123 Cal. 571 | Cal. | 1899
The appellant was convicted of murder in the second degree in killing Theodore R. Parvin, and has appealed from the judgment thereon. The circumstances attending the homicide are as follows: The appellant had leased to Parvin certain premises known as the “Hill Place,” and had also
The only person who witnessed the altercation was the father of the defendant, and at the trial he testified that he was at work about twenty or thirty feet away from where they were standing, while on opposite sides of the fence, and having his attention drawn to them by hearing Parvin speak in a loud tone of voice, saw him approach the defendant with uplifted hands, having a saw in one and a hammer in the other, and strike at him. Thereupon the defendant stooped down and picked up a stick from the ground and got over the fence into the corral. Parvin still had the saw and hammer uplifted in his hands, and, while striking at the defendant with the hammer, the defendant struck him across the head with the stick which he had picked up, which caused Parvin to fall to the ground, from which he almost immediately got up and walked over to the bam, against which he rested for a few minutes, and then went to another part of the corral and sat down. He also testified that the point in the corral at which Parvin was standing when the defendant struck him was about three feet east of the west fence of the corral and about twenty-five feet from the barn; that he fell toward the west with his head about a foot from the fence. Mrs. Parvin, the wife of the deceased, was in the dwelling-house and saw the defendant and her husband while they were in conversation upon opposite sides of the fence, but did not see the defendant strike her husband. She testified that very soon after she had seen them thus talking she was attracted by the loud voice of her husband, and went out upon the porch and saw her husband
The testimony thus given by Graham was clearly hearsay, and the court erred in admitting it. It permitted the jury to de termine the point at which the conflict took place by the statement of a witness based upon information derived from another not under oath, and the correctness of whose statement was not subject to a cross-examination by the defendant. The evidence was material, both for the purpose of illustrating the theory of the prosecution in conducting the trial, and for establishing the charge against the defendant by its corroboration of other evidence introduced against him; and that it was deemed material by the prosecution is shown by its efforts to secure its admission notwithstanding the objections of the defendant. Another witness for the prosecution, McClure, testified that in the after
The court also erred in permitting the club which McClure found in the corral to be received in evidence and exhibited to the jury. There was no evidence identifying the stick as the one with which the defendant struck the deceased, or in any way connecting the defendant with it. Both of the witnesses who testified to having seen the defendant and the deceased together in the corral stated that they wére unable to recognize it as the stick which the defendant had used, and the only other testimony relating thereto was that of the physician, who stated that the blow upon the head of the deceased must have been made by some rather large and smooth instrument, and that it could have been produced by such a stick. But, as it is evident from the description of the physician that the blow could have been produced by any other large and smooth implement, it was necessary that there should be some evidence identifying this stick as the one with which the blow was given before it could be offered in evidence. Otherwise the jury could only conjecture that it had been used by the defendant. (See Taylor on Evidence, sec. 557.)
The witness Graham testified to some measurements made by him of the fence on the 16th of February, and that he noticed that the top wire on the north side of the third post, at which it was claimed the defendant got over the fence into the corral,
Objections are made to certain instructions to the jury, but, as these objections relate to the form rather than to the substance of the instructions, and may be obviated upon another trial, it is unnecessary to discuss their correctness.
The motion to set aside the information was properly refused. (People v. Tarbox, 115 Cal. 57.)
The judgment and order appealed from are reversed and the cause remanded for a new trial.
Garoutte, J., McFarland, J., Temple, J., and Henshaw, J., concurred.