93 Cal. 445 | Cal. | 1892
Lead Opinion
The defendant was charged with the crime of murder, and was convicted of manslaughter. The defendant was himself shot by the deceased during the difficulty which resulted in the homicide, and it was a contested question upon the trial as to whether the defendant or the deceased fired first, the contention of the defendant being, that he acted in self-defense, and did not shoot until after he himself was wounded; and in the determination of this question it became material to ascertain the position in which the defendant was at the time when he was shot.
Upon the trial, Dr. Hayden, a physician and surgeon, was called as a witness on behalf of the people, and was asked: “ Will you state, if you can, from your examina
Nor can we agree with the attorney-general and associate counsel for the people, that the admission of this incompetent evidence was a harmless error, and therefore without prejudice to the appellant. It went to sustain the theory of the people in relation to the pivotal point in the case, and at the same time to discredit the testimony of the defendant. The defendant testified, in effect, that he did not draw his weapon or fire until after he had been shot by the deceased; that after firing the first time he continued to face the deceased, at the same time backing to and against the door, and while thus backing he shot at the deceased again. On the other
Judgment and order are reversed.
Beatty, C. J., Harrison, J., and Sharpstein, J., concurred.
Dissenting Opinion
I dissent. Dr. Hayden was examined as a witness in chief for the prosecution, — not in rebuttal; so that whether or not that part of his testimony objected to was of any importance could not be determined before the evidence of the defendant was introduced. At the time of the homicide, defendant received a pistol-wound inflicted by the deceased, and Dr. Hayden was first properly asked about that wound,— what part of the body it was in, its size, the points of
“ Q. Will you state, if you can, from your examination of this man’s arm and your familiarity with gunshot-wounds, if you are familiar with them, in what position, in your judgment, this man’s arm was at the time that wound was received?
“ Mr.. Hinds. — We object to that, on the ground that it is incompetent.
“ The Court. — Let him answer the question.
“ Mr. Hinds. — We except.
“A. It would be one of two positions, provided he was on his feet. If he was on his back or on the ground, it might be another position. If he was on his feet, I should say some such position as that or this way, either one. It could not be this way, because the ball would have entered his body some place, and it would have to be well over this way, in order to miss the shoulder.
“ Q. It was either the way you describe or turning around with the arm down? A. With the arm down this way. I rather think this way, because the ball seemed to pass from rather that side toward the center.
“ Q. Well, now, suppose that you are there, and I am here, and I am going away, either running or walking fast, would you say that the ball could have entered?
“Mr. Hinds. — The same objection goes to all these questions.
“Mr. Foote. —Would it enter there and come out that way, entering the same position relatively?
“Mr. Hinds. — Same objection, ruling, and exception.
“Mr. Foote. — Is that the fact? A. Yes, sir; very similar; very much that position.
“Q,. What arm was it? A. The left arm.”
At the end of this testimony is appended a note as follows: —
*450 “Note. — The above witness, Dr. Hayden, in giving his testimony, illustrated the two positions testified to by him, viz.: 1/ With the forearm flexed almost to a right angle to the upper arm, and the elbow carried in front of and well toward the right side of the trunk, the trunk being inclined on its perpendicular axis to the right also; so the ball on its exit would not enter the trunk or the right upper extremity,—that is, the wounded man should stand with his side toward the discharged weapon. 2. Or the arm may have been only partially flexed in upper arm, and hanging at the side, the wounded party having his back toward the party firing the shot.”
I do not deem it necessary to determine definitely whether or not this ruling of the court was, in the abstract, erroneous, because it is apparent that the appellant was not injured or prejudiced by it. As before stated, the defendant was himself wounded at the time of the homicide. The deceased fired at defendant either before or after the shot by which defendant killed the deceased. The theory of defendant, and his subsequent testimony when on the witness-s'tand, was, that the deceased fired first, and that defendant then killed him in self-defense. Now, if when defendant testified it had appeared that his testimony was in conflict with the former testimony of Dr. Hayden,—that is, if the deceased could not have fired first and hit defendant in a position in which Dr. Hayden thought he must have been,—then appellant might have been prejudiced by the testimony of Dr. Hayden, which is claimed to have been erroneously admitted. But there was no such conflict. Appellant’s theory and testimony were entirely consistent with the said testimony of Dr. Hayden. If appellant had contended or testified that he was facing deceased when the latter fired, some importance might have attached to Hayden’s testimony. But there was no such testimony. The appellant, when on the witness-stand, first described the difficulty between the deceased and himself over a game of cards, and some blows between
Dissenting Opinion
I dissent.
While the authorities cited by Mr. Justice De Haven beyond question determine that the testimony of Dr. Hayden was incompetent, still I am unable to see how the defendant was prejudiced thereby. The theory of the prosecution at the trial was, that the defendant had his back turned toward the deceased at the time he received the wound in the arm. The theory of the defense was, that the defendant was standing with his side to the deceased, and his left arm raised to a certain angle, at the time he received the wound. The doctor, as an expert, testified that the defendant could have been in either one of those two positions at the time he received the wound; consequently, I do not perceive how the defendant was prejudiced by the admission of the testimony.