct testimony received on behalf of the people. The circumstances of the killing as detailed by him do not accord, as might naturally be expected, with the circumstances of the homicide as related by the defendant, and thus there arises a sharp conflict in the evidence bearing upon the circumstances under which the act of killing was committed. But counsel for the appellant, with full appreciation of the rule which admittedly has always heretofore applied, and which we think still applies where a verdict is challenged for insufficiency of evidence to sustain it and there exists a substantial conflict in such evidence, contend, nevertheless, that the testimony of young Norgard is, upon its face, so plainly improbable or unbelievable that this court, which, so it is asserted, must, of necessity, thus view the boy‘s version of the homicide and its
1. The homicide occurred on the twenty-first day of December, 1910, in a region of Trinity county known as Long Ridge.
The deceased, at the time of his tragic death, was about twenty years of age and was the son of Chris. Norgard, who, with his family, resided at Covelo, in Mendocino county. The latter was, however, the owner of a stock range, adjoining that of the defendant, in Trinity county.
The defendant, about one month previously to the day on which the killing occurred, purchased from one John D. Wathen the latter‘s stock range. Shortly thereafter the defendant drove his band of horses to the Wathen range and, with his family, took up his residence on said place. At about the same time, the defendant, with one J. S. Rorobough, entered into an agreement whereby the first named was permitted to graze his stock on the latter‘s range, comprising a large area of land situated in the neighborhood of the Norgard range, and which said land he (defendant) was making preparations to buy under his said agreement with Rorobough.
Upon the Norgard range was a cabin, situated about two miles from the Wathen place, and in which the Norgard boys lived when engaged in looking after and caring for their father‘s stock grazing upon the latter‘s range.
It appears that a feeling of intense hostility had developed between the Norgards and John D. Wathen, who sold, as seen, his range to the defendant. Wathen had married the daughter of Chris. Norgard against the latter‘s wishes, and, while this fact was the ostensible genesis of the ill-feeling between them, it was the theory of the defense that the real motive for the hostility of the Norgards against Wathen was to so annoy and pester the latter as to inspire in him a desire to leave that region of country and thus, hoped the Norgards, they would be able to secure the ownership of the Wathen range, which they had for a long time coveted, for a price much below its actual value. The Norgards, so the defendant contends, therefore, kept up a persistent persecution of the Wathens
The evidence discloses that, up to approximately a month prior to the death of the deceased, the latter had been engaged in some employment in Shasta county. His father, however, having requested him to return home and assist in looking after his stock on the Trinity county range, the deceased returned to Covelo, taking with him a new automatic “five-shot” rifle. A few days thereafter the deceased went to his father‘s range and with his brother, Elmer, there took charge of affairs and remained until the day of the homicide.
Cervera Norgard, the day before the homicide, went to the range, taking with him for his brothers and from his father a message, calling attention to the whereabouts of certain cattle belonging to the Norgards which had strayed from their range, information as to the whereabouts of said cattle having been communicated to Chris. Norgard by a neighboring land owner through a postal card.
