Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

the city tax-collector,

and a li- proach absolute certainty; that is, a condicense tax must be paid therefor for engaging

tion of their minds so perfect, complete, and

unconditional as to exclude the possibility of a in carrying on or pursuing every business or

doubt,"--is properly refused, as belief beyond occupation mentioned hereinafter in this ordi

a reasonable doubt of the guilt of the accused nance, within the corporate limits of the city is alone required. of San Luis Obispo, as follows:

2. An instruction in regard to making one

a principal in a crime who aids in its commis"Sec. 26. For each bar-room, saloon or oth

sion is presumably injurious, where there is no er place where vinous, spirituous or malt liq- evidence to base it upon, but this presumption uors are sold by the glass, bottle or other- may be rebutted by an affirmative showing

that the error was barmless. wise, to be drank upon the premises where sold, twenty-five dollars per quarter.”

Commissioners' decision. In bank. ApThe petitioner was prosecuted and convict

peal from superior court, Nevada county; ed for a violation of the foregoing ordinance,

John Caldwell, Judge. and is now held a prisoner by virtue of a

The defendant, George B. Smith, was concommitment based upon such conviction.

victed of manslaughter. From an order The complaint does not state a cause of ac

denying a motion for new trial, defendant tion. It is fatally defective in not bringing appeals. Affirmed. the acts of petitioner within the prohibitions A. J. Ridge and C. W. Cross, for appellant. found in the ordinance. A license is requir- Atty. Gen. Hart, for the People. ed for keeping or conducting a bar-room, saloon, or other place where vinous, spirituous, VAN CLIEF, C. Upon an information acor malt liquors are sold, to be drank up- cusing him of the crime of murder, the deon the premises. The complaint charges fendant was convicted of manslaughter, and the prisoner with carrying on “the busi- sentenced to imprisonment in the state prisness of selling liquor." Upon the slight- on for the term of five years, and has apest inspection of the ordinance, it will be per- | pealed from the judgment, and from an orceived that it does not forbid "the business of der denying his motion for a new trial. selling liquor.” No reference is made in the 1. Counsel for appellant contends that the complaint to that part of the ordinance refer- verdict of the jury is contrary to the eviring to "a saloon or bar-room or other place”; dence. No particular in which the verdict and, conceding the term “liquor” to be broad is claimed to be contrary to the evidence is enough to include "vinous, spirituous or malt specified either in the brief of counsel for liquors,” still the complaint contains no alle appellant or in the bill of exception; and, gation that the liquors were to be drank upon though the evidence is wholly circumstanthe premises where sold; and this element tial, it strongly tends to prove that the deof the ordinance is certainly a most material

fendant committed the crime of which he one, and must necessarily form a material was found guilty, and appears to be sufii. element in the case. The allegations of the cient to justify the verdict. complaint are broad enough to include a deal

2. It is contended that the court erred er who sells liquor by wholesale, and not to

in refusing to give to the jury the following be drank upon the premises, yet the ordi

instruction: “(2) The jury are directed that nance covers no such case. The allegations their opinion of the guilt of the defendant, of the complaint are sufficiently broad in- based upon the evidence in this case, must clude a retail vendor who travels about the nearly approach absolute certainty; that is, country selling liquors, and who has no “bar, a condition in their minds so perfect, comor saloon or other place”; yet the ordinance plete, and unconditional as to exclude the does not cover that case. The prisoner is possibility of a doubt." This requested incommitted for the offense "charged in the struction is obviously erroneous, in that it complaint," and the commitment necessarily

requires a condition in the minds of the falls with the complaint. We conclude that jurors which shall exclude “the possibility the allegations of the complaint charge no of a doubt," whereas the law requires only violation of any ordinance of the city of San a belief to that degree of moral certainty Luis Obispo to which our attention has been

which excludes all reasonable doubt of the directed. For the foregoing reasons the pris- guilt of the accused. And this legal qualioner is discharged.

fication of the doubt to be excluded implies

the "possibility" of unreasonable doubt, We

BEATTY, C. J.; McFAR- which the requisite degree of belief need not LAND, J.; HARRISON, J.; VAN FLEET, exclude. J.; TEMPLE, J.; HENSHAW, J.

