APPEAL from a judgment of the Superior Court of Sonoma County and from an order denying a new trial. Albert G. Burnett, Judge.
John T. Campbell, and R. M. Swain, for Appellant.
Tirey L. Ford, Attorney General, and A. A. Moore, Jr., Deputy Attorney General, for Respondent.
JUDGES: In Bank. Garoutte, J. Temple, J., Henshaw, J., McFarland, J., Harrison, J., and Van Dyke J., concurred.
[56 P. 626] Defendant has been convicted of murder of the second degree, and appeals from the judgment and order denying his motion for a new trial.
The information charging the commission of the crime is signed with the name of the district attorney of the county, "by T. J. Butts, assistant district attorney." It is now claimed that there is no authority in law for an assistant district attorney to sign an information in the name of his principal, and that, therefore, the motion to set aside the information should have been granted. The district attorney of Sonoma county is allowed an assistant district attorney by authority of the legislature. It has been held that an information is properly signed when the district attorney's name is attached thereto by a deputy district attorney. (People v. Darr , 61 Cal. 554; People v. Etting , 99 Cal. 577.) Again, it is held that an information signed by an assistant district attorney is valid. (People v. Turner , 85 Cal. 432.) If an information signed by a deputy district attorney in the name of his principal satisfies the law, and if an information signed by an assistant district attorney also satisfies the law, then there can be no question but that an information signed in the name of the district attorney by the assistant district attorney is sufficient.
It is next insisted that the verdict is contrary to the evidence. To this point we quote the following excerpt from the testimony of the defendant himself: "I saw he won't go to bed, and so I got up and lit the lamp and told him to go out to his room, and he would not do it, and I urged him along, and put the lamp on the table in the sitting-room, and urged him along to his room, and he got out of the sitting-room into the empty room, and there was an ax in the corner between the two doors, and I saw him raise that, and I went back to my bedroom and under the pillow I had my pistol and got it, and I walked out and urged him along to go to his bed, and he shook the ax around one way and the other way, and I fired three shots, the first one hitting the breast, and the others I don't know where they went. I went back to the sitting-room. The room was full of smoke, and I heard the ax drop and he walked out on the porch, and from there I don't know where he went, and I took the lamp and went out and found him dead on the ground." Upon this evidence alone the jury was authorized in law to find the verdict rendered.
It is claimed that a new trial should have been granted upon the ground of newly-discovered evidence. In view of the fact that Brown, the party who was ready to give the newly-discovered evidence upon a second trial, was present as a witness at the first trial, subpoenaed by the defendant, we are not strongly impressed with the showing made. It can be only in an exceptional case that the character of showing here disclosed should be deemed sufficient to demand a new trial. Especially in a case presenting these facts much should be left to the discretion of the trial court. New trials upon the ground now urged would be a most common occurrence if the precedent here sought should be declared. Harralson v. Barrett , 99 Cal. 610, is a case in point. It was there held that a lack of diligence in securing the evidence was fatal to the application. In this case there was no abuse of discretion upon the part of the trial court in so holding.
Defendant claimed to have done the shooting in self-defense, and upon that theory offered to prove by various witnesses that the character of the deceased for peace and quietness was bad. It is only in certain peculiar cases that this kind of evidence is admissible at all, and, conceding for present purposes that such a case is disclosed by this record, still we find no error committed by the court in the action taken. Under objection, the evidence was not admitted, the judge stating at the time that he would allow evidence as to the general reputation of the deceased for peace and quietness. Counsel for defendant declined to accept the offer made, and now claim reversible error in the ruling of the court in the rejection of the evidence offered. We will enter into no discussion as to the existence of any substantial difference between evidence as to the character of the deceased for peace and quietness, and evidence as to his general reputation for peace and quietness. It is sufficient now to say that the judge offered to allow counsel for defendant to examine witnesses as to the general reputation of the deceased for peace and quietness, and counsel should have been satisfied with that offer.
It was next attempted to show by the record of conviction that deceased had been previously convicted of a misdemeanor, namely, an assault upon one Whallen. This evidence was erroneous from any standpoint. Neither [56 P. 627] do we find any well-founded objection to the remarks of the prosecuting attorney in his address to the jury.
The court has carefully examined the instructions asked by the defendant which were refused by the judge. There is no substantial error to be found in such refusal. The charge to the jury was full, explicit, and legally sound. It appears to have fully covered the entire law of the case.
For the foregoing reasons the judgment and order are affirmed.