As to the circumstances immediately leading to and ending in the homicide, Cervera Norgard testified, in substance, as follows: That, on the afternoon of the day of the homicide, he and the deceased mounted their horses and started out over the range to look after their cattle. The deceased carried the automatic rifle referred to in a scabbard attached to his saddle. After traveling about the range for some time, and just before sundown, they came across the horses of the defendant, grazing on their range. They at once proceeded to drive the horses off the range in the direction of the Wathen place. They had not gone far when they were fired upon by Haydon, who had suddenly and unexpectedly made his appearance “across the gulch,” at a distance of about one hundred yards from the boys. Haydon fired twice at the boys at this time, but without effect. The witness declared that neither his brother nor himself paid any attention to this circumstance, neither accelerating their speed
The witness said that they drove the horses “up the hill” to a trail leading to the Wathen range. After traveling over said trail for a short distance they came to a “flat,” where they “let the horses go” and themselves started across the flat. They had proceeded only a very short distance when they again saw Haydon, this time standing behind a pine tree, with his gun in his hand. The deceased was riding ahead of the witness and, as they approached the pine tree, Haydon stepped out and called either the witness or his brother “a black s—n of a b—h.” Haydon used some other bad language which the witness could not recall. However, neither of the boys made any reply to the defendant and started on in the direction of a pasture on their father‘s range, some two or three hundred yards from the pine tree mentioned. Haydon, although holding his gun in his hands, made no effort to use it at the pine tree. While the boys proceeded toward the pasture referred to, Haydon walked out to the edge of the flat, still holding his gun and watching the young men. After looking over the pasture from the hillside to which they had gone from the flat, the boys turned their horses and retraced their steps toward the flat and in the direction of the point at which the defendant was standing. When they had reached a point about fifty yards from the point on the hill from which they had viewed the pasture, the deceased removed his rifle from its scabbard and delivered it over to Cervera, saying: “Here is my gun, Cervera; I ain‘t afraid of Haydon, and don‘t want any trouble with him.” When the boys reached the “flat,” Haydon had returned to the pine tree behind which he stood when the boys first came into the “flat,” and, as they were in the act of passing him, Haydon, addressing them, said: “Are you going to keep on driving my horses?” to which the deceased answered, “Yes, I will, if you are on our land,” whereupon the defendant fired at the deceased. At this time, the witness was about twenty feet behind the deceased. Immediately
Cervera declared that neither he nor the deceased shot at the defendant, nor did they attempt to do so. He testified that, before meeting Haydon, the deceased fired a shot from his rifle at a quail and also one at a woodpecker.
The defendant‘s story of the shooting is, briefly, as follows: That, at about 3 o‘clock on the afternoon of the day of the homicide, he left the Wathen place on horseback, taking with him a 25/35 Winchester rifle. He went “over on the ridge, west of the creek,” where he could look down Eel river. After having been on the ridge a short while, he saw “somebody get around and put the dogs after” his horses and start them in the direction of the point at which he was standing. As the horses approached him he saw that Cervera and the deceased were driving them. When the boys came near where the defendant stood the latter, addressing them, said: “I want you fellows to quit running my horses,” to which the deceased replied: “You go to h—l, you old s—n of a b—h. I will run your horses to h—l, you old s—n of a b—h.” He then accused the boys of running the horses off the Rorobough land (under lease to defendant), and the deceased made a reply in language similar to that in which he first addressed the defendant. The boys then left Haydon and went “around the hill the way
We have now given a synoptical statement of the testimony of Cervera Norgard, upon which the state chiefly relied for the establishment of its case and upon which the jury in the main manifestly based their verdict, and also the story of the defendant as to the circumstances directly leading to and attending the shooting.
There was, it is true, other testimony introduced on both sides relating to the number of shots fired and heard by persons who at the time of the homicide were in the vicinity of the place where it occurred, and also involving certain declarations of the parties relevant to the issues before the court. This testimony, like that of Cervera Norgard and of the defendant as to the circumstances of the shooting, was conflicting.
But, as stated, the principal contention of the appellant with regard to the evidence is that the testimony of Cervera Norgard is inherently improbable, and that the jury, therefore, were unwarranted in believing it or basing a verdict against the accused upon it. This contention grows out of a
It rarely happens that a case is presented on appeal in which some inconsistencies in the testimony of certain witnesses may not be discovered. These inconsistencies may be due to various causes. It is perhaps quite true that in some instances they are occasioned by the deliberate untruthfulness of witnesses, but more often they are due, we apprehend, to the forgetfulness of witnesses or perhaps to the fact that the occurrences to which they have testified have come about under circumstances that have put the witnesses in such a state of excitement as to cause them to view the incidents which they are required to describe as occurring in a somewhat different way from that in which they may have actually occurred. It is commonly known that there seldom arises a case upon the circumstances of which the witnesses precisely agree in all respects, and yet it by no means necessarily follows that in such cases some one or more of the witnesses have willfully given false testimony relative to the matter to which they have testified. Some one or more may be mistaken, or, as often happens, some might have observed circumstances that others did not. But whatever may be the cause of such differences, it is true that they occur in nearly every case of disputed questions of fact. If, therefore, every case taken to the appellate courts were to be reversed because of discrepancies or contradictions in the testimony of witnesses without whose testimony a verdict of a jury or the findings of a court could not be sustained, there would, indeed, be few cases in which a reversal would not be compelled upon the ground of the insufficiency of the evidence to support such verdict or findings. Reviewing judges are, obviously, in no position to determine the credit which should be ac-