3. At the request of the district attorney. the court instructed the jury as follows:

"The jury are instructed that all persons (105 Cal. 676)

concerned in the commission of a crime, PEOPLE v. SMITH. (No. 21,163.)

whether it be a felony or a misdemeanor, (Supreme Court of California. Jan. 28, 1895.)

and whether they directly commit the act CRIMINAL LAW-INSTRUCTIONS.

constituting the offense, or aid and abet in 1. An instruction to the jury that "their

its commission, or, not being present, have opinion of the guilt of the defendant, based

advised and encouraged its commission; and upon the evidence in this case, must nearly ap- all persons counseling, advising or encourag

concur:

ing children under the age of fourteen years, | beranes, on ground of plaintiff's mental Inca lunatics, or idiots to commit any crime, or pacity to execute the deed. Tried by couri who by fraud, contrivance, or force occa- without a jury. Judgment for defendant. sion the drunkenness of another for the Plaintiff appeals. Affirmed. purpose of causing him to commit any crime, or who by threats. menaces, com

D. M. Delmas (Morehouse & Tuttle, of coun mand, or coercion compel another to commit

sel), for appellant. Myrick & Deering and Al. any crime,-are principals in any crime

exander & Daugherty, for respondent. so committed.” Appellant contends that there is no evidence of the hypothetical MCFARLAND, J. This action was brought facts upon which this instruction was based; in the name of Isabel Soberanes by Benito that the propositions of law therein stated Soberanes, who, for that purpose, procured are merely abstract propositions, having no himself to be appointed her guardian ad litconcrete connection with the evidence; and em, to set aside a deed of conveyance of land thet they probably bad the effect to confuse executed by said Isabel to the defendant, or mislead the jury to the prejudice of the Abel Soberanes, on the ground of her mental defendant. It it true that there was no incapacity and undue influence of said defendevidence substantially tending to prove any ant. Judgment went in the superior court fact stated in either of the propositions of for defendant, and this present appeal is from which the instruction is composed, except an order denying plaintiff's motion for a new that defendant alone committed the crime trial. There was also an appeal by plaintiff of which he was convicted; and the only from the judgment, which was determined question to be decided is whether or not it here in favor of defendant. 97* Cal. 140, affirmatively appears from the record that 31 Pac. 910. The findings are very full, and the jury could not have been misled or con- on the appeal from the judgment the case was fused by the instruction to the prejudice of considered in nearly all its aspects in the the defendant, for, while it is well settled opinion delivered by Mr. Justice Paterson, the that such an instruction is erroneous, and law applicable to it declared, and the conclutherefore presumably injurious, yet the pre

sion reached that the findings supported the sumption of injury may be rebutted and judgment. Appellant contends that, upon an overcome by an affirmative showing or ap- appeal from an order denying a new trial, a pearance upon the record that the error was former decision on an appeal from the judg. barmless, and I think it so appears in this

ment does not establish the law of the case; case, since the jury was imperatively in- but, however that may be, we are satisfied structed that “unless the jury are entirely that the views expressed in the opinion on the satisfied from the evidence that the defend- former appeal are correct. The only quesant, and no other person, killed the de- tion, therefore, to be considered on this presceased, they should acquit the defendant." ent appeal is the sufficiency of the evidence to I think the judgment and order should be sustain the findings. affirmed.

