mine, but met him on his return to Alleghany there is no evidence that this mill belonged about July 23d; that he was at Alleghany to the Croesus Gold Mining & Milling Comfrom August 13th to about September 1st, pany, nor is this mill shown by the evidence and during that time met Hartwell fre- to be in Sierra county; the only evidence quently. being that it is about three miles from Alleghany, which latter place is in Sierra county. And there is no evidence that any offense or the offense charged was committed, to wit, the crime of burglary with intent to commit larceny, unless it can be inferred from the terms "held up," and these terms are used in connection with the Plumbago mill. We think it cannot be reasonably held that an admission to the "holding up" of a mill is an admission that the person entered the mill with intent to commit larceny. If it had appeared by evidence that the crime charged had been by some one committed on July 17th, the admission of the defendant that he and "his pals held up" the mill on that day might be held to connect him with the crime sufficiently to show what would be regarded as probable cause, since it is well settled that much less evidence is required to support the commitment than would be necessary to support a verdict of guilty. "Q. Did you have any conversation with him relative to the holding up of the Plumbago mill on the 17th day of July of this year? A. I did. Q. Please state the conversation. State everything in detail that happened when Mr. Hartwell was present. A. Well, we were sitting out in front of De Launey's Hotel, and I had a few pieces of high grade in my pocket, and I showed it to him, and we got talking, and he wanted to know if there was much of it at the mine, and I told him, 'Yes,' that Pearson had quite a bit in his safe, and he wanted to know if there would not be a good chance to get it from Pearson, and I told him I thought there was, so we went on talking. Mr. Snell (Attorney for Defendant): We ask that this all be stricken out as not responsive to the question. Mr. Redding (District Attorney): Yes; that is right; what we want is his statements relative to the offense of burglary committed at the Plumbago mill on the 17th day of July. A. We got in conversation about holding up and one thing or another, and he said him and his partner knew how to hold up the mill, and that they held up the Plumbago on the morning of the 17th. Q. Did he say who his partner was? A. He said he would introduce me to them later on, Thompson, Ed Hardy, and himself Jim Thompson." He testified that Hartwell did not introduce these parties, but that they introduced themselves, and that he had conversations with them when Hartwell was not present. "Q. What statements did Mr. Hardy and Mr. Thompson make regarding this hold-up?" Over Hartwell's objection, the witness answered: "Why, they told me that several times there that they were the ones that held Pearson up on the highway, and also held up the mill on the 17th of July-a fellow by the name of Hobart, Ed Hardy, and Arthur Hartwell." He testified that he had several conversations with these parties, except Hartwell, with whom he had no further conversation than above related, and in these conversations they explained "the details of the holdup." The foregoing is the substance of all the evidence on which the petitioner was held to answer. At the close of Simonetti's testimony the district attorney said: "Now, if your honor please, the point was raised by the attorneys for the defendant that the actual offense has not been proven. If there is any doubt in your honor's mind about being justified in holding this defendant for trial, I would suggest that the examination be continued until day after tomorrow so that a witness can be subpoenaed to prove the offense. I don't believe it is necessary, because we have the admissions of the defendant to the commis sion of the offense, but, if there is any doubt, I would ask a continuance of the case. The Court: These men are all charged together. I think there is evidence enough to hold the defendant over without any doubt at all." [1-2] It will be observed that the charge against petitioner was that he entered the mill of the Croesus Gold Mining & Milling Company, in the county of Sierra, with intent to commit larceny. The evidence was that he "held up" the Plumbago mill, but [3] Respondent claims that the complaint, being sworn to, can be used as an affidavit in support of the commitment, and it thus appears that the crime was committed. We do not understand that the complaint can be used as matter of evidence at the preliminary examination. In the Kansas case relied upon by respondent (Redmond v. State, 12 Kan. 172) the court said: "The original complaint has spent its force when the order of arrest is issued, and the order of arrest is the foundation for the preliminary examination." This must be true; for, if the evidence shows that a crime has been committed other than that charged in the complaint, the accused may be held for such crime. Code, § 872. Respondent cites Ex parte Dimmig, 74 Cal. 164, 15 Pac. 619, where the court said: Pen. "It may also be true that the original information might be treated as a deposition; and in such view, if it contained positive evidence of facts tending to show guilt, it might be sufficient as a basis for the issuance of a warrant." Respondent fails to notice what precedes and follows this