But counsel for the defendant declare that the recent amendment to the constitution (
Guided by the rules as we thus understand them, we have examined the record in this case, and, therefore, as to the testimony of Cervera Norgard, we are justified in saying that we perceive nothing in his statements that he and the deceased paid no special attention to the alleged first shots fired by Haydon and that after such shots were fired they proceeded leisurely up the hill, driving Haydon‘s horses, without looking back to observe the defendant‘s movements, so startling as to render that portion of his testimony “inherently improbable,” so that it may be held by an appellate court that thus, upon his evidence, upon which the verdict was chiefly founded, a question of law is presented. It may readily be conceded that it would seem unreasonable that the witness and the deceased, having been shot at twice by the defendant, made no preparation to defend or to shelter themselves against further assault by their antagonist. In other words, it would no doubt be regarded as unusual conduct upon the part of any sensible person to do and act as the witness testified that he and the deceased did and acted under the circumstances mentioned. But, on the other hand, it is not in a sense uncommon to find persons so imperturbable to physical fear that they will unflinchingly and desperately and, very often, unnecessarily, pursue a course of conduct involving the greatest physical peril to themselves and which the average person would not be guilty of. Yet we cannot see how it could be held, from the mere statement itself disclosing such conduct, that such statement is not true or is improbable upon its face. A statement, to bear upon its face the brand of improbability, or which may be said to be unbelievable, per se, must involve, we think, a claim that
2. Cervera Norgard, having been asked by the district attorney why he went to Long Ridge a few days prior to the homicide, explained, in reply, that his father had sent him there with a message, to be delivered to his brothers, relating to certain of his cattle that had strayed from his range—a circumstance to which we have already adverted. This message was in the form of a postal card which had been received by Chris. Norgard at Covelo from the owner of a range situated in the neighborhood of the Norgard range, informing Norgard of the whereabouts of said cattle, and on which Chris. Norgard, addressing his sons, had written these words: “If you see Holtorf [the writer of the postal card] be sure and thank him for telling us.” The postal card, in connection with Cervera‘s testimony, was offered by the people and, over objection by the defendant, admitted in evidence by the court. That portion of the postal card particularly objected to involved the request by Chris. Norgard that Holtorf be thanked for giving the information concerning the strayed cattle, and the argument directed against it is that, the prosecution having anticipated an attack by the defense against the character of the Norgard family generally, hoped to impress the jury that said family maintained a good standing with their neighbors, from the fact that one of such neighbors had taken the pains to notify them of the whereabouts of their strayed cattle. We have not been able to discover any particular or substantial purpose that could be subserved by the introduction of the postal card in evidence, since there is nothing in the record to indicate that Cervera went to the range for any other purpose than that stated by him, and since it is an undisputed fact that he was on the range on the day of the shooting and witnessed the fatal affray. Yet it is very clear that the mere fact that it was thus made to appear that Chris. Norgard desired that his gratitude be expressed to a neighbor for voluntarily giving him information concerning his missing cattle would not necessarily establish, nor could it even have a very strong tendency to establish, in the minds of the jury, a general good reputation for the Norgard family either for honesty and integrity or peace and quiet in the neighborhood in which the latter‘s range was situated.
3. To the following question, propounded on cross-examination to Cervera Norgard by one of the attorneys for the defendant, the court sustained the objection that “it is purely argumentative“: “As you ran anywhere from this cross [referring to a point marked on the map used at the trial] to the point directly north of the pine tree—in fact, all of the time your left side was directed to him [defendant], wasn‘t it?” The evidence disclosed, it will be remembered, that Cervera received two wounds in the right arm, his testimony being, as it will also be recalled, that, after mortally wounding Morris H. Norgard, the defendant shot at Cervera while the latter was running from the scene of the killing. The theory of the defense at the trial was, and it is so argued here, that the first shot fired by the defendant at the deceased, having missed the latter, struck Cervera, who was near the deceased at the time of the firing of said shot and in range of the bullet from defendant‘s rifle. The object of the cross-examination of Cervera in that particular was, therefore, to show that he did not tell the truth in his recital of the circumstances under which he received his wounds; that, as a matter of fact, instead of being shot while fleeing from the spot where his brother met his death, he was accidentally shot by the defendant as above related.
