People v. Morine

Appellant Morine and one Smaker were jointly charged with the murder of Frank Deutche.

Upon the trial he offered no evidence in his own behalf, and the facts as established by the prosecution show that the defendants, on the evening of July 14, 1901, drove to an Indian ranchería in Lake County, where the deceased and a number of Indians resided. They took with them a keg of wine and distributed its contents to the Indians, who became •drunk. After getting them drunk.the defendants attempted to assault two of the women, when a young man interfered and was slightly wounded with a knife by the defendant, Smaker. The deceased also intervened, and he and Smaker grappled. While they were struggling, the appellant, Morine, went out and got an ax, with which he struck the deceased a severe blow on the forehead, knocking him down, and while he was so prostrate Smaker inflicted upon him the knife-wound from which he died. It is claimed that the evidence is insufficient to justify the verdict.

This point counsel does not particularly press, and expressly declines to discuss in his brief, so we are not afforded the benefit of his views on the subject.

Our own examination satisfies us that there is no merit in it.

While the evidence shows that the fatal wound was not inflicted by appellant, still it does show that he participated in the encounter between his co-defendant and the deceased, and actually aided and abetted the former in the conflict in which deceased was killed.

The evidence thus brought him clearly within the law (Pen. Code, see. 31) which provides that “all persons concerned in the commission of a crime, . . . whether they directly commit the act ... or aid and abet in its commission, are principals in any crime so committed,” and being so brought in, the verdict of the jury was proper.

It is further contended by appellant that error was committed by the lower court in permitting certain witnesses to/ "testify, over his objection, through an interpreter.

These witnesses were Indians, who claimed to be unable to •talk English. The court concluded upon examination that

Upon application for the appointment of an interpreter the court, under section 1884 of the Code of Civil Procedure, is vested with discretion in determining whether it should he granted or not, and an examination of the record in this behalf shows that it was properly exercised.

It. is next insisted that the court erred in the admission of testimony over appellant’s objections. One Leon Prank, a witness on the part of the people, testified to the fact that the day after the homicide Smaker purchased at his store a pocketknife. Some other witnesses were permitted to testify whether in their opinion the wound on the forehead of deceased could have been inflicted with an ax. It is upon the admission of this testimony that the alleged errors are predicated.

As to the testimony of the witness Prank, if it was not admissible under the authority of People v. Garcia, 63 Cal. 19 , yet its admission was harmless error.

While it is not very clear why the evidence was offered at all, it may be assumed, as the only reasonable explanation, that it was for the purpose of inferentially proving that the knife with which deceased was killed belonged to Smaker, because the next day he purchased another. Not clearly a logical inference, but one which could not injure the defendant, even if the jury made it, because there never was any conflict or dispute in the evidence as to Smaker inflicting the fatal wound with the knife. Not only this, but the knife with which the blow was inflicted was produced on the trial and identified as Smaker’s, and the testimony of the physician shows that when he made the autopsy on the body of the deceased he found in the wound a piece of broken knife-blade that fitted the broken blade in the knife identified as the one proven to have been Smaker's and in his possession on the night of the homicide. All this evidence was before the jury when the witness Prank testified, and at no stage of the case was it contradicted.

Under these circumstances it cannot be said that the admission of Prank’s testimony was prejudicial error, when the apparent purpose of its introduction was to possibly raise an illogical inference to support an undisputed fact.

The same may be said of the testimony of the witnesses

We do not think the answers, even if they could be construed as tending to express an opinion, can avail the defendant as prejudicial error. The evidence in the case, when these witnesses testified, showed that the wound in dispute had been inflicted by defendant with an ax, and at no time was there any evidence introduced to the contrary.

Error is also assigned because the trial court refused to give an instruction proposed by defendant to the effect that the jury should distrust the whole testimony of any witness who had willfully deceived the court as to her ability to speak English, and thereby caused the court to direct that her testimony be given through an interpreter.

The record disclosed no evidence upon which such an instruction could be predicated, and hence was properly refused.

The court instructed the jury that, “If you believe from the evidence, beyond a reasonable doubt, that the defendant George Collier Morine killed or aided or abetted Jack Smaker

For the foregoing reasons the judgment and order are affirmed.

McFarland, J., Angellotti, J., Van Dyke, J., and Shaw, J., concurred.