To hold that the evidence does not warrant

the findings would be to plainly violate the We concur: BELCHER, C.; HAYNES, C. rule that we will not here weigh evidence that

is really and substantially conflicting. That PER CURIAM. For the reasons given in

rule is, to some extent, founded on the fact the foregoing opinion, the judgment and or

that the trial judge has the opportunity of der are affirmed.

having the witnesses in person before him;

and the advantage of seeing and observing, (106 Cal. 1)

and to some extent at least knowing, the witSOBERANES V. SOBERANES. (No. 15,

nesses, is very important in such a case as 462.)

the one at bar. Here was a family quarrel, (Supreme Court of California. Jan. 28, 1895.)

and the members of the family were before

the judge exhibiting their manners, tempers, REVIEW ON APPEAL-CANCELLATION OF DeepCAPACITY.

interests, prejudices, and characters in forms 1. Evidence that is really and substan- which cannot be brought here in a printed tially conflicting will not be considered upon ap transcript. We do not see anything in the evpeal. 2. The evidence showed that the grantor

idence that would warrant us in disturbing

the findings, and it would be a useless work was an illiterate woman, and was ignorant of business outside of her household and domes- to reproduce the evidence here. Indeed, the tic affairs, but bad good natural intellectual findings themselves show very fully what the faculties, and that, after the execution of the deed in question, she had given to some of the

evidence was; that is, no important or conwitnesses her motive for making it. Held, that

trolling fact can be deduced from the evi. the grantor had sufficient capacity to execute dence that does not appear in the findings. In e deed.

fact, the real question in the case is, and alIn bank. Appeal from superior court, Mon- ways has been, do the findings support the terey county; James F. Breen, Judge. judgment? But that question was determin

Action brought by Benito Soberanes, guard- ed in the affirmative on the former appeal, in lan ad litem, to set aside deed given by plain- an elaborate opinion in which the whole case Hiff. Isabel Soberanes, to defendant, Abel So was fully stated and discussed; and, as we

* For opinion on rehearing, see 39 Pac. 527.

have said, we think it was correctly deter- for courts; that question was with her alone. mined. The two main questions of fact were, The order denying a new trial is affirmed. was Mrs. Soberanes mentally capable of executing the deed? and was she fraudulently

We concur: GAROUTTE, J.; HARRISON, procured to do so by the undue influence of

J.; VAN FLEET, J. the respondent? And we cannot say that the evidence did not warrant the court in answering the former question in the affirmative and

(106 Cal. 73) the latter in the negative. This is not a case where a woman had made a conveyance simi

PEOPLE v. SMITH. (No. 21,158.) lar to the one here involved, and where after- (Supreme Court of California. Feb. 6, 1895.) waris she herself had asked to have it set

MURDER SUFFICIENCY OF EVIDENCE

EXPERT aside on account of fraud or undue influence. TESTIMONT-CAUTION TO JURY-EVIDENCE OF Mrs. Soberanes did not bring this action; it

ANOTHER KILLING-INSTRUCTIOXS. was brought and has been prosecuted against 1. In a trial for murder, it appeared that her wishes. The execution of the conveyance

defendant, deceased, and another person lived to the defendant was in pursuance of an in

in the same house. Two days after defendant

left the house, the dead bodies of his partners tention so to do long entertained by her, and were found in a river near by; deceased havshe afterwards repeatedly expressed her sat- ing been struck on the head, and the othe“ isfaction with it. Jose Soberanes, brother of

having had the top of his head shot away. The her deceased husband, testified, among other

door of the housa was locked, and a piece of

human skull and blood and brains were found things, as follows: “Sue said that when Fran- on a platform in front thereof. There was a cisco, her husband, died, the part that she

trail of blood from the house to the river, and

also marks showing that a heavy body had would inherit of the property she would give

been dragked to the river. There was evidence to the son or sons who respected and took care of an effort to hide the blood by covering it with of her. She repeated this at her house almost dirt, and that the dirt was obtained with a every time I went to visit her, both before

tool with a protuberance on its back. In the

house an ax was found, which appeared to and after her husband's death." This witness

have been washed since it was used. No bedalso testified that after the execution of the ding was in the house, though the men had deed he asked her: "How is it that you have

beds. Defendant was arrested in another coun

ty three days after he went away, and with sold everything to Abel and given your other

him were found a shotgun, a gold watch and children nothing? What is your motive?

