121 P. 922 | Cal. | 1912
The defendant, an Indian or Mexican, was tried and convicted of the crime of murder, was found guilty of murder in the first degree and sentenced to be hanged. From the judgment and from the order denying his motion for a new trial he appeals.
1. His first contention is that the judgment is not supported by the evidence and is contrary to the evidence. This necessitates a brief statement of the circumstances of the homicide. Defendant was sheep-shearer and a member of Santos Carrissosa's sheep-shearing camp, which contained twenty or thirty Indians and Mexicans. The deceased, Jose Machado, was likewise a member of the camp. The camp was composed of two tents or encampments, one known as Carrissosa's tent, where Machado lived, the other known as Mirando's tent. The sheep-shearing was over. The defendant began to drink, became somewhat intoxicated, and fell into an ugly and quarrelsome mood. With his sheep-shears *244
he went to the entrance of Carrissosa's tent and challenged the occupants generally to come out and fight him. Thereafter he took his Winchester rifle and began shooting at a can upon the ground, firing six or eight shots, and declaring that "this is the way I am going to kill one or two tonight." He then, still carrying his rifle went into the Mirando tent, stumbled over some harness, fell down, got up and asked who had pushed him. Being told that nobody had, he said "I'll go out and kill two or three." He walked outside and began firing his rifle. He discharged three shots, the third striking Machado, who was standing at the entrance of Carrissosa's tent, a short distance away, killing him instantly. Thereupon defendant requested one of the men, Tiburcio Pollorena, to have Santos Carrissosa, the camp foreman or "boss," send him five dollars. He then fled from the camp and was arrested in Mexico several months later. Defendant's defense was that he had been drinking heavily in the afternoon, that he fell into a drunken slumber, did not remember anything that took place, and on awakening from his drunken slumber was told that he had better leave, and did so. He knew that he did not fire pistol cartridges from his rifle. The empty shells found on the ground at the place of the shooting were shells of 44-caliber pistol cartridges. Appellant's contentions against the sufficiency of the evidence resolve themselves into two propositions: 1. That he was drunk at the time of the shooting, that there is no proof of malice on his part toward or against Machado, that no enmity between them is shown to have existed and there was therefore no motive for the crime; 2. That he did not in fact fire the shot which killed Machado. The evidence leaves little doubt but that the defendant's ugly passions were aroused by the liquor which he voluntarily drank, that, as the Indians phrase it, "his heart was bad." There is no evidence of personal enmity or hostility on the part of defendant against the deceased, but there is evidence that his blood lust had been aroused and that he was willing to slay, and did slay, without provocation. This evidence clearly indicates malice. Whether it be called express or implied (Pen. Code, sec. 188) is immaterial. There is enough to justify the jury in finding that he stepped to the door of the tent with the deliberate intention unlawfully to take human life, and, upon the other *245
hand, there is enough to support the finding that there was no provocation at all, and that the circumstances attending the killing showed an abandoned and malignant heart. Of course, his voluntary intoxication was no excuse for his crime (Pen. Code, sec. 22), and the question whether by reason of that intoxication he was incapable of forming a specific criminal intent was one for the jury to pass upon under proper instruction, which the court gave, and they decided the question against him. There was no motive for the crime in the sense that it was shown to have been for revenge or the outgrowth of pre-existing hostility, but while evidence of motive is always permissible and ofttimes valuable, it is never essential to the proof of a crime. (People
v. Durrant,
2. The evidence which appellant contends indisputably shows that he did not fire the fatal shot is the following: The rifle was a 44-caliber Winchester repeating rifle. From it could be discharged 44-caliber Colt pistol cartridges. The bullet which killed Machado was a bullet from such a cartridge. The shells near the door of Mirando's tent where the defendant stood when the shots were fired were shells of exploded pistol cartridges. Experts testified that these pistol cartridges were not fired from the rifle because the indentations made in the caps of the shells by the firing pin were different indentations from those that would have been made by the firing pin of the rifle. It is sufficient, as against this, to state that there was the positive testimony of one eye witness, Tiburcio Pollorena, that he saw the defendant actually fire the shots from his rifle. But, in addition, the jury was not bound to believe the testimony of the experts, and might have concluded, since no evidence was offered to the contrary, that the firing pin of the rifle had been tampered with after the homicide. Indeed, if such were the case, it would not be the first instance in which an attempt has been made to defeat justice in precisely this way. (Taylor v.Commonwealth,
3. The prosecution undertook to show that after his arrest the defendant escaped from jail and fled. The offer of evidence to this effect was excluded. The district attorney, after *246
one objection had been sustained, a second time asked the sheriff, who was on the witness stand, if the defendant continuously remained in his custody, and a second time the question was ruled to be improper. Misconduct is predicated upon this. But there was no such willful persistence in asking improper questions as to merit censure, much less reversal, since the ruling erred in favor of the defendant. (People v. Schaeffer,
4. By questions directed to the defendant it was sought to be shown that he fled because he was told by a man (unknown and unnamed) that two other men with guns were in pursuit of him. The defendant was asked to give the conversation which he had with this unknown man, and an objection to this question was properly sustained. There was not disclosed to the court, as it could and should have been, the nature of the conversation sought to be elicited. On the other hand, under proper interrogatories and proper showing, the defendant would have the clear right to explain his flight. In this connection the court gave the usual instruction upon the subject of flight, such an instruction as has recently been considered by this court in People v. Jones,
5. At the very outset of his instructions, at the request of the district attorney, the court instructed the jury as follows: —
"It is the duty of the jury to decide whether the defendant be guilty or not guilty of the offense charged considering all the evidence submitted to you in the case. It is not for you to consider the penalty prescribed for the punishment of the offense at all. If you are aware of the penalty prescribed by law, it is your duty to disregard that knowledge. In other words, your sole duty is to decide whether the defendant is guilty or not guilty of the offense with which he is charged."
However appropriate such an instruction may be in criminal *247
cases other than murder, the giving of it in the case of murder is grave and manifest error. For in the crime of murder in the first degree, the crime with which this defendant is charged, it is the exclusive province of the jury, and not at all of the court, to fix the punishment. So true is this, that, so far from its being the duty of a jury to disregard its knowledge, if it is aware of the penalty prescribed, it is the duty of the court carefully to instruct the jury as to the solemn responsibility of fixing the punishment which the law has imposed upon it. (People
v. Olsen,
None of the rulings of the court upon the reception or rejection of evidence requires specific comment, but for the reasons given the judgment and order appealed from are reversed and the cause remanded.
Shaw, J., Angellotti, J., Lorigan, J., and Beatty, C.J., concurred.