quotation: though made only upon information and belief, "The original information may be sufficient, if followed by the deposition of the complainant, or some other witness, stating facts tending to show the guilt of the party charged." Then follows the statement used by respondent, the court adding: "But a mere affidavit in the form of an information, containing no evidence, and followed by no deposition_stating any fact tending to show guilt, is insufficient to support a warrant. The liberty of a citizen cannot be violated upon the mere expression of an opinion under oath that he is guilty of a crime.' The prisoner was discharged. It is not claimed that the complaint here contained any statement of facts or any thing more than the charge as we have shown above. It cannot, therefore, be resorted to as tending to prove that a crime was committed. The magistrate may have had reason to believe from outside sources that the crime charged had been committed, but we must act upon what was proven before him, and the record purports to contain all the evidence. Without some evidence that the crime charged had been committed, the admissions, in our opinion, were not alone sufficient to support the commitment. The prisoner is discharged. PEOPLE v. MURPHY. (Cr. 429.) (Cal. JAMES, J. Defendant was charged with having, on the 15th day of April, 1915, murdered William Murphy. Upon her trial a verdict of manslaughter was returned by the jury, and the court sentenced her to serve a term of two years' imprisonment in the state penitentiary. having been made and denied, an appeal was Motion for a new trial taken from that adverse order. was also taken from the judgment. An appeal and at the time of the alleged homicide the Deceased was the husband of appellant, two were living on a little ranch in the neighborhood of La Canada in the county of Los Angeles. Their habitation consisted of a tent, adjacent to which was a small wooden building. Fruit trees and grape vines were set about the place. Sometime after but near the noon hour, on April 15th, a neighbor named Lane, whose ranch adjoined that upof a gunshot, which was followed by heavy on which the Murphys lived, heard the sound groans, coming from the direction of the Murphy tent. He waited a moment and then started, as he testified, on a run in the direction from which the sound of the shot came. On his way he motioned to another neighbor at work in a vineyard to follow him. Lane testified that when he arrived at the Murphy place he found Murphy lying upon the ground in the driveway about 35 feet from the tent. His hat and pipe were on the ground a few feet away from his head, and he was groaning as though in great pain. Lane at that time saw no gun, but noticed a dead cat, (District Court of Appeal, Second District, Cal- which lay near Murphy's feet. A few mo ifornia. Nov. 3, 1915.) 1. CRIMINAL LAW 366-EVIDENCE-ADMISSIBILITY-RES GESTÆ. Evidence of a statement by deceased made several minutes after he was shot, that his wife, who was not present, fired the shot, which was not a dying declaration, is not admissible as part of the res gestæ, it appearing that the transaction, if any, was completed at the time it was made. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 806, 811, 814, 819, 820; Dec. Dig. 366.] 2. HOMICIDE 338-APPEAL-HARMLESS ER ROR. In a prosecution for killing her husband, where there was evidence that deceased said he stepped on the gun, the erroneous admission of evidence of a statement by deceased that his wife shot him was prejudicial. [Ed. Note.-For other cases, see Homicide, Cent. Dig. 88 709-713; Dec. Dig. 338.] Appeal from Superior Court, Los Angeles County; Frank R. Willis, Judge. Irene E. Murphy was convicted of murder, and from the judgment of conviction and an order denying new trial, she appeals. Reversed. Chauncey Gardner and Edward C. Gilbert, both of Los Angeles, for appellant. U. S. Webb, Atty. Gen., and Robert M. Clarke, Deputy Atty. Gen., for the People. ments later another neighbor arrived, and at tent where the couple had been in the habit this time Mrs. Murphy came from within the of sleeping. Murphy was carried into the tent and placed upon a bed, a physician was immediately summoned, and the man died within the next hour and a half. Before his death his clothes were removed, and it was found that a charge of gunshot, such as is ordinarily used for the killing of birds, had entered his body from the left and front and had passed, in part, first through the lower slightly above the hip. The charge of shot part of the left arm, and then on into the abdominal cavity, where it had cut the intestines and severed at least one large artery. Mrs. Murphy, the appellant, was in the tent at the time Lane arrived on the scene. After Murphy had been carried into the house, ter, and she said there was none, and when some of the neighbors asked her for hot wastarted to get up from the bed where she was they requested her to have some heated she sitting, but seemed unable to walk, and she then said that she could not do what was recution that she was intoxicated at the time, quested of her. It was the claim of the proseand the evidence tended to show that such was her condition. The testimony further, in so far as her actions at that time were at tempted to be described, was to the effect incriminating circumstances against which that she manifested no great grief over the was her positive denial that she