111 Cal. 171 | Cal. | 1896
Lead Opinion
The defendant was charged with the murder of one Eugene Mason, and was convicted of murder in the second degree. He appeals from the judgment and from an order denying a motion for a new trial.
It is not seriously urged that the evidence introduced is insufficient to justify the verdict, or that the court committed any material error in the matter of instructing the jury; but it is contended that there should be a reversal on account of certain errors claimed to have been committed by the court during the progress of the
An examination of the points made in the brief of appellant show that one or two of the rulings of the court complained of were clearly erroneous, and that others, whether strictly erroneous or not, are not to be commended; but we think that it sufficiently appears that said rulings did not prejudice the appellant, or injuriously affect his substantial rights. We will notice them in detail.
1. Mrs. Mary Steele was a witness for the prosecution, and testified that an hour or two after the commission of the homicide the appellant came to her house and made some incriminating statements to her about the homicide. On cross-examination she testified that Mr. Wyatt, one of appellant’s attorneys, had called upon her and asked her what she knew about the case; and counsel for appellant asked her if she had “ refused to give him any information?” An objection by the prosecution to this question was sustained. This ruling was clearly erroneous. As tending to prove bias and feeling of the witness against appellant, it was entirely legitimate to show upon her cross-examination that, while she had evidently informed the prosecution of her knowledge, she refused to give any information to the appellant. But, notwithstanding the erroneous ruling
2, The same witness (Mrs. Steele) had testified in chief that the statements made to her by appellant were made while he was eating supper at her house; and she was asked on cross-examination: “Did Shaw ever take a meal at your house before?” Objection was made to the question and it was sustained. It would, no doubt, have been proper and fair to have allowed an answer to this question. It was a small matter, and we can hardly see why the prosecution should have objected to it. But we cannot say that the ruling was absolutely erroneous. Appellant’s counsel here, now, argue correctly that it was admissible for him to show that the witness and the appellant were not intimate acquaintances, because it would be improbable that he made to a comparative stranger the incriminating statements testified to by the witness. But the question ruled out was an isolated question; its purpose was not disclosed; there was no intimation that it was asked to show want of intimacy; and upon its face it was apparently irrelevant and immaterial, and asked without any legitimate aim in view. Therefore we do not think the exclusion of the question was under the circumstances erroneous. And the same may he said of another question asked this witness which was ruled out, namely: “ Did you on that occasion request him [appellant] to perform ‘some service for you’? ” the occasion being the morning after the homicide when the witness had seen the appellant.
4. The refusal of the court to adjourn the trial of the cause from the middle of the afternoon until the next day -was not, under the circumstances, an abuse of discretion.
5. When appellant was testifying on his own behalf he stated that on the evening of the homicide he went to Paso Robles, and his counsel asked him: “ For what purpose did you go to Paso Robles?” The district attorney objected to the question; and appellant’s counsel .stated to the court that he desired to show that appellant, immediately after the shooting, went to Paso Robles for the purpose of surrendering himself to the officers, but that acting on the advice of a Mr. Korn he returned home and waited for the officers to come after him. The court sustained the objection. This question might well have been allowed; and in many cases the refusal to allow such a question would be material error. But in the case at bar there was no evidence, or pretense, that appellant attempted flight, and, therefore, he could not have been prejudiced by the rejection of the testimony. The same may be said of the rejection by the court of the offered testimony of said Korn to the effect that he advised appellant not to surrender himself at Paso Robles.
6. We do not think that the alleged misconduct of the district attorney, in saying what he did about appellant’s drinking beer, was of importance enough to be seriously considered as a ground of reversal. Neither
7. The most serious question in the case arises out of the refusal of the court to allow appellant to recall the people’s witness, Christopher, for the purpose of laying a foundation for showing that he had made a certain statement contradictory of a part of his testimony. The shooting which resulted in the death of the deceased took place about eighty or one hundred yards from the house of said Christopher, who testified to the circumstances of the shooting and said that he stood in his yard and had an unobstructed view of both of the men. Appellant called a witness named Eubanks, who testified that he knew Christopher, and had a conversation with him regarding the shooting; and he was then asked: “ Did he [Christopher] inform you where he stood when the shooting took place?” To this the district attorney objected on the ground that “ no predicate had been laid for the impeachment of Mr. Christopher,” and the objection was sustained. Counsel for appellant then said: If the court so rules I desire to have the privilege of recalling Mr. Christopher to lay the foundation. Our attention was just called to this information. We intend to show by this witness that Mr. Millard Christopher told him that he stood right in the barn at the time the shooting took place. It has taken us by surprise; we have just ascertained this information, and we ask the court to be allowed to recall Mr. Christopher for the purpose of laying the predicate.” The court denied this request and appellant excepted. The request was certainly not an unreasonable one; and we apprehend that most courts would have allowed it. But it was a matter of discretion of the trial court, and the question here is whether there was such a gross abuse of discretion as to warrant a reversal; and that depends, in great measure, upon the character and importance of the testimony of Christopher. If the fact that appellant shot the deceased and thereby caused his death had been
The judgment and order appealed from are affirmed.
HARRISON, J., Garoutte, J., and Van Fleet, J., concurred.
Temple, J., dissented.
Dissenting Opinion
I dissent, being unable to agree with the conclusion reached in the matter discussed under paragraph 7.
I think the refusal of the court to allow defendant to
Beatty, 0. J., concurred.