116 Cal. 249 | Cal. | 1897
The defendant was convicted of murder in the second degree, and appeals from the judgment and from an order denying his motion for a new trial.
1. As to the first point made for a reversal, it is sufficient to say that the evidence fully enough shows that Manuel Moreno, the person killed, made his dying declaration under a sense of impending death, and that,
2. The contention based on the cases of People v. Lee Fat, 54 Cal. 527, and People v. Ah Yute, 56 Cal. 119, that the testimony of Secundino Varela, given at the preliminary examination, was improperly admitted because it was conducted through an interpreter, cannot be maintained. The entire examination was in the English language except that, as to a single question, the court requested an interpreter to ask the witness if he understood the question, and the interpreter, having asked him, replied: “He says he does understand.” Moreover, the interpreter was present at the trial in the superior court and testified. The case at bar is, therefore, not at all within the rulings in the Lee Fat and Ah Yute cases; and the court did not, for the reason urged under this contention, err in admitting said testimony.
3. The third and only other point made by appellant is that the admission in evidence of the testimony given by said Varela at the preliminary examination was erroneous because prohibited by section 13 of article I of the state constitution, and because any statute providing for the admission of such testimony in a case of homicide is violative of said section of the constitution, and void. This point was decided against the contention of appellant in People v. Chin Hane, 108 Cal. 597, and People v. Oiler, 66 Cal. 101; but as the point has been strenuously urged in another case recently submitted, and we are asked to overrule the cases above cited, it is proper, perhaps, to give it a little further notice.
It is- said that in People v. Chin Hane, supra, the point was not much discussed, and the decision was based on People v. Oiler, supra; that the opinion in People v. Oiler, supra, contains statements which are not sound law; and that, moreover, the latter case did not involve a crime arising out of a homicide. But in People v. Chin Hane, supra, which was decided in Bank and was a case of murder, a petition for rehearing was filed in which this point was strongly pressed and most elaborately
It is to be observed that our constitution does not provide—as many other state constitutions do—that a defendant in a criminal case is entitled to be “ confronted with the witnesses against him,” or, as the Massachusetts constitution has it, “ to meet the witnesses against him face to face.” The only provision of a like character here is found in subdivision 3 of section 686 of the Penal Code; but it is immediately followed by the exception and provision that the testimony of a witness taken at a preliminary examination before a committing magistrate by question and answer “in the presence of the defendant who has, either in person or by counsel, cross-examined, or had an opportunity to cross-examine, the witness,” may be used on the trial in the event of the subsequent death, etc., of such witness. This provision embraces all kinds of criminal cases, and, under its express terms, the testimony objected to in the case at bar was clearly admissible. The contention, however, is that to apply this provision to an alleged crime arising out of a homicide is to violate that part of said section 13 of article I of the constitution,which reads as follows: “The legislature shall have power to provide for the taking, in the presence of the party accused and his counsel, of depositions of witnesses in criminal cases, other than cases of homicide, when there is reason to believe that the witness, from inability or other cause, will not attend at the trial.” The language which we have italicized shows that the clause was not intended to relate to, and does not embrace, testimony given at the judicial proceeding known as a preliminary examination, where the purpose of the testimony is to enable the judicial officer to determine whether or not the party charged should be committed. The clause in question clearly refers to an ordinary extrajudicial deposition taken, as it is called, de bene esse —that is, conditionally before a commissioner, or some officer authorized to administer oaths, and based upon
The judgment and order appealed from are - affirmed.
Van Fleet, J., Garoutte, J., Harrison, J., Temple, J., and Beatty, C. J., concurred.