Opinion
Appeal from superior court, county of Amador.
SYLLABUS
1. CRIMINAL LAW AND PROCEDURE -- MURDER -- VERDICT -- DEATH PENALTY.
If on a trial for murder in the first degree the jury, in rendering their verdict, fail to attach any penalty, the duty of the court is to impose the death penalty. Instructions in this regard reviewed, and held sufficient.
2. SAME -- EVIDENCE -- CREDIBILITY OF WITNESS.
Certain evidence reviewed, and held admissible to affect credibility of witness.
3. SAME -- TESTIMONY AS TO UNDERSTANDING OF WORDS USED BY ANOTHER.
A witness cannot testify to his understanding of the meaning of words used by another, or to inferences drawn by him from a "combination of circumstances tending to throw light" on the question of feeling between two persons. That is a matter for the jury, upon proof of the words or circumstances themselves, and a question for the purpose of drawing out such matter is objectionable.
4. SAME -- OBJECTIONABLE QUESTIONS -- EFFECT OF STRIKING OUT.
Where an objectionable question is asked, and the answer thereto stricken out by consent of the parties, the question is considered not answered; and if the court also instruct the jury to disregard the matter because it is stricken out, defendant is not prejudiced by such answer.
Eagon & Armstrong, for appellant.
The Attorney General, for respondent.
In bank.
OPINION
McKEE, J.
Appeal from a judgment of conviction of murder in the first degree, and an order denying a motion for a new trial.
1. The material point upon which the defendant relies for a reversal of the judgment is that the jury were misled, by the instructions of the court upon the question of punishment, to return a verdict of murder in the first degree, without a declaration of what the punishment should be. The charge of the court as to the power and duty of the jurors upon that question was quite elaborate. Altogether six or seven instructions upon the subject were given, which might have been more forcibly expressed by reading to the jury section 190 of the Penal Code. But the thought expressed by the several instructions was this: If the jury should agree to find the defendant guilty of murder in the first degree, then they had the right, under the law, in the exercise of their duties, to go further and determine the punishment of the defendant; i. e., whether he should suffer the highest penalty of the law -- death -- or the milder punishment of imprisonment for life. If they determined upon the former, it would not be necessary for them to declare it in their verdict; but if upon the latter, it would be. It is true that in the elaboration of the instructions upon that question the court did not directly tell the jury that if they did not, by their verdict, declare the punishment, the court, on a verdict returned by them of murder in the first degree, would have to pronounce judgment of death; but later on in the proceedings it did give them to understand that if they did not declare in their verdict that the punishment shall be imprisonment for life, the court would have to perform its duty by imposing the punishment of the law. Upon receiving the original charge the jury retired for deliberation, and afterwards, being brought into court, announced they were agreed upon the question of guilt, but not upon the question of punishment. Upon that announcement the following took place between the court and jurors:
"Court. Do I understand the jury to disagree simply upon the matter of punishment? Juror. Yes, sir. I am not willing to pass sentence * * * by which the man should be killed, because I think there were some mitigating circumstances. * * * Court. The jury have the right to fix the penalty at death or imprisonment for life. * * * If the jury bring in a verdict of guilty of murder in the first degree, without specifying the penalty, they may do so. Juror. Then we are not compelled to do it? Court. You are not compelled to do it; you simply have the discretion."
The jurors again retired, and again returned into court for information upon the same subject. The same juror, addressing the court, said:
"I got the impression that if the verdict was returned of guilty of murder in the first degree, without anything further, it inflicted the death penalty. Some of my fellow-jurors thought it did not. I want to be certain of that." The court again read to the jury section 190 of the Penal Code, and in connection therewith said to the jurors:
"* * * If there is nothing specified [in your verdict] as to the penalty, the court will have its duty to perform, but what the duty will be the court will not say."
Of the duty of the court upon receiving a verdict of guilty of murder of the first degree there could have been no doubt in the mind of the judge. The law, as construed by this court, is clear.
"If a jury shall agree that a defendant is guilty of murder in the first degree, but cannot agree that the punishment shall be imprisonment for life, or shall not declare that the punishment shall be such imprisonment, it will be the duty of the court to pronounce judgment of death. The jury need not declare that death shall be inflicted, in cases where they cannot agree on imprisonment, since, if the verdict is silent in respect to the penalty, the court must sentence the defendant to death." People v. Welch, 49 Cal. 185.
