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the Penal Code, and in pursuance thereof the witnesses were duly and regularly subpoenaed in the counties where found. Notwithstanding this fact they failed to appear at the trial, and, in consequence of their non-appearance, defendant moved the court for a continuance of the cause, which motion was denied. The motion was accompanied by an affidavit showing due service of a subpœna; what facts the defendant expected to prove by the absent witnesses; that the facts (stating them) were material to the defense; that he could not prove the same facts by any other witnesses; and that he expected to be able to procure their attendance, if the trial was postponed to some future day. The sufficiency of the affidavit was not questioned by the attorney for the people, but the motion was denied for the reasons stated in the following order:

"The court then and there denies the defendant's motion for a continuance of the trial of said cause, giving as a reason for denying the same that the court is the guardian of the interests of the county; that a jury is already in attendance, and the court cannot put the county to the expense of calling another jury; and that it may appear during the course of the trial that other witnesses could testify to the same facts as mentioned in defendant's affidavit for continuance; and the affidavit shows that the evidence would be cumulative."

The only proper reason given by the court for denying the defendant's motion for a continuance is that the affidavit shows that the evidence would be cumulative. We fail to find any such thing in the affidavit. On the contrary, the affidavit states "that the said facts, which affiant can prove by Hayes and Hill, (the absent witnesses,) cannot be proved by any other person or persons." By section 1052 of the Penal Code it is provided that "when an action is called for trial, or at any time previous thereto, the court may, upon sufficient cause, direct the trial to be postponed to another day. Under the provisions of the law as well as under article 1, § 13, of the constitution, the defendant was entitled to the personal attendance of his witnesses at the trial, and on a proper showing (which was made in this case) to a continuance, and it was error to deny such motion. It was so held by the court in the case of People v. McCrory, 41 Cal. 458. The court there says:

"There was a sufficient showing as to the materiality of the absent witnesses, and there was apparently no lack of diligence in the effort to procure their attendance. The attorney general has failed to point out any particular wherein the affidavit was defective, and I discover none. I think the showing was sufficient, and the motion should have been granted, particularly as this was the first motion for a continuance.”

All that was said by the learned justice (CROCKETT) in the foregoing case applies with full force to the case we are now considering. There are other errors assigned which it is unnecessary for the court to pass upon, excepting some in relation to the instructions. we have already remarked, about 17 instructions were moved by the prosecution and 58 by the defense. It is reasonable to suppose that

As

these instructions embodied all the law it was necessary to give the jury, but after passing on these instructions, and giving a large number of them to the jury, the court proceeded of its own motion further to charge the jury, and in such charge fell into at least two errors, which will be noticed. The court said:

"You will apply the evidence in this case to the law of justifiable homicide I have read to you, and if you believe from the evidence, beyond a reasonable doubt, that defendant, at the time he fired the shot, was in imminent danger of losing his life or of having inflicted upon him a great bodily injury," etc.

It was not necessary that the fact of danger to life or limb should be shown by the evidence beyond a reasonable doubt, to entitle him to an acquittal, and we cannot say that the defendant was not prejudiced by such an erroneous instruction at the end of the charge to the jury. Another error occurs in the closing part of the charge, which is equally serious and erroneous. Charging the jury on the question of good character, the court said:

"Evidence of character can only be considered in relation to the particular crime charged in cases where the guilt of the accused is doubtful."

This is contrary to the rule laid down by the supreme court in numerous cases. It will be sufficient to refer to two or three of these cases. People v. Ashe, 44 Cal. 288; People v. Bell, 49 Cal. 485. In the latter case the court says:

"The jury must take such evidence [of character] into consideration for the purpose of determining whether it creates a reasonable doubt of his guilt."

It is not improper for us to call the attention of the court below, as well as other superior judges, to the suggestion of Justice BALDWIN in the case of People v. Gibson, 17 Cal. 283, on the subject of instructions to the jury in criminal cases.

Judgment and order reversed, and cause remanded for a new trial. I concur:

MYRICK, J.

I concur in the judgment: THORNTON, J.

(68 Cal. 101)

PEOPLE V. HAMBLIN. (No. 20,072.)

Filed November 26, 1885.

1. WITNESS-IMPEACHMENT BY EVIDENCE OF CHARACTER - EVIDENCE OF PARTICULAR ACTS.

A witness may be impeached by the party against whom he was called by contradictory evidence that his general reputation for truth, honesty, and integrity is bad, but not by evidence of particular wrongful acts, except that it may be shown by the examination of the witness, or record of the judgment, that he has been convicted of a felony. But questions, the object of which were to make it evident that the witness had been arrested on divers occasions for shooting at individuals who had incurred his displeasure, should not be admitted, and to allow them to be asked and to compel their answer would be error. So, also, it would be improper to interrogate him, and force an answer which might show him to be a man engaged as door-keeper of a gam

bling house, which was an unlawful employment, with a guilty knowledge of its nature.

2. HOMICIDE-MURDER IN FIRST DEGREE DEFINED-MALICE.

When a killing is shown to be without extenuating circumstances, malice is presumed; and, when this malice is thus shown, if the evidence clearly discloses deliberation or premeditation in the act of killing, or the existence of an intention to kill while giving the fatal blow, such a killing is murder in the first and not in the second degree.

Commissioners' decision.

Department 1. Appeal from superior court, city and county of San Francisco.

E. A. Phillsbury, for appellant.

The Attorney General, for respondents.

