People v. Glover

The defendant was convicted of murder in the first degree and sentenced to death, and from the judgment and order denying his motion for a new trial appeals.

The homicide consisted in the killing of one Frederick Nierhoff, at his home in Placer County, on the afternoon of June 11, 1902. The defendant was engaged with the consent of her father, the deceased, to be married to his daughter,— Agnes Nierhoff,—a young girl fourteen years of age, and the claim of the prosecution was, that the killing upon the part of defendant was prompted by revenge for having been ordered off his premises, the day before, by the deceased.

On behalf of the defendant it was insisted that the killing was done in necessary self-defense.

In the briefs no point is made as to the sufficiency of the evidence to sustain the verdict, but it is insisted that the court erred in modifying certain instructions asked by the defendant ; that it misdirected the jury in certain other instructions given of its own motion, and complaint is made, also, of rulings of the court in the admission and rejection of evidence.

Upon the instructions:—

1. The defendant proffered many instructions on the plea of self-defense, premised generally with the statement that, “the defendant in this case admits the killing and excuses himself on the ground of self-defense.”

The court, after reading this preliminary statement to the jury, and immediately before giving the instructions tendered, said: “I am now about to give you a number of instructions based upon this claim of the defendant that he acted in self-defense.”

It is insisted that the use of the word “claim” was prejudicial to the defendant.

In the case of People v. Iams, 57 Cal. 118 , it will be observed, in that part of the instructions which was given on this plea of self-defense, the lower court used the term “claim” as it was employed in the instruction complained of in the case at bar.

That portion of the instruction in the lams case, in which this word “claim” is found has, at least since that case was decided, been almost universally given, in its entirety, as an instruction in homicide cases, where the plea of self-defense has been interposed, and notwithstanding the successive appeals to this court in such cases, our attention is not called to any case in this court in which the correctness of its use has even been questioned.

In the limited criticism which counsel devotes to the instruction, he neither advances good reasons against the use of the term employed, nor suggests, or indicates, any language which in his judgment, would be more appropriate, or less objectionable, nor has he referred us to any authority, in the wide range of criminal law, where a similar instruction has either been censured or disapproved.

2. The next ground of complaint arises from the modification by the court of two instructions requested by the defendant, on the law of self-defense. Only one of these need be referred to at length, in order to illustrate the point common to both. The court instructed the jury: “A person may repel force by force in defense of person, property, or life, against one who manifestly intends or endeavors, by violence

The instructions as given informed the jury, that it was not enough that there should exist in the mind of the defendant a belief that he was in actual peril, but that the indications and circumstances as they presented themselves when he acted upon them, must have been such as to have furnished sufficient cause for such belief, and that the test to be applied by the jury, in determining whether these indications of peril were such as to furnish sufficient cause for the belief, was not whether defendant so believed therefrom, but whether a reasonable man, placed in the situation of the defendant, would have been justified from such appearances in so believing.

The court doubtless considered, and there was ample room for it, that the language in the proffered instruction, 11 and if . he so believed reasonably, ’ ’ was susceptible of being construed by the jury to mean, that the actual belief of the defendant from the appearances of peril, as he viewed them, should exclusively govern their determination of whether he acted in self-defense or not, and for the purpose of obviating any misconception upon that point, inserting the words, “and had

A person may have a lively apprehension that he is in imminent danger, and believe that his apprehens.on is based on sufficient cause and supported by reasonable grounds; that such apprehension is reasonable and warranted from appearances as they present themselves to him. If, however, he acts on these appearances, he does so at his peril, because the law leaves it to no man to be the exclusive judge of the reasonableness of the appearances upon which he acts, but prescribes a standard of its own, which is, not only did the person acting on the appearances himself believe that he was in deadly peril, but would a reasonable man, situated as the defendant was, seeing what he saw, and knowing what he knew, be justified in believing himself in danger.

Recognizing the error into which the jury might fall, and with the correct rule of law in view, the court properly modified the instruction.

It is insisted that the court erred in giving instructions numbers 24, 25, and 26. It is not insisted that they declare incorrect principles of law, but it is claimed that the first two are too broad, and that there was no evidence in the case to justify the last.

