The record-union., 1891-01-18

Jury could be obtained. 1t should not be al
| lowed 10 rest upon the mere opinion OF per-
| sons, however numerous, that jury could
| not be procured.
The conclusion we have reached on this
/ point Is decisive of this appeal, but there are
other questions presented which may arise
ON another trial, which we feel it our duty to
decide.
! The prosecution was allowed, over the OBJ
/ lection of the defendant, to prove in rebuttal
! that the deceased was not in the habit of car
/ rying arms; that various occasions he had
1 so stated; and, that ON the morning of the
shooting he had refused to go armed when it
was suggested that he had better do so We
| have looked in the transcript in vain for any
evidence on the part of the defendant which
could justify or call for any such evidence in
| rebuttal. There was evidence tending to show
! that the defendant believed the deceased to
/ have been armed at the time he shot him.
/ This rendered 1t competent for the prosecu-
| ton to prove that, rs q matter OF fact he was
/ not armed at that time but it did not justify
/ the proof rs to his general habit with respect
| to the carrying of weapons or his declarations
/ with reference to the matter, not made i'll the
4 presence of the defendant and not shown to
! have been communicated to him prior to the
/ shooting There was no evidence on the part
! of the defendant going TO show that the char
| acter of the deceased for peace and quietness
was bad therefore the evidence cannot be jus
| titled on the ground that II tended 10 show his
| good character in these respects. Evidence to
sustain his character could not be heard un-
less it had been attacked people VS.. Anderson,
| SO Cal. 701l, and if it could il would not have
| been competent TO prove 1t by evidence that
he was not in the habit of carrying arms, or
| On cross-eXamination OF one or more OF the
witnesses for the prosecution the defendant
asked whether the deceased had not had
| quarrels with several persons named, and it
! was admitted that the deceased had so stated.
There was no objection to this evidence by the
/ prosecution. 1t was clearly incompetent. and
| If il had been objected TO would no doubt have
! been excluded. 1t is claimed that this evil
| dence on the part of the defense rendered the
/ aforementioned proof competent. We do not
| think so. In the first place the evidence, on
| the part OF the defense was incompetent, as
| we have said, but if it were not we do not see
| how the evidence offered in rebuttal that the
| deceased was not in the habit of going armed
| tended to rebut the proof that he had stated TO
some one that he had quarrelled with certain
| persons.
There was also evidence admitted in behalf
| OF the prosecution OF conversations between
! the Witness Mrs. Willis, and third parties, not
| in the presence of the defendant, and with
which he was in no way connected This evil
| dence should have been excluded. 1t was adj
mitted by the court below, upon the assurance
of counsel for the defendant, that it would be
brought home to the defendant, which was
not DONE The same may be said of the testi-
| mony of the witness, Glennon, of converse
tions between Mrs. Willis and himself. The
prosecution having failed to connect the de-
fendant with the Subject-matter of the conyer-
sation, the defendant moved to strike out the
evidence. The motion was denied This was
error. The evidence should have been stricken
out. The same witness, Giennon, was also al
| lowed to testify to q conversation with the de-
fendant. The ill-teeing which resulted in the
death of Mr.. Smith, at the hands of the de-
| fendant, grew out of an article published in d
newspaper of which the deceased was proprie-
tor. The conversation testified to by Glennon
was with reference to this article and tended
| to show that the defendant believed the wit
ness was the author of the article and abused
him and threatened to get even with him; that
| in the same connection he made abusive re-
| marks about one Mrs. Willis and that, subse-
| quentiy, during the same day, he returned and
| stated To Glcnnon that he had learned that he
| was not the author of the article, and apollo
! gized for the language he had used. This evil
dence was well calculated to prejudice the jury
| against the defendant and was immaterial and
! Incompetent. If it had been shown to have
| been communicated to the deceased it might
! have tended, in some small degree, to excuse
his conduct toward the defendant, at the time
of the shooting but it was not shown that it
| was communicated to him. 1t could hardly
| be claimed that the threat of the defendant to
| "get even" with Glennon was evidence tend
! ing to prove that he killed the deceased or the
! motive of the killing. And if this were not SO
! that part of the conversation relating to Mrs
| Willis, and which the defendant moved
! specially TO strike out was clearly incompe-
| tent.
