Opinion
[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] Rehearing Denied 17 Cal. 389 at 400.
Appeal from the Sixteenth District.
Indictment for murder. The killing occurred at a dance house, where an officer had gone to arrest some supposed horse thieves, taking with him Dr. Roberts, the deceased, to identify them. Having arrived at the house, Roberts pointed out defendant and advised the officer to arrest him as a vagrant. After some talk, the defendant having a drawn pistol pointing downwards, began backing out of the house, and when in the street raised it and shot Roberts, who was near the door.
As to the absence of the prisoner during a portion of the trial, the only facts shown by the record are the following extracts from the statement on appeal: 1st, " the indictment was tried on the sixteenth day of August, 1860, at the August term of said Court, by a jury, a portion of which trial was had in defendant's absence; " 2d, " on Monday, the twentieth day of August, the Court in the absence of said defendant made an order fixing Tuesday, the twenty-first day of August, 1860, for sentence to be pronounced upon the defendant."
As to the exclusion of hearsay testimony previously admitted, the facts are, that after the prosecution rested, defendant introduced a witness, Bowman, who testified as follows: " I heard Roberts, the deceased, make a statement as to who shot first. This was in his own house after he had been carried there. He appeared to be in good spirits; was talking, although his lower limbs were paralyzed. He then said, 'I have the satisfaction of having fired the first shot.'" This was all the evidence on the part of defendant.
In the charge of the Court to the jury occurs this passage, to wit: " There is no legal evidence before you that deceased either drew a pistol or fired it. None of the witnesses saw him have a pistol; none were conscious of hearing it go off; but one of them heard deceased say that he had fired. This was only hearsay, but I permitted it to go to the jury because of the manner in which the offer was made. I now charge you distinctly that hearsay is not evidence in law, and I will leave you to determine whether you will believe the mere hearsay of one man, or the testimony of living witnesses." Defendant took a general exception to the whole charge.
Defendant moved for a new trial on the grounds: 1st, that the Court misdirected the jury in matter of law; 2d, of surprise which ordinary prudence could not have guarded against; 3d, that a portion of the trial herein was had in the defendant's absence. The motion was based, so far as the second ground is concerned, upon an affidavit by the counsel of the defendant to the effect, that the ruling out, by the Judge's charge, of the testimony of Bowman that Roberts, the deceased, had said, " Well, I have the satisfaction of having fired the first shot," was a surprise upon defendant and his counsel; and that " defendant had present in the Court room a witness by whom he could have proven that Roberts, the deceased, did fire a pistol, and that he did fire the first shot as Roberts had told Bowman; but that having proven Roberts' declaration of that fact, it was deemed by counsel superfluous to call said witness, as it would have been only cumulative testimony, and that said witness is now within reach of Court." Defendant, being convicted of murder in the first degree, appeals.
COUNSEL:
I. The Court erred in permitting any portion of the trial to be had without the presenceof the accused. (Wood's Dig. 294, sec. 1596.)
II. The Court erred in the charges it gave to the jury.
III. The Court erred in ruling out evidence which had been given without objection, which evidence was material to the defense.
Robinson, Beatty & Heacock, for Appellant.
Thomas H. Williams, Attorney General, for Respondent.
Three assignments of error are made by appellant's counsel.
I. That a part of the trial took place in the absence of the defendant. It does not appear from the record how long, at what time, or under what circumstances the defendant was absent. Error, therefore, is not made manifest. There are some circumstances under which an absence might be error, and some under which it would not. It is unnecessary, however, to discuss this point, as an examination of the whole record developes the fact that the absence spoken of was at the time the order was entered fixing the day for sentence. This is not error. (People v. Galvin , 9 Cal. 115.)
It appears that the Court, in the absence of the defendant, fixed the time of judgment, etc. But the record shows affirmatively that at every other stage of the proceedings the defendant was present in person and by counsel.
II. That the Court erred in admitting certain testimony, and afterwards excluding it from the jury.
This was assigned as a ground for new trial, under the head of " accident or surprise, which ordinary prudence could not have guarded against." And the refusal to grant said new trial upon said ground is claimed as cause for reversal.
The counsel mistook the civil for the criminal practice in the Courts of this State. The District Court had no power to grant a new trial on the ground assigned; on the contrary, it was expressly forbid doing so. (Wood's Dig. 304, art. 1679.)
If the Court below had no power to grant a new trial upon the ground assigned, this Court will not consider the merits of the question upon the facts. But waiving the answer just made, there is another which is conclusive. There could have been no surprise (in law) on account of the exclusion of incompetent testimony. It could only follow the exclusion of evidence upon the ground of the incompetency of the witness. The latter, if excluded in time, might be supplied by the introduction of another witness, whilst the former could not. The fact that the testimony now under consideration was incompetent, is notdenied; and it is also admitted that all other witnesses proposed for the purpose of giving the same evidence might have been excluded. But we are told that the same result could have been attained by the introduction of other witnesses, whose testimony would have been unobjectionable. Admit this, and yet the defendant has no just cause of complaint. Ordinary prudence would have guarded against the surprise by the introduction of the strongest evidence to the point in existence, and would not have relied upon that which was weak and liable to be excluded.
It is not stated who this witness was, or whether he was competent or reliable. No opportunity, therefore, is afforded the prosecution to contradict or disprove the statement. Nor does the affidavit of said witness, setting forth that he would swear as alleged, accompany the statement as it should.
III. The Court did not err in its charge to the jury in defining the acts which amount to murder in the first degree. (Commonwealth v. Green, 1 Ashmead, Penn., 296-300; Commonwealth v. Murray , 2 Id. 43; Commonwealth v. Keeper of the Prison, Id. 231; 1 Leigh, 667-671; 1 Meigs, 276, 277, and authorities; State v. Dunn , 18 Miss. 424; State v. Jennings, Id. 443; People v. Moore , 8 Cal. 90.)
JUDGES: Baldwin, J. delivered the opinion of the Court. Cope, J. concurring.
OPINION
BALDWIN, Judge
On petition for rehearing, Baldwin, J. delivered the opinion of the Court--Cope, J. concurring.
Rehearing denied. The statute (Cr. Pr. Act, sec. 320) does not say that the trial must necessarily be had, during its whole progress, and in every part of it, in the presence of the defendant. The words are: " If the indictment be for a misdemeanor, the trial may be had in the absence of the defendant; but if for a felony, he must be personally present." We must presume in favor of the regularity of the action of the inferior Court. No statement of facts in connection with this subject is made. The bare fact is noted that the defendant was absent during a portion of the trial. This loose statement, which the Judge should not have made except in connection with the real facts illustrating and explaining it, is all that the record gives us upon this subject. This fact does not necessarily show error injurious to the party, or any error at all. We showed in the opinion that various allowable causes might exist for the momentary absence of the prisoner; and we are to presume from the fact that the prisoner has not explained the facts connected with this statement, that his absence, as stated, was one of these. We are not aware that we have ever decided anything which contravenes the rule now held; and if we had, in this class of cases we should not hesitate to overrule the decision, for upon a mere technical question of imputed irregularity in the trial or conduct of a cause, whenever the fact, as stated, may be consistent with the duty of the Court, we think that we should hold that the Court acted properly, when nothing is shown which goes to establish a contrary theory.