163 P. 879 | Cal. Ct. App. | 1917
Defendant was charged with the crime of murder, it being alleged in the information of the district attorney that he did, on the tenth day of June, 1916, in the county of Los Angeles, feloniously and with malice, kill one Soledad Juarez. By the verdict of the jury defendant was found guilty of the crime charged, in the second degree thereof, and judgment followed accordingly. The appeal is taken from the judgment of imprisonment and from an order denying a motion for a new trial.
The deceased was the wife of Filomeno Juarez, and at the time she received the fatal wound she resided with her husband in a two-room house in the city of Los Angeles. Juarez, the husband, was a laborer and was acquainted with the defendant, the two men having theretofore worked as section-hands on a railroad near Los Angeles. On the tenth day of *612 June, 1916, Juarez met defendant at about 3 o'clock in the afternoon on the street. Defendant informed Juarez that he was going to San Pedro to work, and urged Juarez to accompany him. Juarez's reply to the invitation was that he could not decide the matter without consulting with his wife. Juarez returned to his home later in the evening, where he resided with his wife and some small children. According to testimony given by the husband, he and his wife retired to bed in the front room of the house at about 9 o'clock; the screen door at the front being closed and latched and the inner wooden door being closed. Shortly after they had retired there was a knock at the front door, and upon Juarez opening it he found the defendant Herrera there. Juarez testified that Herrera invited him to accompany him to a neighboring wine cellar for a drink, which invitation was declined, and Herrera was also informed that Juarez would not go to San Pedro to work. Thereupon the door was closed by Juarez, who, it may be gathered from his testimony, then returned to his bed. Almost immediately, so Juarez testifies, some shots were fired by Herrera, and the wife, who had gone to the door to hold it shut, received one of the bullets through her body. This wound caused her death, which occurred the following day. The testimony was that three shots were fired through the door. Upon the woman being shot, she cried out and called to a neighbor to send for the police, and a telephone message conveyed to a branch police station the alarm. Two policemen in an automobile hurried to the scene, and one of these officers testified that he found Herrera at the door; that when the officers approached, the defendant dropped a gun and placed his foot upon it; that they arrested the defendant and upon examining the gun found it to be fully loaded. The wounded woman was taken to a hospital and defendant transported to the jail. Other witnesses who were aroused by the alarm testified that they observed the defendant at the door of the Juarez house immediately after the shots were fired, and that he was trying to get into the room where Juarez and his wife were. It was given in evidence that after his arrest the defendant made a statement to the police officers admitting the firing of the shots, and stating that he shot because Juarez would not go with him to San Pedro. The substance of the defendant's testimony was that, while he was at the house of *613 Juarez on the night in question, Juarez quarreled with his wife, and the gun, which had been handed to the defendant, was discharged when Juarez grappled with the defendant, and that the gun went off by accident. Contrary to the assertion made on behalf of appellant that the evidence upon which the conviction was had was meager, and that upon the facts a "close case" was presented, we think there was abundant evidence to warrant the jury in determining the guilt of the defendant. Several alleged errors are relied upon as constituting grounds for reversal.
An instruction was offered on the part of the defendant, declaring that a witness false in a material part of his testimony "is to be" distrusted in others, and that where the jury was satisfied that a witness had so sworn falsely they "must" treat all of his or her testimony with distrust and suspicion. The court modified the instruction to make it read that a witness willfully false in a material part of his or her testimony "may be" distrusted in others, and that the jury "might" treat all of his or her testimony with distrust and suspicion under such circumstances. The particular complaint is that the instruction as offered contained a correct statement of the provisions of section 2061 of the Code of Civil Procedure, which declares: "3. That a witness false in one part of his testimony is to be distrusted in others." It was, indeed, held in the case of White v. Disher,
It is next complained that the court erred in refusing to instruct the jury that the fact that defendant did not flee from the scene of the shooting, was of itself a circumstance in his favor. In the case of People v. Montgomery,
The charge also is made that the jury received evidence out of court which improperly influenced their consideration of the case. It appears that at the trial the door which was identified as being the same door through which the three bullets were fired by the defendant was introduced in evidence and exhibited to the jury. It showed the three bullet holes, and the testimony was that they were the ones produced by the shots fired from the defendant's revolver. A blackboard had been used to illustrate the testimony of witnesses and upon which was drawn a diagram of the scene of the crime. After the jury had been instructed and was about to retire, a juror requested that the jury be permitted to have the blackboard and door. These two articles were carried into the jury-room without any direction on the part of the *615
court and were left there before the jury entered the room. The exhibits which the jury took with them into the jury-room were not included among those things which by section
The contention that the alleged incriminating statements made by the defendant to the police officer were improperly received because of a lack of sufficient foundation authorizing the evidence to be introduced, seems to be without merit. *616 The officer giving the testimony stated that no inducements were held out or improper influence exerted by himself or any other person to his knowledge, and that the statements were free and voluntary. The mere fact that the defendant may have been in charge of other officers and in jail prior to the making of the statement which is viewed as a confession did not make it incumbent upon the prosecution to produce all of those officers and to prove that they in their respective turn had not by improper influence persuaded defendant to declare himself in the manner he did to the officer who gave evidence as to the statements.
An examination of the entire record in this case impresses us with the conviction that defendant was given a fair trial. No sufficient reason has been furnished why the judgment or order should be disturbed.
The judgment and order are affirmed.
Conrey, P. J., and Shaw, J., concurred.