123 Cal. 482 | Cal. | 1899
Lead Opinion
Defendant was informed against for the murder of his wife. He was tried and convicted of murder in the first degree, the jury fixing the penalty of death. His motion for a new trial was overruled, and, being sentenced, he
The points urged for a reversal are technical, and do not go to the merits. Many of them are in reference to the impaneling of the jury, disallowing challenges on the part of the defense, and allowing challenges on the part of the prosecution. It is claimed that the court erred in disallowing defendant’s challenges to ten of the jurors impaneled, to wit: Dudgeon, Delemater, Corson, Hill, Cogswell, Laughlin, Keaton, Howard, Don-kin and McDonald. Juror Cogswell was challenged “for cause” merely. As to Laughlin the transcript shows, “thereupon the defendant challenged him.” As to Keaton the transcript shows “the defense thereupon challenged him for cause.” As to Howard, “thereupon the defendant challenged him for cause.”
These challenges were manifestly insufficient. A challenge of a juror must specify the particular ground of challenge. (People v. Dick, 37 Cal. 277, 279; People v. Renfrow, 41 Cal. 37, 38, 39; People v. Buckley, 49 Cal. 241, 242; People v. Cotta, 49 Cal. 166, 169; People v. Cochran, 61 Cal. 548, 549.)
The challenge to juror Delemater was, “We challenge the juror under subdivision 2 of that section.” There is nothing in the transcript to show what “that” section was, and the challenge was not specific enough, and was properly disallowed under the authorities already cited.
If it was the intention, however, to challenge the juror for actual bias, as defined in subdivision 2 of section 1073 of the Penal Code, then the challenge is not sufficient, and was properly disallowed.
Juror Cogswell, in addition to the challenge for cause already stated, was challenged “on the ground of being an officer in the county, under section 200 of the Code of Civil Procedure,” it appearing on his voir dire that he was a director of the Turlock irrigation district. The section of the Code of Civil Procedure referred to relates to persons exempt from jury duty, to wit, a person holding a county, city, and county or township office. If a director in an irrigation district were considered as holding an office designated in said section of the code, still “an exemption from service on a jury is not a cause of challenge, but the privilege of the person exempted.” (Pen. Code, sec. 1075.)
Jurors Dudgeon, Corson, Hill, Donkin, and McDonald were challenged for “actual bias.” “This court is only allowed to review an order denying a challenge to a juror upon the ground of actual bias when the evidence upon the examination of the juror is so opposed to the decision of the trial court that the question becomes one of law, for it is only upon questions of law that this court has appellate jurisdiction in criminal cases.” (People v. Fredericks, 106 Cal. 554; and also People v. Wells, 100 Cal. 227.)
The transcript shows that from the examination of the jurors it appears that the bias complained of was opinions founded upon statements in public journals, or upon public rumor, and each juror in effect stated “that he could and would, notwithstanding such opinion, act impartially and fairly upon the matters to he submitted to him—that is, that he would he influenced and guided solely by the law and the evidence.” Hone of them Avere disqualified within the rule.
The court alloAved the challenges of the prosecution to the jurors Bennett, Spencer, Gilbert, Cox, Bailey, Baer, Turpin, and
Juror Spencer was excused for cause after he had been sworn in to try the case, but before the completion of the jury. He voluntarily asked to be excused, giving the following among his reasons: “Well, for one or two reasons, the family, Mr. Ovrens’ family, are members of the congregation where I preach quite often, and I might be somewhat favorable to them; and then, again, this feature of capital punishment. When it was asked me, if it was proved beyond the shadow of a doubt—that doubt business there—I was a little undecided about it yesterday, and still my mind is; yet at one time I said that I wasn’t in favor of hanging a man if there was any possible way of getting around it. Of course, if it is a sure thing and I know a thing, why then I would not be against it, of course”; and upon further examination, conducted by the court and counsel, it was shown that the juror in arriving at his verdict would be influenced by his friendship for the relatives of the defendant. The court may for cause permit a juror to be challenged after such juror is sworn, and before the jury is completed. (Pen. Code, sec. 1068; People v. Durrant, 116 Cal. 179, 197.)