chain, a shovel, six pairs of blankets, overAnd she answered that the reason she had for alls, and half a dozen suits of clothes. The giving everything to Abel was because a long

shovel har a protuberance similar to the tool

with which the earth was dug, and there was a time before her intentions had been to give

mark on it resembling blood. The overalls everything to Abel; that Abel was the one were smeared with human blood. Some of that always cared for her, and that Abel was the dothing was too small for defendant, but her son, her father, her husband, and was ev

might have fitted one of his partners. One key

of the house was in defendant's pocket, the only erything in the world to her; and that her

other one being in the pocket of deceased. Held other children didn't do anything for her, and suliicient to warrant a conviction. that she didn't give anything to her other 2. It was proper, as part of the res gestae, children because they didn't respect her or at

to admit in evidence the articles found in de

fendant's possession. tend her." About a month after the execu

3. Defendant having testified that all the tion of the deed, when she was sick, her spir- stuff he took when leaving the house was his itual adviser remonstrated with her about own, and that all the goods of his associates giving nothing to the other children, and she

were in the house when he left, it was proper,

on cross-examination, to question him as to said she would do the same thing "an hun

whether goods found with him did not belong dred times.” He testified that “in talking to deceased. with the lady I told her, in substance, this: 4. Where, on a trial for murder, the expert that before the judgment of God she ought to

testimony was that of a doctor, as to whether

blood found on clothes was buman blood, and treat the children all equally, and what for his testimony was mainly as to the manner of you did so; you left everything to your son determining the character of blood, and there Abel, and not to your sons; and she gave me

was nothing to arouse suspicion as to his ca

pacity or impartiality, it was not error to rethe reasons, and in consequence I found the

fuse to charge that export evidence should be reasons logic, and I considered as spiritual received with great caution. adviser I had no more to say." The evidence 5. In a trial for murder it appeared that de. showed, as the court found, that she was an il

ceased lived in the same house with defendant

and another man, whose body, with the top of literate woman, and ignorant of business out

the head shot away, was found in the river side of her household and domestic affairs; along with that of deceased. Deceased was but there was evidence that she had ordinari

killed by a blow from an ax. llell, that evily good natural intellectual faculties, was of

dence of the finding of blood stains, and por

tions of a human skull and brains, in front sound mind, and fully comprehended what of the house, some distance from the river, was she was doing when she executed the deed. admissible to show that the person whose body Under these circumstances, we cannot inter

was found with that of deceased could not have

killed him. fere with the findings of the court below. Whether or not it was a proper and com- Commissioners' decision. In bank. Apmendable thing for her to give all her prop- | peal from superior court, Colusa county; E. erty to one of her children is not a question | A. Bridgford, Judge.

[ocr errors]

was

Fremont Smith was convicted of murder in making a similar mark to those found in the the first degree, and appeals. Affirmed. pits, and there was some evidence of a mark

upon it resembling blood. The overalls were Edwin Gwinford, for appellant. Atty. Gen.

smeared with blood, which, upon being anaHart, for the People.

lyzed by Prof. Price, an analytical chemist, and examined microscopically,

proSEARLS, C. The defendant, Fremont nounced to be human blood. A portion of Smith, was convicted of murder in the first the clothing was too small for defendant, but degree, and sentenced to suffer the extreme might have fitted one of the deceased men, penalty of the law, for the felonious killing of who was much smaller. There were two one Dolph, at the county of Colusa, state of keys to the house, one of which was found California. The appeal is from the judgment | upon defendant, and the other in the pocket and from an order denying defendant's mo- of the pants upon the body of Dolph. tion for a new trial.

The chain to the gold watch had been seen The first point relied upon by appellant for previously upon the person of Dolph. Upon a reversal is that the evidence is insufficient a pair of old shoes found near the house, and to justify the verdict of the jury. The de- admitted by defendant to be his, human fendant was the owner of a span of horses, blood was found. There were many other harness, and buckboard wagon.

