Opinion
Appeal from the District Court, Fifteenth Judicial District, City and County of San Francisco.
The murder was alleged to have been committed in the City and County of San Francisco, on the 28th day of May, 1873. The deceased was killed on Clay street, near the corner of Pike. No witness testified in words that the place of killing was in the City and County of San Francisco. Several witnesses were sworn for the prosecution. It appeared from the testimony of the witnesses that the killing was on the north side of Clay street, and between Dupont and Stockton streets, and that Dupont and Stockton streets were in the City and County of San Francisco. It was also proved that Washington and Sacramento streets were in the City and County of San Francisco, and that Clay street lay between them, so that the four streets bounding the place of killing, were in said City and County.
COUNSEL
McElrath & Osment, for the Appellant, argued: The Court erred in allowing the witness Harris to answer, on cross-examination, whether he had been arrested for vagrancy; that it was an attempt to impeachthe witness, and that a witness could only be impeached by contradictory evidence, or by evidence that his general reputation for truth and veracity was bad, and cited section two thousand and fifty-one of the Code of Civil Procedure. They also argued that the evidence was immaterial, and cited People v. McDonald, 39 Cal. 697. They also argued that the venue was not proved, and that the only proof on the point was that the deceased was killed on Clay street.
John L. Love, Attorney-General, and Thos. P. Ryan, for the People, argued that there was a dinstinction between being arrested for an offense and being convicted of an offense, because in case of conviction there must be a record, while in case of an arrest there might not be a record. They also argued that the objection that the evidence was immaterial was not a good one, as the only question was whether the evidence was competent. That evidence which went to the credibility of a witness need not be material to the issue; but the issue for the time being was dropped, and the question being tried was, whether the witness was to be believed; and that the only question arising here was, whether it was competent toimpeach a witness by asking him if he had been arrested for vagrancy; and that therefore the objection that the evidence was immaterial was not good, and that, as no valid objection had been made to the testimony, no error was committed; and cited 18 Cal. 83; 23 Cal. 259, and 24 Id. 402. They also argued that explict proof of the venue was not required, and cited 1 Wharton's Crim. Law, 601; State v. Jones, 1 McMullan, 246; and People v. Williams, 18 Cal. 187.
JUDGES: Crockett, J. Neither Mr. Chief Justice Wallace nor Mr. Justice McKinstry expressed an opinion.
OPINION
CROCKETT, Judge
The defendant was convicted of murder in the second degree, for the homicide of a Chinaman; and appeals from the judgment and from an order denying his motion for a new trial. We are asked to reverse the case on the ground that the evidence was insufficient to justify the verdict. But it is the peculiar province of the jury to weigh the evidence and decide upon the credibility of witnesses; and it is not our practice to disturb verdicts on this ground, unless there is either a total deficiency in the evidence, or it preponderates so greatly against the verdict as to render it clear that the jury must have been under the influence of passion or prejudice. In this case the evidence tending to fix the homicide upon the defendant was not very satisfactory; consisting first of the fact that he was present at the killing; second, that certain spots of blood were found upon his clothing; third, that a knife resembling one known to have been in his possession was discovered several days after the homicide in an alley-way, where he had the opportunity to have thrown it; fourth, that he made certain contradictory statements to the policeman as to his movements on the evening of the homicide. It cannot be said that this evidence did not tend strongly, if unexplained, to inculpate the defendant. It is also perfectly clear that the homicide was committed either by the defendant or one Brennan, both of whom were present at the time. But counsel insists that it clearly appears the killing was done by Brennan, and that the defendant, though present, took no part in it. It is true, the only eye-witnesses of the transaction, who professed to have seen the whole of it, are two women, whose testimony tends strongly to exonerate the defendant, and to fix the guilt upon Brennan. But it was for the jury to decide upon their credibility; and the result shows that their testimony was not credited. The jury appears to have placed more reliance on the testimony of the witness Cope, who saw a part of the transaction, and whose version of it tends to prove that the defendant struck the mortal blow. It will suffice to say on this point that we cannot disturb the verdict on the ground that it was not justified by the evidence.
Another point made by the appellant is that the venue was not proved. No witness testified in so many words that the killing occurred in the City and County of San Francisco. But the whole testimony, taken together, left no room for a reasonable doubt on this point. We think the venue was sufficiently proved.
On the cross-examination of a witness for the defense, the District Attorney, for the purpose of discrediting him, asked him this question: " Were you ever arrested on February 1, 1871? Were you not arrested February 1, 1871, for vagrancy?" which was objected to on the ground that it was immaterial, and that the record was the best evidence. The Court overruled the objection, and permitted the question to be put and answered; and the witness admitted that he had been so arrested for vagrancy. This ruling is relied upon as error.
The objection that the record is the best evidence is not tenable. An arrest for vagrancy does not necessarily imply that there was any record evidence of the arrest. In People v. Snellie (No. 2,959), decided at the April term, 1872, but not reported, a witness was asked if he had been arrested for larceny. It was objected that the record was the best evidence. But we held that the question " was not open to the objection that the evidence thereby sought to be elicited was not the best evidence in degree." The objection that the evidence was " immaterial" does not raise the point whether it was competent and admissible under section two thousand and fifty-one of the Code of Civil Procedure. There is a wide distinction between immaterial and incompetent evidence. It may be material and tend to prove the issue, but incompetent for that purpose under the rules of law. On the other hand, it may be competent evidence in a proper case, but immaterial to any issue before the Court. A party objecting to the admission of evidence, must specify the ground of his objection when the evidence is offered, and will be considered as having waived all objections not so specified. To have entitled the appellant to raise the point in this Court as to the competency of the evidence under the Code, he should have made the objection on that ground in the Court below. Judgment and order affirmed. Remittitur forthwith.