170 P. 817 | Cal. | 1918
Following defendant's conviction upon an information charging him with the crime of murder in the first degree he was sentenced to execution as provided by law. From the judgment so pronounced and an order denying his motion for a new trial he appeals.
In the summer of 1915 defendant, who is a colored man, went to the village of Simi in Ventura County, where he was employed as a laborer, and for sometime lived in a tent adjoining the home of a young girl named Josephine Rodrigues who lived with her grandmother, Adela Rodrigues, and a younger sister. In February, 1917, he was employed upon highway work, during which time he lived alone in a tent located some eight miles distant from Simi at a place called Hassan. On March 10th, while living at Hassan, he wrote a letter to Josephine Rodrigues, then sixteen years of age, and gave it to a boy, instructing him to deliver it to her. In this letter, which, however, never reached Josephine, he expressed a strong affection for her, and stated that he had heard she was going to marry another person, and therein made veiled threats of bodily injury to her if she married any one other than himself. On the night of March 10th Josephine, her sister, and her grandmother, Adela Rodrigues, all of whom occupied one bedroom in their home, retired, leaving, as was their custom, a lighted lamp turned low. Soon after 12 o'clock that night Adela was awakened by a noise in the room, and discovered a man with a cloth mask over his face standing near her bed. Receiving no reply to her call "Who are you?" she grasped the mask, pulled it down from his face to a point, as she states, below his nose, at which time the wearer thereof, using a razor, cut her hand and also her face, and then turning from her to the bed occupied by Josephine, he fired three shots from a pistol, two of which entered her head, causing her death, and then left the house. The cries of the grandmother aroused the neighbors, who, upon information given by her as to the identity of the perpetrator of the crime, proceeded in an auto to defendant's camp at Hassan, eight miles distant, arriving there approximately at 2:30 A. M. They found no one at the tent occupied by defendant, and received no response to the calls made for him in the vicinity. A short time thereafter another party seeking his apprehension arrived and found defendant in the tent. His shoes and clothes were *407 damp and covered with mud, indicating that he had recently been walking in the wet grass and weeds. During the time that defendant lived in the tent adjoining the home of Adela Rodrigues she had often seen him pass the house, and in positive and unequivocal terms she identified him as the man who entered her room, assaulted her with the razor, and fired the shots which killed Josephine.
No evidence whatsoever was offered by defendant in response to that adduced by the prosecution, thus unerringly pointing to him as the perpetrator of the atrocious deed. Nevertheless, we are asked to reverse the judgment upon the ground of alleged errors whereby it is claimed the accused was prejudiced in his substantial rights.
1. At the preliminary examination the magistrate in reading the complaint upon which the warrant of arrest was made as required by section
Clearly, it cannot be held under these circumstances that the omission to more precisely comply with the requirements of the section in any way prejudiced any substantial right of the defendant.
2. It appeared from the testimony of F.W. Burnell, called for examination as a juror, that he had conscientious scruples against inflicting the death penalty because in his opinion no sane man would take the life of a fellow-being, and even though as a juror convinced that defendant committed the murder as charged, he would not vote to convict if his conviction was to be followed by judgment of death. The showing made on hisvoir dire disclosed that Burnell was clearly disqualified to act as a juror, since he had conscientious scruples against following the plain mandate of the law. The challenge interposed by the prosecution was properly granted.
3. While questioning a proposed juror on his voir dire,
counsel for defendant inquired of him whether the fact that *408
defendant was of the colored race would in any way affect his judgment in passing upon his guilt or innocence. Thereupon the court expressed doubt as to the propriety of the question, and as to the weight to be accorded conflicting evidence between a white and a colored witness, and said: "Where all other things are equal the jury has to decide one way or the other on the question of credibility. If every other thing is absolutely equal he has to decide one way or the other and I am not altogether clear that in such a case the shadow of color should not be permitted to weigh." Defendant claims that this remark was prejudicial because made in the presence of other veniremen. Such fact, however, is not disclosed. Conceding the impropriety of the statement and that it was made, as claimed by defendant, in the presence of those thereafter called as jurors, no objection was made thereto, and no request made by appellant to admonish the veniremen present to disregard the remark. As stated in People v. Kramer,
4. The court instructed the jury to the effect that they must be satisfied beyond a reasonable doubt of defendant's guilt, and thoroughly and fully explained to the jury the meaning of the term "reasonable doubt," and, hence, no prejudice could have resulted from an instruction to the effect that defendant's guilt might be established by proof of facts and circumstances from which it may be reasonably and satisfactorily inferred.
5. Complaint is made that the court erred in instructing the jury with reference to evidence of circumstances in mitigation of the offense, and particularly in stating to the jury that "when the killing is proved it devolves upon the defendant to show any circumstances in mitigation to excuse or justify the homicide by evidence on his part." The instruction *409
clearly conforms to the provision contained in section 1105 of the Penal Code. (People v. Wilt,
6. The giving of two instructions complained of, one of which is identical with that given in People v. Rogers,
7. And, likewise, what is said by this court inPeople v. Worden,
8. In the light of the entire evidence we have carefully examined lengthy instructions requested by defendant, and in so far as they embodied proper questions for the consideration of the jury the subjects thereof are fully covered by instructions elsewhere given.
9. It is next claimed that the court should have granted defendant's motion made after trial for an order inquiring into the sanity of the defendant. No affidavits were offered in support of the motion, and no evidence was introduced on the trial in support of a defense based upon the insanity of defendant. Section
10. Upon the ground that it was involuntarily made, the court excluded from evidence a purported confession of the defendant made on March 12th. Over defendant's objection upon the ground that it was sought thereby to elicit evidence of an admission not voluntarily made, but obtained as the result of persistent questioning of the defendant on the preceding day when the confession so excluded was made, the undersheriff was permitted to testify that on the morning of March 13th he met the defendant and asked him what he did with the gun after the shooting, to which defendant replied that he "put the gun on the other side of the bridge at Simi about half way between the bridge and the culvert down on the right-hand side on a sloping bank in some weeds." It further appeared that a gun was found at or near the place described by the defendant, which, over defendant's objection that it was not shown to have any connection with the crime, was received in evidence. The two rulings are assigned as error. The action of the court in permitting the answer of defendant was based upon the fact that the persistent interrogating of defendant the preceding day, the purpose of which, as shown by the record, was to ascertainwhy he committed the crime, did not then operate upon his mind or influence him in telling where he placed the gun after the shooting. In other words, there was no causal connection between the answer given to the undersheriff and the means which on the preceding day induced the making of the confession, the nature of which is not shown. If defendant on March 13th in making the answer to the undersheriff was free from any influence due to the persistent interrogation on the preceding day, the statement was voluntary. The trial court so determined, and there is nothing in the record upon which we can say it erred in so doing.
As to whether the revolver received in evidence was the one with which the killing was done admits of doubt, but the objection to its reception in evidence goes to the weight of *411 such evidence rather than to its admissibility. Conceding that if such was the fact and the proof at hand it should have been shown that the bullets causing decedent's death corresponded to the caliber of the gun, nevertheless, the admissibility thereof in evidence is unaffected by the failure to establish such fact.
The record discloses no prejudicial misconduct on the part of the district attorney. The rulings of the court were eminently fair and the uncontradicted evidence, both direct and circumstantial, was such that it is impossible to conceive of a verdict other than that rendered by the jury.
The judgment and order are affirmed.
Richards, J., pro tem., Shaw, J., Melvin, J., Sloss, J., and Angellotti, C. J., concurred.
Rehearing denied.