We do not think the question was improper or is amenable to the objection upon which the court disallowed an answer thereto, yet we think that the ruling was without prejudice for the following reasons: A map of the immediate vicinity in which the homicide occurred and on which all the important physical objects thereabouts were delineated and on which
4. The court did not err by allowing to be received in evidence the over and under shirts worn by the deceased at the time he was shot. These articles were introduced in connection with the testimony of Cervera Norgard. Counsel for the defendant complain that, since there was no dispute as to the character of the wound inflicted upon the deceased by the
5. The witness Travis, who was a member of the jury summoned by the coroner to inquire into the cause of the death of the deceased, was asked by the district attorney whether the defendant testified at the inquest, and whether there was anything said about taking his testimony. No objection was interposed to these questions and the witness answered them in the negative. He was then asked whether Haydon appeared at the scene of the homicide, where the inquest was held, while the investigation was in progress. To this question an objection on general grounds was made and overruled. The answer was that the defendant was not present at the inquest. It is here argued that the ruling was erroneous and prejudicial. It was, in our opinion, imma-
6. The same witness having, shortly after the homicide, appeared at the scene of the shooting and with others examined the ground thereabouts in search of empty cartridge shells, was asked on cross-examination at what distance from the point where the body of the deceased lay he ceased looking for shells. To this question an objection by the people was sustained on the ground that the same question had been asked by counsel for the defendant and answered by the witness several times previously. The ruling was proper. The witness had before been asked some three or four times how far from the body he had gone looking for shells. Once he answered that he went no farther than eight or ten feet from the body. At another time he said that he went “ten, twelve or fifteen feet.” It is evident from these answers that the witness could not have given the distance any more accurately than was thereby given, and the question to which objection was sustained could, therefore, have accomplished no more in that regard than was disclosed by said answers.
7. The witness, Ornbaum, testifying on behalf of the defendant, declared that the general reputation of the deceased for peace and quiet in Round Valley, Mendocino county, where the Norgard family reside, was bad. On cross-examination the district attorney sought to show by the witness that for many years the residents of Round Valley were
8. What we have said with respect to the rulings on the cross-examination of the witness Ornbaum disposes of the exceptions to the rulings of the court permitting a similar cross-examination of the witness Lacy Gray, who testified on his examination in chief that the reputation of the deceased for peace and quiet in Round Valley was bad.
9. It is contended that the court erred to the prejudice of the defendant by allowing the district attorney to go into the question, on cross-examination of the witness Palmer (stepfather of John Wathen), whether the witness had been, during practically all the time in which the trial had been in progress, greatly under the influence of intoxicating liquors. The witness, in behalf of the defendant, had testified that a few weeks prior to the day on which the homicide occurred and about six months previously to the trial of this case he had a conversation with Chris. Norgard, in Covelo; that he (the witness) called on Norgard for the purpose of selling or offering to sell him the Wathen place; that Norgard said that he would not buy the place, and that if any other person
10. The witness, Reid, having testified that the general reputation of the deceased for peace and quiet in the Mad river section of Trinity county was good in the years 1903, 1904 and 1905, was asked the following question on cross-examination by counsel for the defendant: “Did you hear of his being accused of robbing the Mason & Thayer safe at Douglas City?” To this question an objection by the district attorney was sustained. It is now argued with apparent earnestness that the ruling was erroneous and prejudicial. But we cannot take that view of said ruling. In the first place, the witness was asked nothing concerning the general reputation of the deceased for those traits of character essentially involved in the crime of robbery, of larceny or of burglary. In the second place, in view of the nature of the charge upon which the defendant was on trial, it would have been manifestly improper to have prosecuted an inquiry on the direct examination of the witness for the purpose of developing the general reputation of the deceased for honesty and integrity. The question was, therefore, neither proper cross-examination, nor in any sense relevant. It does not follow, as the question necessarily assumes, that, because a person may be wanting in honesty and integrity, he cannot at the same time be of a quiet and peaceable disposition in the sense in which the last-mentioned traits become important on an issue as to which of two combatants in a physical encounter was the aggressor or culpable party. Testimony relative to the reputation for peace and quiet borne by the actors in an affray leading to the prosecution of one or both for a criminal offense necessarily involving those traits is generally intro-
11. We now come to the last point involving rulings on the evidence upon which we feel impelled to bestow special attention. The proposition thus presented is the most important of the many submitted on this appeal, and its solution will require a careful review of the circumstances giving rise to it.
