People v. Turner, 118 Cal. 324

People v. Turner

118 Cal. 324 | Cal. | 1897

HENSHAW, J.

Defendant appeals from a judgment of conviction for assault with intent to commit murder.

*325Tbe prosecuting witness, Dyer, testified that be was assaulted in bis room about midnight by a man who knocked him senseless with a slung-shot, and who, upon his recovering consciousness, presented a pistol and threatened to kill him. He grappled with his assailant, who broke away and fled. He had never seen him before, but two weeks afterward, at the Oakland city jail, recognized the defendant as the man. He further testified upon direct examination that the man’s hat was upon the back of his head, the light shone upon his face, he saw his features distinctly, and so identified him.

Upon cross-examination he was asked as to -the clothing worn by his assailant, and answered that he wore an overcoat like that which was in court and was exhibited to him. He was then asked if, upon the preliminary examination and upon the former trial, he had not positively identified the coat as being the one worn by the man who entered his room. Objection to this line of examination was sustained.

The identification of the defendant by the prosecuting witness was a vital point in the case, and it was clearly permissible and important for the defendant to impair, so far as he could by legal evidence, the force of this testimony. It was legitimate cross-examination upon the question of identity to ask the witness concerning the apparel of his assailant. He having answered that the coat exhibited was like the coat worn, it was perfectly proper to show a variance between this statement and that made by the same witness upon a former trial when he identified with positiveness the particular garment. For it is apparent that a failure by a witness upon a second trial to speak with certainty upon a matter madq the subject of absolute identification upon a former trial would, unless the discrepancy were satisfactorily explained, tend to weaken and impair the effect of his evidence. Particularly is this true under the circumstances here presented, where it is made to appear that upon the former trial the defendant, after the positive identification of the overcoat, produced strong evidence to show that he had purchased it subsequent to the date of the alleged offense.

The prosecuting witness gave a general description of the size and appearance of the pistol with which he had been threatened. *326Over objection of defendant, it was permitted to be shown that when arrested two weeks after lie bad in bis possession two loaded pistols, and one of them was admitted in evidence. There was not the slightest attempt at identification of this pistol by the complaining witness. The defendant then proved that the two pistols had been purchased after the date of the assault. At this point the court reconsidered its ruling and struck out all of the evidence on either side relative to the pistols saving the statement of the prosecuting witness, and the jury was instructed to disregard it. Defendant complains that the injury done him by the admission of improper evidence was not cured by the subsequent order striking it out. It would be a wiser procedure, certainly in criminal trials, for the court not to receive evidence until satisfied of its admissibility. For there can be no doubt that the effect of injurious evidence improperly admitted can never be wholly removed by an instruction to disregard it. Yet we are not prepared to say that in this case the injury amounted to reversible error.

No other points presented by appellant seem to call for consideration.

The judgment and order are reversed, and the cause remanded for a new trial.

Temple, J., and McFarland, J., concurred.