FOOTE, C. The defendant in this case was convicted of murder in the first degree. He moved for a new trial, the motion was denied, and from the judgment of conviction and the order denying a new trial he appeals. The defendant was called as a witness in his own behalf. Upon cross-examination the district attorney asked the following questions:

"Question. I propose to ask you this question, sir: On the night or evening of the twenty-fourth of October, 1881, were you arrested on Third street or Kearney street, in this city, for shooting at a man by the name of James Sanderson, and whether or not you were imprisoned under said arrest in this building?"

"Q. Were you imprisoned in the city prison here? Were you brought to the city prison, and imprisoned in the city prison at that time?"

"Q. On the twenty-seventh day of December, 1872, in the city of Stockton, in this state, were you arrested and imprisoned for shooting at a man by the name of Bell, who was fireman on the locomotive on the pay car of the Central Pacific Railroad?"

"Q. Were you arrested on the night of the twenty-seventh day of December, 1872, at the city of Stockton for firing at any man, and imprisoned,-and imprisoned for firing at any man up there?"

The witness was compelled to answer each of these questions against his exceptions as defendant.

In a case of recent occurrence in this state, where similar questions were put to a witness, the court said:

"The only possible object of asking the questions was to impeach the credibility of the witness. But the testimony was not admissible for that purpose. The mere fact that the witness had been arrested does not prove, nor tend to prove, that he had been convicted of any offense; and until there is proof of conviction the witness was protected by the legal presumption of innocence. Hence the rule formulated by section 2051, Code Civil Proc.: A witness may be impeached by the party against whom he was called by contradictory evidence that his general reputation for truth, honesty, and integrity is bad, but not by evidence of particular wrongful acts, except that it may be shown by the examination of the witness, or record of the judgment, that he has been convicted of a felony.' People v. Elster, 3 Pac. Rep. 888, and cases there cited."

In the case at bar there was no effort whatever made to show that the defendant, the witness, had ever been convicted of a felony; the object of the questions seems to have been to make evident that on

divers occasions he had been arrested for shooting at individuals. There the effort to discredit him stopped. The effect of this may have been to create a prejudice in the minds of the jury against the defendant as a man ready with a pistol to shoot at those who had incurred his displeasure. Hence to allow the questions to be asked, and to compel their answer, was error prejudicial to the defendant. This further question, on cross-examination, was asked the defendant:

"Question. I suppose, Mr. Hamblin, that you knew it was an unlawful business while you were employed there as door-keeper.”

It was objected to, but the objection was overruled, and the witness required to answer. The witness had previously testified to his being employed as door-keeper at a place on Kearny street, in San Francisco, that was frequented by the deceased. It was legitimate for the purpose of showing the terms of intimacy, or the contrary, of the defendant and deceased by proper questions to locate the defendant. But in that connection it was improper to interrogate him, and force an answer which might show him to be a man engaged as door-keeper of a gambling-house, which was an unlawful employment, with a guilty knowledge of its nature; and the minds of the jury might thereby have been prejudiced against him as a willful violator of the law. As we understand the part of the charge of the court complained of, it announced the proposition, taken in connection with the other portions thereof as given, that when the killing is shown to be without extenuating circumstances malice is presumed; that when this malice is thus shown, if the evidence clearly discloses deliberation or premeditation in the act of killing, or the existence of an intention to kill while giving the fatal blow, that such a killing is murder in the first, and not in the second, degree. This is the law as stated in People v. Doyell, 48 Cal. 93-97, where the case of People v. Long, 39 Cal. 694, is explained. And the court does not, therefore, appear in the whole charge as given to have committed error.

For the reasons stated, the judgment of conviction and order denying a new trial should be reversed, and the case remanded for a new trial.

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BY THE COURT. For the reasons given in the foregoing opinion, judgment and order reversed, and cause remanded for a new trial.

v.8F,no.11-44

(2 Cal. Unrep. 573)

PEOPLE V. JOHNSON. (No. 20,075.)

Filed November 26, 1885.

CRIMINAL LAW-APPEAL-INSTRUCTIONS, PRESUMPTION IN FAVOR OF.

Where, in a criminal case, none of the evidence given on the trial appears in the record on appeal, the appellate court must presume that the instructions granted by the court at the instance of the prosecution, and its charge to the jury on its own motion, were proper, if such a state of the evidence therein is conceivable as may have rendered them correct.

Commissioners' decision.

Department 1. Appeal from superior court, county of Mendocino. T. L. Carothers, for appellant.

The Attorney General, for respondents.

FOOTE, C. Appeal from a judgment of conviction of murder in the first degree, and from an order denying a new trial, in the superior court of the county of Mendocino.

There is an absence of all evidence in the transcript before us. We cannot then say that the instructions asked by the defendant, and refused by the court, had any application to the case as made. People v. Herbert, 61 Cal. 545.

The same thing may be said as to the alleged error, that the court, not being requested so to do by the defendant, failed to instruct the jury as to what constituted either justifiable or excusable homicide.

That part of the court's charge in reference to the law of reasonable doubt, is not subject to the criticism made on it. The jury were not misled into supposing that they were authorized to become “satisfied" of the defendant's guilt from anything except the evidence in the case. The authorities cited by the defendant do not sustain him in the positions he has assumed.

As has been before stated, none of the evidence given on the trial of this case is before us for examination. We must presume, therefore, that the instructions granted by the court at the instance of the prosecution, and its charge to the jury on its own motion, were proper, since such a state of the evidence therein is conceivable as may have rendered them correct. People v. Padillia, 42 Cal. 535. The judgment and order should be affirmed.

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BY THE COURT. For the reasons given in the foregoing opinion the judgment and order are affirmed.

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