36 Cal. 255 | Cal. | 1868
Lead Opinion
The defendant was tried for murder, and convicted of manslaughter. He moved for a new trial, which was denied, and then appealed. The grounds of the motion are: First—Insufficiency of the evidence; Second—Error in admitting and excluding evidence; Third—Error in charging the jury.
The case shows that Lewis, the deceased, was the keeper of a drinking saloon, which was a part of the same building in which his family resided. That early in the evening, and some three or four hours before the homicide was committed, the defendant was sufficiently intoxicated to be noisy and quarrelsome, and in all probability broke a window of the building occupied by the deceased and his family, for which the wife of the deceased caused his arrest. That he appeared very much enraged at the arrest, and, when taken before the magistrate, indulged in gross abuse of the deceased and his family—to the effect that he kept a whorehouse, and that his wife was a whore; that it was an outrage for a gentleman to be arrested because some boy had thrown a stone at the window of a whorehouse, and other like expressions. That his examination was postponed by the magistrate until the next day, and the defendant was discharged from arrest upon his promise to go home and report to the magistrate the next morning. That after his discharge he went about town, visiting the drinking saloons, complaining of his arrest, and repeating his abuse of the wife of the deceased whenever and wherever he could find a listener, and remarked to one of the witnesses that he would make the house of the deceased a lonely or desolate house. That about eleven o’clock he was at the store of the witness Young, with whom he had a quarrel of words, in the course of which he repeated
To the testimony in relation to the breaking of the window and the language used by defendant in respect to the character of the wife and house of the deceased, the defendant objected as irrelevant. The Court sustained the objection as
Upon the question whether the testimony in relation to the defendant’s breaking the window and his abusive language was relevant, we cannot help thinking that counsel ought to occupy inverted positions, if, as claimed by counsel for the appellant, the fatal contest was sought and commenced by the deceased, armed with means by which great bodily harm, if not death, could be readily inflicted. The plea of the defendant being self defense, his plea would have been sustained, rather than prejudiced, in the eye of the law at least, by testimony of that character, for its tendency was to show a reasonable and probable motive for the attack of the deceased, without at the same time affording any legal justification therefor. The breaking of the window, the vile abuse of himself and wife, were calculated to inspire him with a desire to chastise the defendant and avenge his insulting acts and language, without, at the same time, affording him any legal justification, however much he might be justified by a vitiated popular sentiment. It fully illustrated and explained his motive, and would, therefore, have been relevant testimony on behalf of the defendant, and, in our judgment, most material testimony; for, taken in connection with the fact that just before the contest he left the place where he was standing in conversation with Green, and where, as we have already seen, he must have heard the conversation between the defendant and Young, and walked in a direction opposite to that in which the defendant was standing, to his own saloon, and there filled his pockets with tumblers, and then went directly to the defendant, it tended
In our judgment, the weight of the testimony shows that the contest was commenced by the deceased.. Young makes it a case of mutual combat; but admits that at the time and just before the commencement of the contest he was himself engaged in a controversy of words with the defendant, which he feared might at any moment culminate in personal violence, and was, therefore, as might be reasonably expected, in a state of excitement altogether inconsistent with a cool and accurate observation of events. On the contrary, the witness Trelore was in no way concerned in the transaction, and was, therefore, perfectly cool and self possessed; and there is no reason to suppose that he was at all prejudiced in favor of the defendant, for he stated upon the stand that he thought the defendant deserved a whipping, and he was anxious to see him get it. His testimony places the whole legal responsibility of the contest upon the shoulders of the deceased, and his testimony, moreover, is consistent with all the intrinsic probabilities arising from the conduct of the deceased in first going to his saloon for tumblers, which are dangerous if not deadly weapons, and then seeking the defendant, not in a hasty and excited manner, as if wrought upon by a sudden and perhaps transient impulse, but with that calm and deliberate movement which indicates a fixed and settled purpose. In view of those facts, by themselves considered, there can be little doubt but that had the defendant been slain the homicide would have been declared murder by all the cases. Thus, as it appears to us, the more obvious and primary effect of the testimony was in favor of the very party who complains of its admission. It is true that its less obvious and secondary effect might have been to show that the conduct of the defendant was adopted for the purpose of provoking the attack which followed it, and so convert the attack into a shield for murder. Ho jury would
