People v. Neary , 104 Cal. 373 ( 1894 )

McFarland, J.

Appellant was charged by information with the murder of his wife, Catherine Neary, and was convicted of murder in the second degree. He appeals from the judgment, and from an order denying his motion for a new trial.

1. Appellant objected to being required to plead, upon the ground that he had not been arraigned, because there was not read to him at the time of his alleged arraignment a list of witnesses. Assuming that the point sought to be presented can be raised upon such an objection without moving to set aside the information, still, as there is no requirement that the names of witnesses shall be indorsed upon an information — section 943 of the Penal Code applying only to indictments —the “list of witnesses” mentioned in section 988 can apply only to an arraignment in a case where there has been an indictment. (See People v. Sherman (Cal., April 11, 1893), 32 Pac. Rep. 879.)

2. The court did not err in denying appellant’s challenge to the panel on the alleged ground of the disqualification of the officer who summoned the jurors. Waiving all other questions, the evidence on the point was not of such a character as to give us warrant to declare that the court erred in holding it insufficient to establish the disqualification of the officer.

3. The court did not err in overruling appellant’s objection to the testimony of the coroner as to a certain statement made to him by appellant touching the cause of his wife’s death. In the first place the statement was not a confession, and therefore not subject to the rule that a confession must first be shown to have been made freely and voluntarily, etc.; and, in the second place, it was the same statement that was made to several other persons, and does seem to have been made freely and voluntarily.

4. We see no prejudicial error committed by the court in giving or refusing instructions to the jury.

The court had the right to tell the jury that there had been evidence offered “tending” to show ill-will between appellant and deceased, and threats by the former against the latter, for there certainly was some evidence that had that tendency. Moreover, the court made the statement clearly for the purpose of warning the jury against, attaching much importance to such evidence, and immediately proceeded to impress that warning in language that occupies nearly two pages of the printed transcript. Evidently appellant was not prejudiced by this part of the court’s charge.

We do not think that the part of the charge pointed out in point 5 of appellant’s original points and authorities can be construed as telling the jury that appellant could be convicted solely upon his own admissions.

Appellant objects to a certain part of the charge in which the word “ demonstrate” is used. This part of the charge was also intended to be, and was, favorable to the appellant. The court, having stated the rule laid down in section 1105 of the Penal Code, that the commission of the homicide by appellant being shown, the burden was upon him of proving circumstances which would mitigate, justify, or excuse, used this language: “ But you will observe in this connection that the burden of proof thus cast upon defendant is not used in any literal sense; it is not necessary that defendant shall in this matter, any more than in any other, prove affirmatively that he did not intend such consequences. It is sufficient that he demonstrate to your understanding by testimony given, by inferences correctly and properly drawn from the whole testimony in the case, that, notwithstanding the burden so cast upon him, there still exists in your mind a reasonable doubt of his guilt. In the trial of every criminal case the law, at the outset, clothes the defendant with the presumption of innocence until his guilt is proven heyond a reasonable doubt, and this presumption attaches at every stage of the case and to every fact essential to a conviction.” Moreover, at the request of appellant, the court gave other instructions upon this subject, and, among others, the following: “The commission of homicide by the defendant, if proved, does not cast on him the burden of proving circumstances of mitigation or excuse by a preponderance of evidence. If the evidence introduced, either on the part of the prosecution or the defense, .creates in the minds of the jury a reasonable doubt as to whether the act was justifiable or excusable, or whether it was caused accidently or feloniously, you should acquit the defendant.” These instructions, notwithstanding the unhappy use of the word “demonstrate,” state the law upon the point involved as favorably to appellant as could be reasonably expected, and go fully as far as People v. Bushton, 80 Cal. 160.

We see no errors in the refusal of the few instructions asked by appellant which were refused. They were covered by the many instructions given. Neither were there any errors in the few amendments made by the court to the instructions asked. The court gave more than thirty instructions asked by appellant, and the charge of the court of its own motion was quite lengthy; and all the instructions taken together stated the law not only fairly, but most favorably to appellant.

5. The only serious question in the case is whether the evidence was sufficient to justify the verdict, or rather, whether it should he held here that the court below erred in not granting a new trial upon the ground of the insufficiency of the evidence to justify the verdict.

At the time the deceased received the wound which caused her death there was no one present other than the deceased and the appellant. A few moments before it occurred their little daughter had left them seated at a small table in a room of their house, at which they were eating, and had gone out to the well for some water. "When she returned she saw the deceased lying on the floor and the appellant was taking her up. She died immediately. Neighbors soon came in, and the explanation of his wife’s death which the appellant then gave, and which he always afterwards gave, to others (he did not testify at the trial), was, substantially, that the deceased and himself had been out together somewhere, and had just returned home and sat down to the table to eat supper; that a little altercation had taken place between them; that they had contradicted each other about some matters of difference; that he said “that is not so,” and threw a butcher-knife which he had in his hand upon the table, and that the knife got out of his hand and glanced or bounded from the table and struck the deceased, making the wound which caused her death. It was amply shown that his character was good. The relations between him and the deceased had not been pleasant, although the trend of the testimony was to the point that she was of an unamiable and irritable disposition and did most of the quarreling — he generally remaining silent when she found fault with him, at least when in the presence of others. However, he complained to a friend of the difficulty he had in getting along with her.

It is contended strenuously by counsel for appellant that the evidence was not inconsistent with the theory of his innocence, and that, therefore, he should have been acquitted. But there were many things to be considered by the jury in determining whether or not his account of the homicide was true. His story, though not entirely impossible, was not probable. The knife, which entered the abdomen, made an incision into the person of the deceased nine inches long — the entire length of the blade of the knife. It passed through the skin, through fatty tissue from one and a half to two inches thick, through the muscles of the abdomen, and through the intestines to the muscles of the back. Nothing appears in the record as to the sharpness of the knife, but the jury saw it. The character and direction of the wound; the relative positions of the parties when last seen; the disposition made of the knife after the occurrence; the prior feelings of the parties towards each other; the appearance and manner of the witnesses — ’these and many other things, which cannot be pictured here as they were in the trial court, were legitimate matters to be considered by the jury in coming to their conclusion. Moreover, weight must be given to the denial of a new trial by the judge of the trial court, not only because he had the advantage of observing the witnesses and seeing the whole trial, but because it is his province and duty to pass, in the first instance, upon questions involving the sufficiency of evidence. After carefully examining the whole case and giving due weight to every consideration urged by counsel for appellant we do not feel it our duty to disturb the denial of a new trial by the court below.

Judgment and order affirmed. •

Fitzgerald, J., Harrison, J., Garotjtte, J., and Beatty, C. J., concurred.