85 Cal. 39 | Cal. | 1890
In the petition for and in the argument upon rehearing, it is suggested that in Department we fell into error in relation to the evidence in regard to the pieces of candle left at the saloon by the plumber. We stated that he left three half candles there, and that three pieces of caudle were found at the time of the fire. Our attention is now called to the fact that, according to the testimony of the plumber himself, he left one whole candle, a half candle, and a piece of another half candle; and that, according to the other evidence, only
As requested, we have carefully re-examined the evidence, and after such examination, we still fail to see how we can disturb the verdict on the ground of insufficiency of the evidence.
Upon the decision in Department, we were not free from doubt as to the correctness of instruction 10i, and we readily acquiesced in the prayer for a rehearing, that the case might be further considered upon that point. That instruction reads as follows,—the portion of it which we place in italics being the portion to which exception is taken:—■
“ One of the defenses in this case is called an alibi; that is, that the accused was elsewhere at the time the offense is alleged to have been committed. If this is true, it being impossible that the accused should be in two places at the same time, it is a fact inconsistent with the charge sought to be proved, and excludes its possibility. This is a defense often attempted by contrivance, subornation, and perjury. The proof, therefore, offered to sustain it is to be subjected to a rigid scrutiny; because, without attempting to control or rebut the evidence of facts sustaining the charge, it attempts to prove affirmatively another fact wholly inconsistent with it; and this defense
It is claimed that this charge is in direct conflict with and overrule's the decision of this court in People v. Bushton, 80 Cal. 160. We are unable to discover in the whole or any part of this charge any such conflict, or to see how it can work any such result. There is certainly nothing in the language adopted by the court below tending toward advising the jury that the defense of alibi must be made out by a preponderance of evidence, or to change the rule laid down in the Bushnell case, that “ if, upon the whole case, they entertained a reasonable doubt, from the evidence, as to his guilt, he should be acquitted.” So far from this, the charge concludes with the express direction that “it is for the jury to decide where the truth lies, giving the defendant the benefit of every reasonable doubt.”
Stripped of their context, the words which we have italicized in our quotation of the charge as a whole, though not new in such a place, would be objectionable. They have been both approved and condemned by able jurists at different times and in different states. If they had been given in this case free from all their context, and the case was one -where we could conceive it possible that the verdict turned upon the question of the truth or falsity of the evidence given in support of the defense of alibi, we should be inclined to hold that the
This is the more particularly so since there is no conflict in or contradiction of the evidence offered by the defendant tending to prove an alibi. The prosecution made no attempt to impeach the truth of that evidence, but, accepting it as true, relied upon the proposition that the train was laid and the candles lit before he closed the saloon for the night. The question for the jury to
It is in view of this theory of the case that appellant insists that it was error to admit the evidence of what is termed the candle “experiment.” We held in Department that the admission of this evidence was entirely in the discretion of the court; that the court was not bound to suspend the trial to try the experiment over again in the presence of the jury, as the court would undoubtedly have received evidence of other experiments made for the same purpose, if any such had been offered.
The proof of the result of experiments was equally as open to the defendant as the prosecution; and if other experiments would have shown a different result from that shown by the experiment proved by the prosecution, the defendant had ample opportunity to show the fact. The books are full of authorities sustaining the court in admitting evidence of the result of experiments in chemistry, in toxicology, and particularly in the use of fire-arms, for purposes similar to that for which this evidence was admitted. It has been quite a common, thing, in cases of homicide, to make experiments with fire-arms, to determine the carrying distance, the penetrating force, and the distance to which fire will be carried by fire-arms of certain pattern and caliber, and to prove the results of such experiments at the trial, as tending to show the guilt or innocence of the accused. The experiment in this case was one of a similar character, and for a similar purpose. Its result was not conclusive, but a mere circumstance to be considered in connection with the other evidence in the cause. It was both competent and admissible; its weight was for the jury to determine. We cannot agree with counsel that it was the “material and effective” evidence in the cause. The material and effective evidence on that branch of the case was the substantive fact of the
We are also reminded of the age and of the reputation of the defendant, and of the severity of his punishment. His age and reputation were matters addressed to and undoubtedly considered by the jury. Notwithstanding them, the jury have found against him, and on evidence of such a character that we are not at liberty to disturb their verdict. In view of his age and reputation, the severity of his punishment may excite our sympathies, but it cannot control our judgment. The penalty imposed by the court below was not in excess of that prescribed by law; and upon the assumption of his guilt, upon which alone any penalty could be imposed, no mild punishment would have been commensurate with the offense; for it was no light offense to attemjit, at midnight, to burn a hotel in which more than a hundred people .were sleeping.