While, as already indicated, our conclusion is that the testimony in question was relevant, a careful perusal of the record satisfies us that its logical and legal effect was misdirected, to the prejudice of the defendant, which is mainly due to the course adopted by the prosecution in proving both sides of the case, and then undertaking to rehut so much of the evidence as tended to justify the homicide, instead of merely proving the homicide and resting. Had the prosecution pursued the latter course, the defendant would have naturally introduced the evidence in question for the purpose, as we have seen, of showing a state of facts which
While ordinarily the defendant will have no legal cause to complain of the prosecution for proving his case also, yet if such a course leads to a confusion of' ideas, and, under their influence, to a wrong appreciation of material testimony, it cannot be said that the defendant has not been prejudiced, or that he has had a fair trial. ¡Naturally, juries do not look to the prosecution for the facts upon which the defendant relies, and they, therefore, are liable to be misled, if the facts come from that side, and to be put upon a false scent from which they cannot be readily retrieved. We think such was the result in this case. There seems to have been an impression maintained throughout the trial that the legal effect of the testimony in question was against the defendant, which, as we have seen, was, in part at least, an erroneous impression, and, therefore, prejudicial to the defendant, for, as already suggested, the fact that the deceased went to his saloon to provide himself with tumblers, in connection with his subsequent conduct, tended to show an intent on his part to inflict upon the person of the defendant great bodily harm at least, and the testimony in question supplied a motive which served to explain and illustrate the attack of the deceased upon the defendant, and the intent with which it was made.
The Court did not err in excluding the testimony offered by the defendant for the purpose of proving the truth of his statements as to the character of the house and wife of the deceased. That was a side issue which the prosecution was
To the instructions of the Court, it is first objected generally that they contain matters of law not applicable to the facts of the case, and, therefore, calculated to confuse and mislead the jury. They contain, among other matters, the several sections of the statute in relation to murder in both degrees, manslaughter—both voluntary and involuntary—and justifiable and excusable homicide; also the sections of the statute which define legal malice; also an extract from the opinion of this Court in the case of the People v. Sanchez, 24 Cal. 17, in relation to the distinction between the two degrees of murder. It is argued on the part of the defendant that the case made by the prosecution was, at most, but a homicide, committed in a sudden and mutual combat, and that the Court should, therefore, have confined its charge to the law of manslaughter and the law of self defense. This would be so, doubtless, if the theory of the appellant was the only plausible theory, or if the prosecution accepted it as the true theory, (People v. Byrnes, 30 Cal. 206;) but the prosecution claimed that it was a case of murder; and it cannot be denied that there was some testimony to support the claim. It may have been very slight, but if there was any testimony tending that way it would have been error to refuse to charge upon the question of murder. The prosecution had proved an old quarrel against the defendant; that he had but a short time before the homicide, threatened to make the house of the deceased “ a lonely or desolate house;” and that he had broken a window, and vilely abused the deceased and his wife, for the purpose, as the prosecution contended, of provoking a contest and converting it into an opportunity to kill the deceased under the pretense of self defense. Prom these facts the prosecution might, with some show of reason, argue that the homicide was murder, and, if so, the Court, whatever might be its own opinion, could not, under the Constitution of this State, which prohibits Judges from charging
The objection to the eighth, ninth and twelfth instructions, upon the ground that the word “ malice ” is used in its popular sense, as denoting mere hatred and ill will, and not in its legal sense, as denoting an intent to do an unlawful act. without legal justification or excuse, becomes immaterial in view of the fact that the defendant was found guilty of manslaughter only.
This record fails to disclose upon what grounds the first and second instructions, asked on behalf of the defendant, were refused, and the Attorney General has failed to suggest any ground upon which the ruling of the Court can be sus
We are unable to detect any substantial reason why the instructions in question should not have been given. Every instruction which correctly declares the law applicable to the case which it supposes, if the case can be rationally inferred from the testimony, should he given.
Judgment reversed, and a new trial granted. It is further ordered that the remittitur be issued forthwith.
Concurrence Opinion
I concur in the judgment, but dissent from the observations of the Court upon the propriety of the rule of law which prohibits a Judge from charging the jury in respect to matters of fact, or indicating an opinion as to the result of the evidence.
Concurrence Opinion
I think the Court erred in refusing the first and second instructions asked on behalf of the' defendant, and that the judgment should be reversed, and a new trial had on these grounds. I therefore concur in the judgment.