had fired the condition of her husband, except that she shot which produced the fatal injuries to the once addressed an inquiry to the wounded deceased. man, calling him by his given name and ask. [1] It is claimed that evidence of a stateing him if he was going to leave her; also ment made by Murphy, the deceased, to the that she had lifted his head with her hands in witness Lane as to who had fired the shot, a considerate way, indicating some concern was erroneously admitted, as appellant was upon her part as to the husband's condition. not present at the time of the making of the One witness testified that on the night pre- statement; that it was therefore hearsay. ceding the alleged homicide he had met Mur- Lane testified that from the time he heard phy and the appellant in the city of Glen- the shot and the first groans until he arrived dale, which appeared to be the place where at Murphy's side about two minutes of time the Murphys changed cars to go to their passed; that the place where he was before home. The witness testified that both Mur- he started to run was at a distance of from phy and his wife appeared to be under the in- 150 to 175 yards from the place where he fluence of liquor, and that he, at their invita- found Murphy lying; that upon reaching tion, drank whisky from a bottle which they Murphy's side he asked him where he was had in their possession. A bottle containing hurt; that Murphy indicated the portion of whisky and one containing wine were found his body which had been wounded, by placin the tent after Murphy had been shot. This ing his hand there, and that then he (Lane) witness further testified that Murphy and his asked him how it happened, to which Murphy wife were quarreling, and that Mrs. Murphy replied: "My wife shot me." This testimony threatened her husband by saying that she was offered by the prosecution and received would "fix him with a shot gun," or words to by the court upon the theory that it was that effect. The testimony of the undertaker, properly a part of the res gestæ and therefore who went to remove the dead body of Mur- not subject to the rule against the admission phy, was to the effect that when he ques- of hearsay testimony. It is admitted that tioned appellant as to how the shooting oc- this statement possessed none of the essencurred she said that she did not know; that tials of a "dying declaration." From the narher husband had gone out from the tent, and rative of the occurrence as it has been set that she had heard the shot, and that Murphy forth in the foregoing, it will be noted that immediately called to her, saying, "Irene, I by the time Lane arrived at Murphy's side am hurt;" that she had run out from the the occurrence which resulted in the shooting tent and found her husband lying on the had entirely ended. If it may be said that ground; that she had tried to lift him up, but the acts, conduct, or words of the parties to being unable to carry him, had returned to a transaction which are expressed within a the tent to get a pillow with the purpose of time near to the principal occurrence are a placing it under his head, and that she was part of the res gestæ, then there was no error just about to return to him when the witness in the admitting of this testimony. There are Lane arrived on the scene. She told this some decisions, a number of them in jurisdicundertaker, so the testimony was, that the tions outside the state of California, which gun was lying at the side of her husband affirm that the proximity in point of time of when she found him, with his left hand ei- the occurrence to the happening of that ther upon it or near it. Being later interro- claimed to be a part of the res gestæ is an gated by attaches of the district attorney's important consideration in determining quesoffice, she reiterated her statement that she tions like that here presented. Our own Sudid not know how her husband had been shot, preme Court, in the case of People v. Vernon, but made a different statement regarding the 35 Cal. 49, 95 Am. Dec. 49, assumed the same location of the gun which she had previously ground in sustaining testimony there introstated she had picked up from beside her hus-duced. band and taken to the tent at the time she re- completely overruled by later cases in this turned for the pillow. The autopsy physician testified that there were no powder burns on the body. At the trial appellant, testifying in her own behalf, denied that she had shot her husband; denied that she made the threat testified to by the witness who claimed to have drunk liquor with the couple on the night of the 14th of April. She admitted having met this witness at the place he described, but stated that it was on April 12th and not April 14th. The substance of the testimony has now been stated, except that by which certain alleged statements made by Murphy after the shooting, are expressed, and it will be seen that, excluding such statements, the case against appellant rested upon proof of That decision, however, has been state. These later cases are expressive of what seems to be the most reasonable, fair, and logical measure to apply to such evidence, and that is that when competency is claimed for offered testimony of the acts, conduct, or words of a party to a transaction, expressed out of the presence of the other, on the ground that it is a part of the res gestæ, it must appear that the transaction in which the parties