Judgment and order affirmed.
Sharpstein, J., McFarland, J., Thornton, J., and Beatty, C. J., concurred.
Paterson, J., and Works, J., dissented, on the ground that the court erred in giving instruction 10^.
The following is the opinion of Department One, above referred to, rendered on the 5th of December, 1889:—
Information against the defendant for the crime of arson, verdict of guilty, motion for new trial made and denied, and judgment of imprisonment. Defendant appeals from the judgment, and from the order denying his motion for new trial.
On the night of January 24, 1888, a fire broke out in the basement of the New United States Hotel, at Los Angeles, the fire being discovered and the alarm sounded at 12:45 o’clock. Said basement was at the time occupied by the defendant as a saloon. The evidence leaves no possible doubt that the fire was incendiary, and that fact is not disputed; but it is claimed that the evidence was insufficient to show that the defendant committed the act, and that several errors occurred during the trial, in the admission and rejection of evidence, and in the charge to the jury.
It is established by the evidence that the defendant was the lessee of this basement, and in it was carrying on a saloon, which was not at the time a prosperous concern. A few days before the fire he had made an effort to sell it at auction, but could not realize at the sale the limit which he had placed upon it, and the sale was not made. The limit fixed was two thousand dollars. The stock and fixtures were insured for two thousand five hundred dollars. When the fire was first discovered it was seen through a window, and was located behind the bar. When an entrance was effected, the bar was all ablaze, and the room was stifling with the smoke of coal oil. Even after the fire was extinguished, persons could not remain in the place long at a time, because of the strong smell of coal oil. A coal-oil measure and a five-gallon coal-oil can were found in the room, near where the fire started; also, rags, straw, and other refuse matter were found near the fire, and at several points in the room, saturated with coal oil, as also were the walls, counters, and floors. According to defendant’s testi
The owner of the building testified, among other things, to a conversation had with the defendant some time before the fire, in which defendant said he could not pay the rent, and desired to sell out, saying that if he could not sell out for sixteen hundred dollars he would “ have to sell out to the insurance company.”
The evidence on the part of the defense shows that the defendant closed up the saloon at about eleven o’clock that night; that during the evening several persons had been in the saloon and noticed no smell of coal oil; that some of them remained until the saloon closed, and saw the defendant when he locked up and left the place, and they observed no smell of coal oil or other unusual occurrence or proceedings about the saloon. According to the testimony of the defendant, he went almost directly home and went to bed. Other evidence show's that he did, not long after the time when it is proved the saloon was closed up, go home and go to bed, where he remained until notified of the fire.
Under this evidence, the defendant relies upon proof of alibi, and want of proof of motive. We have given but a brief summary of the principal points in the evi
Exception is taken to the ruling of the court in admitting the testimony of the witness Rhodes. The objection was taken to his evidence as a whole, the counsel refusing to make specific objections to particular parts of it. The court did not err in overruling that objection.
Nor was there any error in the rulings of the court in reference to the admission of the testimony of the witnesses Wheeler and Kinnie. That evidence was entirely with reference to the adjustment of the loss, and was introduced as showing the amount of loss as agreed upon and the value of the stock remaining, as ascertained in the course of adjustment in the presence of and with the assistance of the defendant. It tended to prove motive, and was admissible for that purpose. It was not conclusive, and did not preclude the defendant from introducing other evidence as to value.
The rulings of the court in sustaining the objections to the questions put to the witness Mesmer on crossexaminatioq were not erroneous. Counsel had already drawn out from the witness that the hotel was mortgaged for fifty thousand dollars, and that it, with its contents, was insured for sixty-five thousand dollars. The questions objected to were irrelevant and incompetent, and not calculated to prove over-insurance or motive in Mesmer to set the fire.
It was a matter resting entirely in the discretion of the court to admit proof of the candle experiment. It would probably have admitted similar proof on the part of the defendant, if any had been offered, but the court was not bound to stop the proceedings of the court and try the experiment in open court, as proposed.
It is claimed that the court erred in giving the eighth and ninth instructions. We fail to perceive anything in either of which the defendant can complain. Both state the law correctly and clearly, and counsel fails to show any reason why they should not have been given.
There was nothing in instruction No. 10£ of which the defendant can complain. The court correctly laid down the law as to the effect of the proof of alibi, and in cautioning the jury as to the propriety or necessity of carefully scrutinizing such evidence, adopted language which has several times met the approval of this court.
(People v. Wong Ah Foo, 69 Cal. 180; People v. Lee Gam, 69 Cal. 552.)
Judgment and order affirmed.
Works, J., and Paterson, J., concurred.
Rehearing denied.