It will be recollected that John D. Wathen intermarried with the daughter of Chris. Norgard, and that on account of said marriage a feeling of hostility was generated between the Norgards and Wathen. The latter, while used for certain purposes as a witness for the people, was also called to testify in behalf of the defendant. Testifying for the latter, he said
Wathen admitted, on his direct examination, that, although on friendly terms with the Norgard family prior to his intermarriage with Norgard‘s daughter, after that event his relations with his wife‘s family had always been unfriendly; but, on cross-examination, the district attorney asked him whether his feeling toward the Norgards was not very bitter, to which question he replied in the negative, saying, however, that he merely had “no use” for the Norgards. To show the intensity of his hostility toward the Norgards, the district attorney questioned the witness as follows: “Q. Did you send for Tom Haydon to come in there and take your property off
No objection was made by the defense to any of the foregoing questions so propounded to Wathen.
In rebuttal, the people called said English to the stand and, over the objection of the defense, were permitted to ask him the following question, to which he made an affirmative answer: “I will ask you whether or not he [referring to Wathen] stated to you on that occasion [the time and place having been given] ‘that he thought he had sold out to the right man, all right, and that the first time that Haydon caught the boys running his horses he would shoot them off their horses.‘”
The specific objection to this question was that it called for testimony relating to a collateral matter, brought out by the people themselves, and by which they were bound. The asserted theory upon which the question was propounded and an answer thereto allowed was that it was in impeachment of Wathen on a matter which was material, because it affected or involved the question of his credibility as a witness.
While we think that the district attorney could perhaps have well rested this phase of his case on the statement of Wathen that, at the time of the trial and for some time before the homicide, he was on unfriendly terms with the Norgards,
But Wathen admitted, in answer to questions to which no objection was interposed, that he might have made the remarks which English declared that he made in the conversation mentioned, and from that admission the jury could have reasonably inferred that he at least entertained the opinion which English said he expressed as to what Haydon would do with the Norgard boys if the circumstances indicated arose. No person will, ordinarily, admit that he might have expressed an idea or an opinion to which he has no recollection of giving utterance if that idea or opinion had never entered his mind, and the average mind would so construe such an admission. Under this view, the testimony of English, even if it might correctly be held to have been improperly allowed, could not have had the effect of damaging the defendant much, if any, more than Wathen‘s admission that he might have made the remarks attributed to him by English.
We have now given special attention in this opinion to all the assignments of error growing out of the rulings on the admission and rejection of evidence, with the exception of those numbered 2, 6, 7, 8, 9, 10, 14 and 15 in the order in which these assignments are discussed in the defendant‘s opening brief. As to the last-mentioned assignments, it may
We have with equal care and much patience examined the whole record, consisting of eight large volumes of the stenographer‘s transcription of the testimony and the voluminous briefs, exhaustively and ably treating the numerous points pressed upon us for a reversal of the judgment and the order of the trial court, but we have thus discerned no just reason for declaring that the defendant was not fairly and legally tried and justly convicted. The judgment and order are, therefore, affirmed.
Chipman, P. J., concurred.
Burnett, J., concurred in the judgment.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on May 24, 1912, and the following opinion then rendered thereon:
THE COURT.—The petition of defendant for a rehearing of this cause in the supreme court is denied.
The opinion of the district court of appeal contains the following passage concerning section 4½, article VI, recently added to the constitution:
“But if there is one proposition in connection therewith of which we entertain no feeling of uncertainty, it is that said amendment was not intended to change, nor has it changed, the very sensible rule prescribed by the constitution and for so many years strictly adhered to in this state, that, in the exercise of their appellate jurisdiction, the appellate courts are restricted to the consideration of questions of law alone, and that, therefore, as before stated, the matter of evidence does not constitute a subject of review by those tribunals, except where there necessarily arises from the evidence or is presented thereby, from its very nature, a question of law.”
This court regards this statement as wholly unnecessary to the decision of the case. The denial of the petition for a rehearing is not to be understood as an indication of approval or disapproval of said statement by the supreme court.