| 1t is contended by the appellant that the
| court below excluded evidence offered by him
| to the effect that he was told before the shoot
! ing that the deceased was dangerous charac-
! ter and that he had better beware of him, and
| that this error. The defendant claimed,
and introduced evidence tending to show that
in firing the shot which caused the death of
deceased he acted in self defense. In connec-
ton with the evidence as to what occurred at
the time of the shooting, ii would no doubt
have been competent for the defendant to
show that before the shooting he was informed
that the deceased was a dangerous man.
State vs. Lull, As VT 5S6.)
Where defendant claims to act in self
defense, any evidence tending to show that he
acted as q reasonably prudent man would
have acted under the circumstances is COM
petent. People VS.. Iams, 81 Cal. 119, 13o;
People VS.. Westlake, 90 Cal. 3o7)
| In this case the evidence tended to show
that the defendant was attacked by the de-
| ceased, and, in the rencounter that followed,
shot and fatally wounded him. In judging
whether the defendant acted with reasonable
prudence and caution, and in the honest be-
! that Of
! death or great bodily injury, il was proper
| that the jury should know, if such were the
! fact, that he had been informed beforehand
| that the man that attacked him was danger
Gus character, and so believed at the time as
| such information and belief might reasonably
! influence the conduct of a prudent man under
such circumstances. Such evidence docs not
rest upon the necessity of showing that the
communication was brought home to the de-
| ceased counsel for respondent contend. The
sole object of it is to show the state of mind of
the defendant at the time of the shooting, and
| for this purpose ii was proper and should have
! been admitted. There may be some doubt
whether the questions put to the witnesses
| We're such, in form, as TO raise the point but
| the qustion has been presented on its merits
| here. The form of the questions were not ob-
| jected TO in the court below, nor are they here.
! In the effort to prove certain state of facts
| either the question pat to the witness should
! disclose clearly what it is proposed to prove
| or q proposition to prove certain facts should
| be submitted to the court below and refused
] in order to present the question in this court.
| Neither was done here and we are led TO be-
ant on the same subject, that the communion
| ton to the defendant was not of the kind
| claimed by the appellant. 1t certainly was
not competent to show that the defendant
| was warned TO ''look out" for the deceased or
| the like. This would be quite n different
thing from proving that the deceased was n
dangerous man and one who might be eX-
pected to go To extreme measures if he should
attack the defendant. For these reasons if
no other error appeared in the record the
cause would not be reversed on this ground
The rulings of the court in excluding certain
questions asked the witness Mrs. Smith, widow
| of the deceased, on examination with
reference to certain articles appearing in the
paper formerly owned by her husband after
| the first trial of this case, and excluding said
articles when offered in evidence, were not er-
roneOuS.
There was no error in allowing private coun-
sci, employed TO assist the District Attorney
in the prosecution of the case, to open and
close the argument in the case. The court be-
low must be left TO determine upon the pro-
priety OF allowing such course to be taken,
and so long as private counsel conduct the
prosecution properly we see no reason for
holding that the entire argument may not be
made by them with the consent and acques-
cence of the District Attorney and the trial
court.
The court below gave the following instruc-
ton, which is complained of by the appellant:
''In this case the homicide having been eStdb-
tiShed bg The State, unless the testimony of the
State proves that the offense was manslaugh-
ter, or unless such testimony tends to show
that the homicide was eXcusable or justifiatble
the burden of the proof is upon the defendant
to show by q lrcpo7,tteTGncc Of eUidelce that tho
| crime was only manslaughter was justfi-
able"
This instruction was erroneous because the
homicide being established by the State it cast
upon the defendant the burden of proving bg
q prepoHderGace Of The eridence that the killing
was juStifiable or only manslaughter people
V. Bushton, so Cal. 160; People V. Elliot, III.