Instruction number 24 is a concise statement of the language of the Penal Code (sec. 197, subd. 3), and specifies the conditions under which the right of self-defense can be invoked. It is invariably given where the right of self-defense is asserted. Instruction number 25 is an excerpt from the language of the court in People v. Hecker, 109 Cal. 462 , and is also applicable under the plea of self-defense.

Instruction number 26 is also an excerpt from the same case, and under it the jury were informed that the plea of self-defense is not available where a person seeks a quarrel, with the design of creating a real, or apparent, necessity for

Nor are we prepared to say that there was no evidence to which the instruction could be addressed. There was evidence in the case tending to show that defendant had secreted himself in the house of deceased, with the expressed intention (undisclosed to the .deceased) of killing him; that while deceased, and the brother of defendant, were conversing at the barn near the house, the defendant left the house, taking with him a rifle belonging to the deceased, which he had found therein; that he proceeded towards the' deceased with the weapon held in position for action; that while no word was spoken by him as he approached, yet his appearance and actions were sufficient to call forth an exclamation from defendant’s brother and the deceased, directed to him, “not to shoot”; that while he was approaching, according to his own story, and without his having uttered a word to deceased, or made any hostile demonstration, or intending to do so, the deceased rushed towards him, picking up a club on his way, and endeavored to take the rifle from him, and tried to strike him with the club, when, in self-defense, he fired the fatal shot.

In the face of the evidence, it was the exclusive province of the jury to say, whether defendant’s approach towards the deceased was with the innocent intention which he avowed,

Whenever an assault is brought upon a person by his own procurement, or under an appearance of hostility which he himself creates, with a view of having his adversary act upon it, and he so acts and is killed, the plea of self-defense under such circumstances is unavailing.

Waiving all other considerations concerning this challenged instruction, it was, we think, properly given to the jury under the evidence referred to.

4. The legal accuracy of instruction number 28 is questioned. It reads: “A defendant who justifies under a claim of self-defense must himself have been without default before he can claim the full protection of the law. In such case, if you find from the evidence that the defendant was without fault, and while so without fault, was placed by the deceased under circumstances sufficient to excite the fears of a reasonable man that the deceased designed to commit a felony or some great bodily injury upon him, and as to afford grounds for a reasonable belief that there was imminent danger of the accomplishment of such design, he was justified in acting under such fears.”

Particular exception is taken to the use of the language, “must himself have been without default before he can claim the full protection of the law.” This, in counsel’s estimation, is also entirely too broad a statement of the principle it contains. No question is made, or can be made, of its legal accuracy. (People v. Westlake, 62 Cal. 307 .) It is only the amplitude of this statement that is complained of. Counsel suggests that the jury, under it, might feel warranted in taking into consideration other acts of the defendant, aside from the circumstances of the killing itself. The broadness

5. Appellant insists that the court erred in instructing the jury that, “whether the defendant does, or does not, act with malice aforethought is always to be inferred from the circumstances surrounding the case.”

Standing alone, however, we perceive no ground for criticism. Malice may always be inferred from the circumstances in the case—the evidence presented and considered by the jury. If there are other additional legal rules for determining it the defendant cannot complain because the jury were restricted to one of such rules. The restriction in this regard was favorable to him, and he has no reason to complain of it.

Exception is taken to the language of some of the other instructions in the case, but, as they 'are not supported in the briefs by either argument or authority,—simply referred to,—we have not called particular attention to them. In view, however, of the gravity of the case, we have examined them and find them correct.

The court, upon its own motion, fully and fairly instructed the jury upon all matters necessary for their consideration, and gave every instruction requested by the defendant— which constituted half of the instructions given—as presented, with the single modification in the two instances complained of. As far as the instructions given in the case are concerned, taken as a whole, they are correct and fair, and defendant has no ground of complaint on their account.

Certain errors of law are .insisted on, and we will now consider them.

6. Agnes Nierhoff, daughter of deceased, the girl to whom defendant was engaged, was a witness for the prosecution. She and defendant had been driving on the Sunday prior to the homicide. On redirect examination by the prosecution, over defendant’s objection, she testified that, while out driving, at defendant’s suggestion that he wished to get his mother’s picture and a horse-collar, they drove to the ranch of Oscar Glover, the brother of defendant. This ruling, if error, was harmless. The testimony had no bearing whatever on the case, and there is no pretense that at this time there was any ill-feeling between defendant and deceased. Aside

7. This same witness—an eye-witness to the tragedy—upon the trial and on behalf of the prosecution, testified against the defendant; her testimony tended to show that the killing of her father by the defendant was unprovoked, deliberate, and premeditated.