We do not, therefore, understand why the court should have hesitated to directly say to the jurors what his duty would be in case they returned a verdict of guilty of murder in the first degree. But the question is, did that hesitancy in any way mislead the jurors as to their powers or duties? The jury did agree upon their verdict, and, in the performance of that duty, it is not claimed that they were misled by any of the instructions of the court. They did not agree on imprisonment of the defendant for life, but they returned a verdict of murder in the first degree, which was silent in respect to the penalty. Were they prevented from agreeing on the penalty by any of the instructions of the court upon that subject? We think not. The only juror who doubted in the matter seems to have been at last satisfied with the information which he obtained from the court; for, upon receiving that information, he agreed to a verdict without a declaration as to the punishment, and returned the same to the court as his verdict. There is nothing in the record tending to show that he had any doubt as to the grade of the crime of which the defendant was guilty. This result was reached after receiving the elaborate and reiterated instructions of the court as to their power and duty upon the question of punishment; and we cannot see how any of the jurors could have been misled into disagreement upon the question by anything contained in the instructions. Besides, we think it evident that the jury were not misled; for there was no dissent to the verdict as rendered. At the request of counsel for defendant the jury were polled, and each one answered that it was his verdict, -- the doubtful juror saying, when his name was called, "Yes, that is my verdict, and I will leave the responsibility to the court." After which the polling of the jurors proceeded further, and all the jurors answered, "Yes, that is my verdict."
2. The homicide of which the defendant was convicted was of a man named Peter Wells. It was committed in the town of Oleta, Amador county, on the fourteenth of March, 1884. On the trial of the case, Lee Marcellus -- a man who had been in the employ of Wells -- was examined as a witness for the defendant, and gave testimony tending to show that on the morning of the day of the homicide, Wells, being armed, started to go to the town of Oleta, where he expected to meet with French, with whom he had had previous differences, and wanted the witness to arm himself and go with him; but the witness refused, and tried to dissuade Wells from going, saying to him that "he would meet French there, and there would be shooting." To which Wells replied, "If there was to be trouble, there was no use in trying to stave it off."
In cross-examination the district attorney asked the witness questions to draw out a conversation between him and the wife of Wells, after the homicide, in which he told her that he had said to Wells, a few days before the homicide, "If he would let him [the witness] have a rifle he would put French in a prospect hole," and that Wells said to him "he didn't want anything of that kind." Objections to the questions upon the grounds of irrelevancy, immateriality, and want of preliminary proof were overruled by the court, against defendant's exceptions. In answering the questions the witness testified, in substance, that a day or two before the homicide the witness had said to Wells: "If I thought that man [French] was hunting us in the chaparal I would go down and get him;" to which Wells said, "No;" and that he (the witness) did not remember whether he had told it to Mrs. Wells, but if he had, he told it to her as it was. Manifestly, the court admitted the evidence to affect the credibility of the witness. We cannot see any other ground upon which it was entitled to admission. If counsel for the defendant understood that it had been admitted on any other ground, or was apprehensive that it might have been used for any other purpose in the case, he could have asked the court by a proper instruction to have limited it to the question of the credibility of the witness; but, having failed to do that, we cannot see that there was any prejudicial error in the ruling or action of the court in the matter.
3. After the defendant had rested his case, the district attorney called a witness, of whom he asked the following question:
"During your association with the deceased, Wells, and the actions on his part, from words of his and combination of all the circumstances that would tend at all to throw light on the subject, what was the feeling, and the expressed feeling, between Wells and French?"
The court should have sustained the objections made to the question. A witness cannot testify to his understanding of the meaning of words used by another, or to his inferences drawn by him from a "combination of circumstances tending to throw light" on the question of feeling between two persons. That is a matter for the jury upon proof of the words or circumstances themselves. The question was therefore objectionable. But the question itself was not answered, for the record shows that the answer of the witness to the question was by consent of the district attorney stricken out; and the court also instructed the jury to disregard it because it was stricken out.
There being no prejudicial errors in the record, the judgment and order must be affirmed.
We concur: MYRICK, J.; MORRISON, C. J.; THORNTON, J.