113 Cal. 618 | Cal. | 1896
The appellant was convicted of felony in stealing a blue steer, and has appealed from the judgment thereon and from an order denying a new trial. The evidence connecting him with the taking of the animal was sharply conflicting, and testimony impeaching nearly all of the witnesses who testified on either side of the case was presented to the jury. Under these circumstances the sufficiency of the evidence to sustain the verdict is not open for examination.
Appellant contends that the conduct of the district attorney was such as to prejudice his case before the jury, and to prevent him from having a fair and impartial trial. While it may be conceded that the language of this officer was not at all times characterized by the urbanity of a Chesterfield, and that his manner,
Exceptions were taken to statements made by the court during the trial, concerning the testimony of witnesses as being an invasion of the province of the jury. These statements were made in answer to objections by counsel to the admission of certain testimony, or in ruling upon such objections, and were in no respect instructions to the jury with reference to the evidence. It very frequently occurs at a trial that the sufficiency of an objection to a question depends upon the presence of other evidence in the case—such as whether it is proper cross-examination, or relevant to what was stated on direct examination, whether a proper foundation has been laid, whether the form of the question properly meets the statement of a witness already given, whether the testimony offered is merely cumulative. Such objections are directed to the court, and, for the purpose of sustaining its ruling, it is frequently necessary for it to
Witnesses were also called on behalf of the defendant for the purpose of sustaining the testimony of other witnesses that the prosecution had attempted to impeach, and upon the cross-examination of these witnesses the prosecution was allowed to question them with reference to specific acts. While it is not permissible to give evidence of wrongful acts for the purpose of impeaching a witness, it is proper upon cross-examination .of a witness who has given testimony, either for sustaining or impeaching the credibility of another witness, to question him with reference to his knowledge of specific acts, and with reference to the specific acts themselves, for the purpose of overcoming the effect of his testimony upon the direct examination.
A witness on behalf of the defendant testified that on. the night when the animal was taken he met Ruiz, one of the witnesses for the prosecution, driving a dark colored animal; that the moon was up and shining, and the night was pretty light. On being asked what time of the night it was, he said that he was unable to tell,
Numerous exceptions were made on behalf of the defendant to the rulings of the court on the admission of evidence, but none of them are of a nature to require particular consideration. There was no error in permitting answers to the questions in the early part of the trial relating to George Vanderkarr. Ruiz subsequently testified that Vanderkarr and the defendant were driving the steer together on the night it was taken, and these questions relating to Vanderkarr would have been proper after the testimony of Ruiz had been given. That they were admitted out of the proper order of developing the case does not constitute error. The order of proof is a matter within the discretion of the court. The statement by Ruiz that Vanderkarr told him that the defendant had lost a hat while they were chasing the steer was not hearsay, as Ruiz testified that it was told in the presence of the defendant, and also that the defendant at the same time gave the reason why he lost it.
The court did not err in refusing to give the instructions asked by the defendant. No error was committed by recalling the jury, and giving an additional instruction in the absence of the defendant’s counsel. The defendant was himself present, and the court directed that an exception be entered in his behalf to the instruction thus given. It is stated in the bill of exceptions that before giving the instruction the court caused his attorneys to be called and searched for in the courthouse, and also sent officers to look for them, but that they were not found. •
The judgment and order are affirmed.
Van Fleet, J., and Gakoutte, J., concurred.