People v. Teshara , 141 Cal. 633 ( 1904 )

SHAW, J.

The defendant appeals from a judgment of conviction of murder in the second degree, and from an order denying his motion for a new trial. The error assigned is, that upon the trial the court allowed the prosecution in the cross-examination of the defendant to ask questions not relating to matter testified to by him upon the examination in chief.

There was no evidence for the prosecution showing the circumstances of the homicide other than that contained in the dying declaration of the deceased, Garrett D. Loucks. He was a saloon-keeper in Santa Cruz. According to this declaration, as illustrated by a map of the premises introduced in evidence, the defendant and one Manuel Amaya came into his saloon on the evening of February 10, 1900, and Teshara asked Loucks to play a game of pedro. They sat down in the cardroom (which was immediately behind the front room, or the barroom, as it is called) and played two games. Teshara then asked Amaya to play, but Amaya said he did not want to do so, and about that time Patrick Morrisey came into the saloon, and asked Teshara to take a drink with him. The two each drank, Morrisey left, and Loucks and Teshara played two more games and part of another, whereupon Amaya, who was sitting on a lounge behind Loucks, struck him over the head with something several times, and ran for the front door, the de ceased following him, and Teshara following behind the deceased. When the deceased had reached the middle of the front room, Amaya shot him in the breast, and Teshara, being still behind Loueks, called out: “Kill him, kill him, don’t let him get away.” Amaya then fired another shot, hitting Loueks in the abdomen, and he fell. Shortly afterwards Loueks was found in the saloon badly wounded. Two days afterwards he died of the wounds. There was other testimony to the effect that Teshara and Amaya had been seen together on that evening shortly before the homicide, going toward the saloon. Morrisey also testified that he entered the saloon and treated Teshara to a drink, as stated in the dying declaration.

In his examination in chief the defendant testified that he had lived in Santa Cruz the greater part of his life; that he knew Patrick Morrisey, and remembered that Morrisey came into Loueks’s saloon on the night of February 10, 1900; that he had a drink with Morrisey on that occasion; that Morrisey left the saloon; that two or three minutes afterwards the defendant himself left the saloon and went to bed, leaving Loueks standing behind the bar in the saloon, alive, uninjured, and well, and that he did not again see Loueks that night. It will be observed that the defendant gave no testimony whatever relating to any occurrence, in the saloon or elsewhere, before the entrance of Morrisey; and that his relation of the facts occurring at and subsequent to Morrisey’s entrance correspond exactly with Morrisey’s statements during his presence, and differed entirely from the statements in the dying declaration as to what took place after Morrisey’s departure.

Upon cross-examination the district attorney began by asking questions relating to occurrences in the saloon prior to Morrisey’s entrance, to which objections were sustained by the court. The district attorney then said: “I think I ought to have a chance to show how he arrived at the saloon and who was with him if any one,” to which the court said, “I think you will.” A number of questions were then asked, in answer to which the defendant testified that Patrick Morrisey was in the saloon for a while; that after the defendant arrived at the saloon he went into the cardroom and found deceased seated at a table engaged in a game of solitaire; that they greeted each other, and thereupon the deceased proposed a game of pedro with him. Many of the questions were objected to, but two questions were asked which elicited the fact that Manuel Amaya was in the saloon with the defendant and went into the eardroom with him, and to these questions there was no objection, nor was there any motion to strike out the answers. The statement as to what took place after he went into the eardroom was given in answer to the question: “What did you do after you got into the eardroom?” During the answer to this question one or two minor questions were interjected, but the witness continued with his answer until he made the statement that the deceased had proposed a game of pedro. Thereupon the court interrupted, saying: “Strike out the last answer; ruling is reversed and the objection is sustained. You will have to confine yourself to matters brought out on direct examination, the cross-examination must be confined to those matters and nothing else.” Thereafter the cross-examination proceeded at considerable length, during all of which the district attorney was rigidly limited to facts occurring at and after the time when Morrisey entered the saloon.