It is also complained on the part of the defendant that the court erred in refusing instructions 7, 8 and 9, requested by the defendant. These offered instructions embody the doctrine of irresistible impulse, which is not recognized in this state. (People v. Pico, 62 Cal. 54; People v. Hoin, 62 Cal. 120; 45 Am. Rep. 651; People v. Ward, 105 Cal. 335, 343; Marceau v. Traveler’s Ins. Co., 101 Cal. 340.) In the latter case it is said: “We cannot recognize the so-called plea of irresistible impulse of itself as a legal defense to any charge of felony.”
Instruction 11, requested by defendant and refused by the court, is as follows: “You are instructed that the fact that the defendant attempted to commit suicide is to be taken as evidence of insanity.” The case of People v. Messersmith, 61 Cal. 246, cited by defendant’s counsel, does not support his contention. There it was said: “But where a court unqualifiedly tells a jury as matter of law that an assumed fact does not prove a fact in dispute, it is error. Such a charge should not be given when it is necessary to draw an inference of fact. An inference of fact, where it does not arise as a presumption of law, must be drawn by the jury whose duty it is to pass upon the insufficiency of the evidence.” The instruction requested and refused was improper, as it made the mere fact of an attempt to commit suicide in itself evidence of insanity, whereas it is only one phase
Counsel for defendant contend that error was committed in the admission of the dying statement of the deceased, because it was not read over to her after it was written, and was only the substance of the questions and answers, and because the witness for the defense called after the admission of this statement gave testimony tending to show that when the statement was made by the deceased she did not have the sense of impending death. The only objection that was urged to the admission in evidence of the dying statement was "on the ground that it is immaterial, irrelevant and incompetent.” This does not cover any of the objections now urged against its admission. It was material, relevant, and, in the absence of any more specific objection, was competent. "We have repeatedly held that counsel must make their objection in such a manner as to leave no doubt as to the precise ground upon which it is placed. We do not think that that was done in the present case, and we do not think that we should be justified in reversing the judgment on this ground.” (People v. Frank, 28 Cal. 519. See, also, People v. Mahoney, 77 Cal. 532; Satterlee v. Bliss, 36 Cal. 507; Mayo v. Mazeaux, 38 Cal. 442; Crocker v. Carpenter, 98 Cal. 421, 422; Colton etc. Co. v. Schwartz, 99 Cal. 278, 284.) In People v. Loui Foo, 112 Cal. 23, this court, after referring to a number of cases on the point in question, say: "The consensus of opinion, as illustrated by these cases and many others, is that where the proffered evidence is imperfect by the lack of preliminary proof which may or may not be supplied by the party offering the evidence, the objector must specifically point out the defect by his objection, and, if he fails to do so, it is waived, and the general objections of 'immaterial, inadmissible, irrelevant, and incompetent/ made when the evidence is offered to the jury, are not sufficient to warrant an investigation on appeal of the insufficiency of such preliminary proof.”
There was no motion to strike out this dying declaration after the defendant’s witness gave testimony tending to show that it was not made under a sense of impending death, which testimony, however, only had the effect to raise a conflict in the evidence as to the state of decedent’s mind at the time referred
From the examination of the whole record we see no error on the part of the trial court, and the judgment and order appealed from are, therefore, affirmed.
Garoutte, J., Harrison, J., and Temple, J., concurred.
Concurrence Opinion
I concur in the judgment of affirmance, and also in the opinion of Mr. Justice Van Dyke, except that part thereof which discusses the subject of the allowance of challenges of the prosecution to certain jurors. I do not object to the correctness of what is said on that subject; hut the allowance of a challenge by the prosecution is not a subject of exception under section 1170 of the Penal Code. That section gives no exception to a decision allowing a challenge; and although it was held in People v. Wells, 100 Cal. 227, following a concurring opinion in People v. Wong Ark, 96 Cal. 135, that a defendant has a constitutional right to except to an order disallowing a challenge for actual bias interposed by him, still that ruling does not give him the right to except to an order of the court allowing a challenge by the prosecution; he is entitled only to a fair jury.
Henshaw, J., concurred.