were engaged had not ended; in other words, that the actors had not ceased in their performance of things which made up the total of the occurrence. In the case of Ah Lee, 60 Cal. 85, the words of an English judge are quoted approvingly in argument. This judge, in defining the meaning of the term res gestæ as applied to a criminal case, wife in considering the other evidence which said: presented and set forth circumstances more "Whatever act or series of acts constitute, or or less incriminating. To our minds, the erin point of time immediately accompany and terror was not only prejudicial, but such a one minate in the principal act charged as an offense against the accused, from its inception as may be said to have produced a miscarto its consummation or final completion, or its riage of justice at this trial, within the prevention or abandonment, whether on the part meaning of the constitutional provision. of the agent or wrongdoer in order to its perThe judgment and order are reversed. formance, or on that of the patient or party wronged in order to its prevention, and whatWe concur: CONREY, P. J.; SHAW, J. ever may be said by either of the parties during the continuance of the transaction, with ref(28 Cal. App. 687) erence to it, including herein what may be said by the suffering party, though in the absence of PEOPLE v. CONVERSE. (Cr. 598.) the accused during the continuance of the ac- (District Court of Appeal, First District. Caltion of the latter, actual or constructive, e. g., ifornia. Nov. 1, 1915.) in the case of flight or applications for assistance, form part of the principal transaction, 1. WITNESSES 379- IMPEACHMENT — EVIand may be given in evidence as part of the res gestæ or particulars of it; while, on the other hand, statements made by the complaining party, after all action on the part of the wrongdoer, actual or constructive, has ceased, through the completion of the principal act or other determination of it by its prevention, or its abandonment by the wrongdoer, such as, e. g., statements made with a view to the apprehension of the offender, do not form part of the res gestæ, and should be excluded." This measure was applied again in the case of People v. Wong Ark, 96 Cal. 125, 30 Pac. 1115. That case presents facts which are very similar to those illustrated by the evidence here. At that trial a police officer was permitted to testify that after the shooting he returned to the place where the deceased was lying, a distance of about 140 yards, and had a conversation with her in which the deceased declared that the defendant was the man who had shot her. The court held that the testimony was improperly admitted, and a new trial was allowed for that reason. DENCE. Where a witness in a prosecution for rape attempted to discredit the prosecuting witness, it was competent in showing his bias and credibility. to show that he had said that "he knew defendant was guilty but he was not fool enough to swear to it in court." [For other cases, see Witnesses, Cent. Dig. §§ 1209, 1220-1222, 1247–1256; Dec. Dig. 379.] 2. CRIMINAL LAW 369-EVIDENCE-PRIOR ACTS OF INTERCOURSE-ADMISSIBILITY. fendant's prior acts of sexual intercourse with In a prosecution for rape, evidence of dethe prosecuting witness was admissible as showing the adulterous disposition of the defendant. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 822-824; Dec. Dig. 369.] 3. CRIMINAL LAW 829-TRIAL - INSTRUCTIONS SUFFICIENCY. Where the court's charge on reasonable doubt concisely stated the correct rule, it was not error to refuse the defendant's requested charge thereon. Law, Cent. Dig. § 2011; Dec. Dig. 829.] 4. CRIMINAL LAW 763, 764-TRIAL-IN- In a prosecution for rape, it is not error to refuse a requested instruction on the weight of a particular portion of the evidence. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1731-1748, 1752, 1768, 1770; Dec. Dig. 763, 764.] CRIMINAL LAW S07-TRIAL-ARGUMENTATIVE INSTRUCTIONS. refuse a requested instruction which is argumenIn a prosecution for rape, it is not error to tative. [Ed. Note. For other cases, see Criminal' Law, Cent. Dig. §§ 1805, 1959, 1960; Dec. Dig. 807.] 6. CRIMINAL LAW 811-TRIAL-INSTRUC [2] By all of the evidence in this case it seems very clear that at the time Lane arrived at the place where Murphy was lying, all acts of the assailant, if any such there was, had ceased. The shooting had taken place and Murphy was lying on the ground-5. had evidently remained there for a period of not less than two minutes before he was approached by Lane and made the statement that his wife had shot him. That this assertion as given in testimony to the jury, in view of the circumstantial state of the evidence against the accused, was vitally damaging can admit of no doubt. And to emphasize the gravity of the error, reference may be made to the testimony of one of the witnesses, a neighbor of the Murphys and who had known the deceased for several years. He testified that while Murphy was lying upon the bed after they had carried him into the tent, he (the witness) said to him: "Bill, how did this happen?" This testimony was objected to by the prosecution, but was admitted by the court, the witness testifying that Murphy had replied: "I stepped on it." It would have been quite natural and no doubt was the fact that the jury gave great weight to the accusation first made by the deceased against his TIONS-PARTICULAR WITNESS. In a prosecution for rape, it is not error to refuse a requested instruction which singles out for comment the testimony of a particular wit ness. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. 88 1787, 1969-1972; Dec. Dig. 811.] 7. WITNESSES 287 REDIRECT EXAMINATION-SCOPE-ConversaTIONS. sible conversation is admitted on cross-examinaWhere a portion of a material and admistion, it is proper by redirect examination to include the entire conversation, even if leading questions are necessary to refresh the witness memory. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 930, 1000-1002; Dec. Dig. 287.] 8. WITNESSES 287-EXAMINATION-REDI- was proper for the people to show, as was would not be "fool enough to swear to it in 9. CRIMINAL LAW 419, 420-HEARSAY EVI-plaining witness was properly admitted as DENCE-ADMISSIBILITY. Such a question was inadmissible because it called for hearsay upon hearsay. tending to show the adulterous disposition of the defendant. People v. Boero, 13 Cal. App. 687, 110 Pac. 525; People v. Koller, 142 Cal. 621, 76 Pac. 500; People v. Stratton, 141 Cal. 604, 75 Pac. 166; People v. Castro, 133 Cal. 236-COMPETENCY-WIFE'S 12, 65 Pac. 13, and People v. Price, 147 Pac. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 973-983; Dec. Dig. 419, 420.] 10. WITNESSES TESTIMONY AGAINST HUSBAND. Admission of question to the prosecuting witness in a prosecution for rape on redirect examination, "Didn't your aunt tell you that your mother had said to her that you had sexual intercourse with your father?" held erroneous, since thereby the wife's testimony was indirectly given by the husband. 591. The case of People v. Ah Lean, 7 Cal. App. 628, 95 Pac. 380, is cited as an authority to the contrary. As was said in People v. Boero, supra, "The language upon this subject found in People v. Ah Lean was evidently inadvertently used." Consequently the case of People v. Ah Lean cannot be con [Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 817-826; Dec. Dig. 236.] 11. CRIMINAL LAW ~695 — EVIDENCE - OB-sidered as an authority on the subject. JECTION-SUFFICIENCY. In spite of the rule that the efficacy of an objection to evidence depends upon the precision with which it is made, an objection to testimony on the ground of immateriality is sufficient to raise the question of its incompetency as hearsay, where it is palpably hearsay, and the error would be apparent to the court on merely calling the question to its attention for any cause. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1633-1638; Dec. Dig. 695.1 12. CRIMINAL LAW 1170%2 REVIEW PREJUDICIAL ERROR-EVIDENCE. The error in admitting a question to the prosecuting witness in a prosecution for rape, "Didn't your aunt tell you that your mother had said to her that you had sexual intercourse with your father?" was prejudicial, owing to the probability that such a statement of the wife could not be overcome. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 3129-3135; Dec. Dig. 11702.] Appeal from Superior Court, Fresno County; W. M. Conley, Judge. N. B. Converse was convicted of assault with intent to commit rape, and from the conviction, and order denying new trial, he appeals. Reversed and remanded. Lewis H. Smith, of Fresno, for appellant. U. S. Webb, Atty. Gen., and F. L. Guerena, Deputy Atty. Gen., for the People. LENNON, P. J. The defendant in this case was charged with the crime of rape upon his 15 year old daughter. He was convicted of assault with intent to commit rape, and has appealed from the judgment and from the order denying him a new trial. [1] The witness Charley Converse having testified to certain circumstances which tended to discredit the complaining witness, it [3] The charge of the court concerning the rule of law relating to the question of reasonable doubt concisely stated the rule in that behalf, and therefore it was not error to refuse the defendant's requested instruction upon the same subject. [4-6] It is well settled that argumentative instructions, instructions which single out the testimony of a particular witness for comment, and instructions bearing on the weight to be attached to a particular piece of evidence, are properly refused. People v. Keith, 141 Cal. 686, 75 Pac. 304; People v. Lonnen, 139 Cal. 634, 73 Pac. 586; People v. Nunley, 142 Cal. 105, 75 Pac. 676. Defendant's requested instructions which the trial court refused were faulty in the particulars above stated; and when measured by the rule declared in the foregoing authorities they were all rightfully rejected. [7, 8] The trial court erred to the pronounced and positive prejudice of the defendant in its ruling permitting the district attorney to ask the complaining witness upon redirect examination the question, "Didn't your aunt tell you that your mother had said to her that you had had sexual intercourse with your father?" This question, which was answered in the affirmative, was insisted upon by the district attorney, and permitted by the trial court against the objection of counsel for the defendant that it was "immaterial and leading," upon the erroneous assumption that it was a connected and undisclosed portion of a conversation between the complaining witness and her aunt which was referred to and called for in part by counsel for the defendant upon cross-examination of the complaining witness. If the theory upon which For other cases see same topic and KE-NUMBER in all Key-Numbered Digests and Indexes |