113 Cal. 80 | Cal. | 1896
Defendant was convicted of grand larceny, and appeals from the judgment and an order denying him a new trial. He assigns numerous errors.
1. The exceptions .taken in the impanelment of the jury are without merit. The course pursued by the trial judge as to the time and manner of requiring peremptory challenges to be exercised has been the established rule in criminal cases in this state for upwards of twenty-five years. (People v. Scoggins, 37 Cal. 679.)
The challenge for cause interposed by the prosecution to the juror Fulkreth was properly allowed. The challenge was sufficiently specific, and the juror, in having formed an opinion based upon hearing the sworn evidence taken on a former trial of the same case, was clearly disqualified.
Nor was there any error in disallowing the defendant’s challénge to the panel returned under the special venire. The necessity for the issuance of that venire arose from the want of a sufficient number of jurors remaining on the regular list to form a panel. The fact that the depletion of the regular panel may have arisen from too great a liberality on the part of the judge in allowing excuses to those summoned thereon cannot affect the regularity of the special venire, the matter of excuses being one of wide discretion, and nothing being made to appear to show its abuse. The special venire was
2. The constable who arrested the defendant was permitted against the defendant’s objections to testify to certain statements or declarations made by defendant in a conversation between them after the arrest, and this ruling is assigned as error.
The subject of the larceny was a calf, which was taken from the pasture of its owner, near the town of Porter-ville. In the evening before the theft, the owner having been informed that there was a calf tied down in his pasture, got a friend and the constable and drove out to the field. On the way out they met a two-horse wagon being driven rapidly toward town, but the night was too dark to enable them to identify the driver or the team. When they reached the pasture the calf was gone, but evidence of where it had been tied was found, and wagon tracks led from near the place to the premises of the defendant. The next morning a search of defendant’s premises was made by the constable, and in a shed on the place was found a quarter of beef or veal, the hide and the head and entrails on the floor. Upon this discovery, the constable remarked to defendant: “Jerome, this looks kind of suspicious”; and defendant answered: “Well, damned if it don’t.” Subsequently, in talking with defendant on the way to the jail, the constable referred to the incident of meeting the wagon on the evening before, and to quote his language as given in his testimony: “I remarked to him [defendant] that I had a notion to stop that wagon when we met it, or that afterwards I wished that I had stopped it; and he said that it was probably the best thing for me that I didn’t try to stop it; that if I'had attempted to stop it, I probably would not have stopped any more;—something to that effect. I don’t remember exactly the language he used.” Defendant objected to this conversation, and asked that it be stricken out, on the grounds that it was irrelevant, incompetent, and immaterial, and constituted a confession made under duress of arrest
Aside from the fact that the constable had testified that nothing was said or done by him to induce the defendant to talk, or any promise of clemency, or threats made to defendant, there was no error in the admission of the conversation in evidence. The statements or declarations of the defendant were in no sense a confession or admission of guilt, and did not require preliminary proof of their voluntary character. “A confession is a person’s declaration of his agency or participation in a crime. The term is restricted to acknowledgments of guilt.” (People v. Le Roy, 65 Cal. 613, and cases there cited.) The fact that these statements of the defendant, when considered with the other facts in the case, had a tendency to prove guilt did not constitute them confessions, or subject them to the rule applicable to the latter. “An admission of a fact, not in itself involving criminal intent, is not to be rejected as evidence (without the preliminary proof) merely because it may, when connected with other facts, tend to establish guilt.” (People v. Parton, 49 Cal. 637.) In this case, as in those above cited, the defendant did not admit his guilt, but denied it from first to last. The evidence was clearly within the rule of admissibility.
3. The defendant took the witness-stand in his own behalf, and gave testimony tending to exculpate him from the charge. In rebuttal the prosecution introduced a number of witnesses who testified that the general reputation of defendant in the community for truth, honesty, and integrity was bad. , This evidence was objected to by the defendant upon the grounds that it was irrelevant, immaterial and incompetent, and that its introduction was an unwarranted attack on the character of defendant, which was not in issue, and constituted misconduct of the district attorney in offering it. This objection was overruled, and the admission of the evidence is now urged as error. The evidence was properly admitted. The moment the defendant submitted him
A further objection is made in this connection. There were some six or seven impeaching witnesses in all put on by the prosecution. To all of them, except in two instances, the form of the questions calling for their knowledge was unobjectionable; the witnesses being asked, in the usual formula, if they knew “ the general reputation of the defendant for truth, honesty, and integrity,” etc. In two instances, however, the word 11 general-” was, whether by inadvertence or otherwise, omitted in putting the question. The objection interposed by defendant in each instance, including the two last, was the same as above stated, and no specific suggestion or objection as to the mere form of the question was in any instance made to the court or opposite counsel. Defendant now insists that in the two instances indicated his objection was clearly good, and. should have been sustained. In the first place, while it is true that the inquiry is to be confined to the general reputation of the witness, it is not necessarily true that this object can only be accomplished by using in all instances one stereotyped form of question. As, for example, in the case before us, in each of the two instances where the term “ general” was omitted in putting the question, the whole manner of the inquiry, and the character of the questions asked, evinced as clearly to the witness on the stand and the jury that it was the general reputation of the impeached witness that was being sought, as though that fact had been expressed in exact terms. This is all that is required. But, in the next
There are no other points requiring special notice. We find nothing reprehensible in the conduct of the district attorney or his assistant, either in the method of the examination of witnesses or their argument to the jury. The case would seem to have been conducted throughout with a due regard for the rights of the defendant. We have examined the other assignments, and find that they involve no error.
The judgment and order are affirmed.
Harrison, J., and Garoutte, J., concurred.