Many of the questions relating to occurrences when Morrisey was there, and afterwards were vigorously objected to by the defendant’s counsel. We think there is manifestly no error in these questions. The defendant had attempted in his direct examination to state what occurred from the time Morrisey entered until he himself left the saloon, and his statements as to facts occurring after Morrisey left impliedly contradicted the dying declaration of the deceased. It was proper cross-examination for the prosecution to ask him concerning other matters that occurred during the time as to which he testified, and which he did not mention in his direct examination.-

With respect to the facts elicited at the beginning of the cross-examination relating to matters occurring before the entrance of Morrisey, we are of the opinion that whatever there was of the evidence thus elicited that was injurious to the defendant was cured by the voluntary testimony of the defendant in the subsequent cross-examination. As to the evidence showing that a card game was proposed by Loucks, we do not perceive that it was harmful or material. In his cross-examination relating to the occurrences subsequent to Morrisey’s entrance, the defendant testified that he was playing the last hand in a card-game at a table in the cardroom at the time Morrisey entered. These facts being elicited, it was not particularly important to inquire how long he had previously been engaged in the game, nor who proposed it. With regard to the presence of Amaya in the room, the defendant in his subsequent examination volunteered the statement that Amaya was there prior to the entrance of Morrisey. The district attorney had asked him some questions relating to the position of the defendant at the time Morrisey entered the room. Thereupon this question was asked: “Q. Where was Manuel Amaya at this timet” An objection to this question was properly overruled, as the time referred to was the time of Morrisey’s entrance. The answer was: “Manuel Amaya was seated in a chair on the opposite side of the table. ” The witness was then asked: “This has reference to the immediate time that Morrisey came in?” to which he answered: “Why, Amaya was not there at all at the time Patrick Morrisey came in, there was no one there outside of Mr. Loucks and I, Mr. Morrisey made the third party.” Neither the court nor counsel could foresee that the witness would misunderstand the question with reference to the whereabouts of Amaya. There was no motion to strike out the answer, and hence it remained as part of the testimony, and fully disclosed to the jury the fact that Manuel Amaya had been in the saloon prior to the entrance of Patrick Morrisey. All this testimony, of course, to some extent corroborated the dying declaration, but in so far as it was objected to we do not think it transcended the limits of cross-examination.

We have discussed the case so far upon the theory that any inquiry as to the occurrences in the saloon prior to Morrisey’s entrance would not have been proper cross-examination. We are of the opinion, however, that the limits of proper cross-examination were not exceeded, even if the objections made should be considered as properly applying to all the questions with respect to such prior occurrences which were answered by the defendant, and even if the facts disclosed were material.

The statement of the deceased showed that the defendant and Amaya had entered the saloon together that evening and had remained there until after Morrisey departed; that Amaya, in the presence of Teshara, then struck and shot the deceased; that Teshara encouraged Amaya to kill the de ceased, whereupon Amaya shot again, and that when Teshara left the saloon the deceased had received his death-wound and had fallen to the floor. Teshara’s direct testimony showed, in effect, that he did nothing in the saloon except to drink with Morrisey, and that he Avent a>vay a few minutes . afterward, leaving Louclcs in the saloon alone, alive, well, and uninjured, standing behind the bar. It was equivalent to a denial of all the facts stated by Loucks as occurring after the departure of Morrisey, and therefore to a denial of any part in, or knowledge of, the killing, and of any participation with Amaya in the offense. A defendant cannot, by testifying to a state of things contrary to and inconsistent with the evidence of the prosecution, thus indirectly denying the testimony against him, but without testifying expressly with relation to the same facts, limit the cross-examination to the precise facts concerning which he testifies. He can be cross-examined with respect to facts or denials which are necessarily implied from the testimony in chief, as well as with respect to facts which he expressly states. And he cannot, by beginning his narrative at a particular moment of the occurrence, limit the cross-examination to the same exact period. The cross-examination may extend to the whole transaction, of which he gives a part, and which occurred in immediate connection with the part he relates, shortly before or after, and in which he must' have been concerned, or of which he may be reasonably supposed to have had knowledge. Therefore it was proper to ask him with respect to things which occurred in the saloon that evening after he entered and in his presence or hearing, and also concerning the persons who were with him at and after the time of his arrival. In substance and effect he had denied that Amaya was in the saloon at the time he left. It was proper to show, if possible, on his cross-examination, that Amaya and he came there in company and remained there together for a considerable part of the evening preceding the time when he chose to begin his narrative of events. It would tend to some extent to shoAv that Amaya was there after Morrisey departed, and to contradict to that extent his implied denial of Amaya’s presence there at all after that time. Also, it was proper to prove the previous games of cards to impeach his implied denial that any games were played immediately preceding his own departure. Both Loucks and Morrisey said that Morrisey when he came in had interrupted the game of cards at which Loucks and defendant were engaged. If the games had been going on for some time before the interruption, it would furnish some slight ground for an inference that the play was resumed after Morrisey left.

No other questions are presented upon the record.

It is therefore ordered that the judgment and order appealed from be affirmed.

Angellotti, J., Lorigan, J., Henshaw, J., Van Dyke, J., and Beatty, C. J., concurred.