In the fall circumstances, of less importance, tending to of 1893 he formed a partnership in the fishing point to defendant as the guilty person. business with two men, of whom but little Taken together, they are believed to be sufseems to be known, except that they were ficient to uphold the verdict, and to stamp the fishermen, and that one was called "Charlie,” defendant as the perpetrator of a most heiand the other, "Dolph." The parties occupied nous murder. a house in Moulton's pear orchard, adjoining Defendant asked the court to instruct the the levee of the Sacramento river, county of jury in the following language. The instrucColusa. Charlie and Dolph did the fishing, tion was given as asked, except that portion and defendant, with his wagon, peddled the included in brackets, which was refused, and product about the surrounding country. On such refusal is assigned as error: “When inor about December 27, 1893, defendant left dependent facts and circumstances are relied the house in which the parties had been liv- upon to identify the accused as the person ing, and traveled with his team south. Two committing the offense charged (and if todays after he left, the dead bodies of Charlie gether are regarded as sufficient basis for a and Dolph were found in the Sacramento presumption of his guilt to a moral certainty, river, near the house in which they had lived. yet] each material fact or circumstance necesCharlie had been shot, a portion of his head sary to complete such chain or series of inbeing blown off, and Dolph had received fatal dependent facts, tending to establish the wounds upon and about the head, apparently guilt, should be established to the same defrom an ax or a similar instrument. The

gree of certainty as the main fact which these door of their house was found locked, and independent circumstances, taken together, upon a platform in front of the house a piece tend to establish,-that is, each essential and of human skull was found, portions of brains, independent fact in the chain or series of and blood. From near the house to the river facts relied upon to establish the main fact there was a trail of blood, and evidence that must be established to a moral certainty and a heavy body had been dragged, leaving a beyond a reasonable doubt; and, if the jury mark on the surface. The blood along the should then have a reasonable doubt upon trail, and a pool of blood near the house, bore any single essential fact relied upon to comevidence of having been partially covered by plete the chain of circumstances, they cannot earth being shoveled upon it. The small pits convict the defendant as long as they enterleft in the ground, from which earth had tain such doubt." The instruction, as given, been taken to cover the blood, showed that embodied the law relating to circumstantial an instrument or tool had been used with a evidence, and the necessity of the establishprotuberance on the back of it. Upon open- ment of each independent fact essential to a ing the house, an ax was found within, which conviction beyond a reasonable doubt, with appeared as though washed since being used. great clearness. The sentence eliminated No bedding was found, although the dead tended to involve and cloud the instruction, were known to have had beds in the

without rendering it more favorable to the house. Defendant was arrested at Collins- defendant. If the sentence in brackets did ville, Solano county, on or about December 30, not conflict with the other portions of the in1893; and on his person and wigon a large struction, it at least detracted from their pernumber of articles were found, among which spicuity, and tended to draw the minds of were a shotgun, a gold watch and chain, the jurors from a careful analysis of the ina silver or nickel watch, a broken-handled dependent facts which it was the object of shovel, six pair of blankets, half a dozen suits the instruction to invoke. The case of Peoof clothes, two pair of gum boots, overalls, ple v. Phipps, 39 Cal. 333, cited by appellant, etc. The shovel, upon being returned to the fails to support his contention. In that case scene of the tragedy, and tested in the earth, the court below refused to instruct the jury was found to have a protuberance on its back that in case of a reasonable doubt they

men

should acquit. This court, in reversing the fect, to instruct them as to matters of fact, case, laid down the rule precisely in accord but rather as cautionary to the mode of with the instructions given in this case.