On cross-examination the counsel for defendant confronted her with a statement, made immediately after the homicide, contradictory of her statement against him on the trial, which previous statement, if true, was exculpatory of the defendant. She admitted on cross-examination that she made such statement. On redirect examination, over defendant’s objection, the witness was permitted to testify that these prior statements were untrue. Counsel suggests that the prosecution should have been restricted to proving the untruth of the statement by competent and relevant testimony, and not by the sweeping statement of the witness. But the testimony of the witness was both competent and relevant on this point. She best of all knew which of her statements was true. She had given the one and was confronted by the other; they were inconsistent, and she had a right to explain, under section 2052 of the Code of Civil Procedure, her former statements. If, in the explanation, she declared that her former statements were untrue, this certainly was an explanation, as far as it went, and no reasonable objection could be made to this method of explaining it.

Counsel’s objection, too, was, that it was not cross-examination, irrelevant, and immaterial. It was certainly proper redirect examination because the contradictory statement was brought out by counsel for defendant on cross-examination, and it is material and relevant in all trials to properly show the credibility, or want of credibility, of a witness, and this end is attained in some degree by the declaration of the witness herself that she has made prior false or contradictory statements on the same subject.

8. This same witness was asked on redirect examination why she had not told her father and one Dr. Dozier, who visited him on the premises, and with whom she conversed, of the presence of the defendant in the house, and of his declared

We have thus far adverted particularly to such assignments of error as we deem worthy of special mention.

Several others are relied upon, but we do not think they call for any extended consideration. The claim that there was not sufficient proof to warrant the admission of the dying declaration of deceased in evidence is not tenable. The proof is all one way, and conclusive on the point, that it was made by the deceased in the full belief of impending death. Nor can any exception be taken to the statement by the deceased in his dictated dying declaration that, when defendant approached from the house, deceased and defendant’s brother Oscar were talking about a horse-collar. The testimony of all "parties shows this to have been the fact, and besides, as a fact and circumstance immediately attending the homicide, it was part of the res gestee. There was no prejudicial error in permitting the prosecution to ask the witness Oscar Glover his weight. Even conceding, as defendant contends, that it was for the purpose of proving that he was a large man physically, and able to have intervened and stopped the killing of deceased, yet this was all apparent to the jury without inquiry. They saw the witness, and could judge for themselves of his physical proportions. He did not intervene because, he testified in effect, that he did not think there was going to be any trouble until it was all over. It was not error for the court to refuse to allow the witness Charles Glover to

This embraces all the objections which are made to the rulings of the court, and, in our judgment, none of them are well taken.

While counsel for defendant in their briefs disclaim any intention of questioning the sufficiency of the- evidence to warrant the guilt of the accused, they contend that it is not sufficient to warrant the infliction of the death penalty, and in this regard it is insisted that the jury, actuated by prejudice, rendered a verdict fixing a higher degree of crime than the facts, susceptible of belief, justified. We find no justification in the record for this claim of counsel. There is nothing in the record tending to show that the jury were in any respect actuated by prejudice against the defendant. We cannot invade the province of the jury and substitute our judgment for theirs, as to the sufficiency of their finding on controverted facts. There may, it is true, arise an exceptional ease, where the testimony in behalf of the prosecution is so improbable and incredible that the court, convinced of its falsity or absolute insufficiency to warrant a verdict of guilty, would deal with it as a matter of law. This, however, must be an extreme case, and such is far from being suggested by the record before us. There was evidence on the part of the prosecution which, if believed by the jury, warranted them in finding the defendant guilty of murder in the first degree. Their verdict shows them to have believed it, and as the law leaves it to the sound and discriminating judgment of the jury what penalty they shall award for that degree of

Finding no error in the record, the judgment and order appealed from are affirmed.

McFarland, J., Angellotti, J., Shaw, J., Van Dyke, J., Henshaw, J., and Beatty, C. J., concurred.