People v. Ah Fat

By the Court, Niles, J.:

1. The affidavit for continuance on the ground of the absence of the witness Gilmer was defective in several particulars. It does not distinctly state the facts to which the absent witness would testify. If a mere reference to the reporter’s notes of Gilmer’s testimony could be received as supplying the place of such statement in the affidavit, this testimony clearly shows that a number of other persons were present and witnessed the occurrences to which the witness deposed. We must presume that it was apparent to the Court that the testimony of these persons was attainable, as most of them were present, and testified at the trial. Moreover, the affidavit entirely fails to show that the testimony of the absent witness could be procured at the next, or any succeeding term of the Court. We can perceive no abuse of the discretion of the Court in the refusal of a continuance under these circumstances.

2. There was no error in the instruction of the Court that if the jury believed from the evidence “that the defendant was present at the time of the killing, and unlawfully and with malice aforethought committed the deed himself, or aided and abetted in the killing, they should find him guilty."

The latter portion of the instruction is objected to upon the ground that, as the indictment charged the defendant with having been the actual perpetrator of the crime, it was error to instruct that he could be convicted upon mere proof that he was present, aiding and abetting the killing. This question was considered in the case of The People v. Outeveras, ante p.19, and was determined adversely to the position taken by the appellant.

3. The thirteenth instruction asked'-by the counsel for the defendant was properly refused. The jury would have been informed substantially that a defendant is not guilty of murder in the killing of a person who has already been mortally wounded by another—a doctrine -which ■ cannot be seriously contended for. Moreover, both this instruction and the fourteenth, asked by the defendant, were radically defective, because they ignored the possible guilt of,, the defendant as a present aider and abetter of the killing.

4. There was no error in the admission of evidence of the character of the witness Gilman for truth and varacity.

This evidence was authorized by the preceding testimony of the defendant’s witness, Dole. If this testimony had been directed to mere proof of contradictory statements of Gilman upon matters relevant to the issues being tried, the propriety of evidence of character to sustain Gilman’s testimony would have been, to say the least, questionable, although authorities may be found in support of its admissibility. (Greenleaf on Ev., Sec. 469, and note 4.) But Dole’s testimony went further than this. The conversation narrated by him was upon matters entirely irrelevant to the issues, and could have had no other effect than to induce the belief in the minds of rue jury that Gilman was a suborned witness and unworthy of credit. It was as effectual an attack upon his character for truth as if his reputation in this respect had been assailed by direct inquiries; and we can see no good reasons for allowing proof of good character in the latter case, that does not apply as well in the case before us.

Several minor points were made by the counsel for appellant, which we do not deem it necessary to consider at length. We find no error in the record which calls for a reversal.

Judgment and order affirmed.

Mr. Justice Rhodes did not express an opinion.