In

reaching such facts. Rogers, in his work this action of the court no error was involved. on Expert Testimony, at chapter 11, has col

Two errors are assigned upon the action lected and cited a large number of cases of the court in eliminating from instructions bearing upon this point. We need not refer asked and given for defendant upon expert to them at length, for the reason that what. testimony. In the first the jury were in- ever the conclusion reached might be the structed, in substance, that in considering ex- case at bar is not one calling for the applipert testimony they should "weigh it with all cation of the caution contended for by appelthe other evidence in the case, but are not

lant. bound to determine any fact in accordance Prof. Price was called as a witness for the with the opinion of such expert, if not con- prosecution, to prove that blood found upon vincing to the minds of the jury. The jury the clothing of defendant was that of a hushould weigh it carefully, and, if convincing, man being. There was nothing apparent in they have a right to act upon it, but they the character of the witness, his relation to have a right to consider the conditions under the parties, or his manner of testifying, calwhich the testimony was given.” The portion culated to arouse suspicion as to his capacity, omitted was as follows: "The facts upon skill, or impartiality. His testimony was which the opinion of the expert is based, and mainly as to facts, viz. the method resorted caution should be exercised by the jury in to for determining the character of the blood; accepting the opinion of an expert as a fact the means by which it was separated, and proven in the case.” In the other instruc- the corpuscles or globules measured; their tion, which was quite favorable to defendant size and shape; the size and shape of the as given, the court struck out the words, corpuscles found in the human family, in a "such evidence should therefore be received variety of animals, fishes, etc.,-showing that with great caution by the jury," and insert- the measurements indicated the corpuscles ed in lieu thereof as follows. “After consider- to come within the size found in the human ing all these things, and any other circum- family. This evidence was mainly demonstances in evidence, you are to give to such strative of well-established scientific facts, testimony such weight as you, in your judg- which, with proper appliances and instrument, think it entitled to," followed by the ments, and perhaps some skill, are open to all. words, "If convincing, and carrying with it Conceding, then, without deciding, that in a a belief in its truth, act upon it; if not, you proper case the cautionary instruction conhave a right to reject it." Grigsby v. Clear tended for by appellant should be given, Lake Water Co., 40 Cal. 396, is cited as au- there was nothing here to call for its expresthority for the contention that the court sion. should have instructed the jury that "such Objection was made to the introduction in evidence should be received with great cau- evidence of certain clothing and a great vation by the jury.” In the case cited the riety of other articles found upon the person court, speaking through Temple, J., spoke of of defendant, and upon his wagon, at the the propriety of having expert witnesses se- time of his arrest. They were properly idenlected by the court, of the necessity of their tified, and were properly admissible in evibeing impartial as well as learned and skill- dence. There was certainly some evidence ful, and dwelt upon the fact that such wit- tending to show that a portion of them, at nesses are often but adroit advocates of the least, were the property of the murdered theory upon which the party calling them men, and, under the peculiar circuinstances, relies, etc. That all of this, and much more constituted highly-damaging circumstances that might be said of expert testimony, in against the defendant. They were so intithe abstract, is true, cannot be denied. It mately connected with the case as to form a does not follow, however, that all that may part of the res gestae. be said by this court in discussing the facts The fifth error assigned relates to the tesor comparing different kinds of testimony, timony admitted in regard to the killing of and determining their value, is properly the man known as “Charlie." The witness question of law to be submitted to a jury. Jamison was questioned, and his testimony The reasons for a rule are not the rule it- admitted, showing blood stains upon the self. There is a wide difference of opinion platform in front of the house, a portion of to be found in the cases upon the question the skull and brains upon such platform, of the propriety of cautioning the jury and one lobe of a human brain, containing against the dangers and uncertainty of ex- shot, where it had fallen through a hole in pert testimony. Under our constitution (ar- the platform. As Charlie was shown to have ticle 6, § 19), “judges shall not charge juries had a large portion of his head blown off. with respect to matters of fact, but may these vestiges tended to point to the place of state the testimony and declare the law." his death. The contention of appellant is It may be plausibly argued that to direct a that defendant being charged with the murjury to look with caution upon a class of tes- der of Dolph, and not Charlie, it was error timony, which experience has demonstrated to admit testimony of the murder of another to be subject to uncertainties, is not, in ef- man.

It is true that, in a criminal prosecu

« ΠροηγούμενηΣυνέχεια »