People v. Smith

The appellant was charged with murder in the killing of one Joseph McCann in the city of San Francisco, and on trial was convicted of manslaughter. He appeals from the judgment and order denying his motion for a new trial.

It was insisted by the defendant upon the trial that the killing of McCann was committed by him in necessary self-defense.

Several grounds are urged for a reversal, and in order that these may be properly considered it is necessary to refer to some of the evidence in the case. That evidence tended to show that on the afternoon of the day of the homicide (January 11, 1905) the deceased was in Meyerborg’s saloon, at the southwest corner of Taylor and Eddy streets, in the city of San Francisco, drinking, when Fred Smith, a brother of the defendant, entered. It does not appear that these two were acquainted, but as soon as Fred Smith entered McCann stepped up to him and addressed him as a “little - son-of-a-bitch” and characterized his mother and sister as whores. Fred Smith, with tears in his eyes, told McCann that he (Smith) was only a little fellow and unable to defend himself, but that he had a brother who would make him “eat those words” or “repeat those words,” if he would wait until he could get him. McCann said he would wait, and Fred Smith left the saloon. Some fifteen minutes later Henry Smith, the defendant, the brother of Fred Smith, walked into the saloon, took a glass of beer, and then went out. He immediately returned with Fred Smith, who had remained on the outside when defendant first entered the saloon, and as they came in the latter pointed to McCann as the person who had used the language about their mother

It further appeared from the evidence that McCann was a marble-cutter, forty-five years of age, and weighed about two hundred and forty pounds. The defendant was twenty-one years of age, had been employed as a solicitor in the clothing business, and, according to his own testimony, weighed some time prior to the homicide, about one hundred and five pounds, and for three and a half years had suffered from catarrh of the stomach, and had been under the care of a physician, Dr. Newton, for two and a half years prior to the date of the conflict.

This is a sufficient statement of the evidence to illustrate the points made upon this appeal.

Complaint is first made of the refusal of the court to give certain instructions which were requested by the appellant. As the record, however, shows that the instructions given by the court of its own motion embraced the same principles of law contained in the instructions asked by the defendant, he has no valid ground of complaint that the instructions tendered by him embodying the same principles were refused.

It is also insisted that the court erred in allowing certain witnesses for the prosecution to state the language used by the deceased towards Fred Smith in the saloon in which he called the mother of the defendant a whore. The claim of appellant is that, as he was not present at the time the language was used, evidence relative to its use was inadmissible against him. Before any proof of the use of this language by deceased was made it was shown that defendant on his second entry into the saloon, and after his brother had pointed out the deceased as the man who used the language, said, “Did you call my mother a whore ? ’ ’ and ‘1 Can you repeat them [words] again?” Under these circumstances evidence of the language used by McCann towards Fred Smith about the mother of defendant, even though uttered in the absence of defendant, was admissible as explaining what defendant meant and to what he had reference when inquiring of McCann whether he had used the language and asking him whether he could repeat it. Particularly is this true in view of the fact that Fred Smith, the brother of defendant, at this same time

It is next urged that the court erred in overruling the objection of appellant to the admission in evidence of the declaration made by Fred Smith while the shooting was taking place,—namely, “I knew he was going to get it.” It is insisted by the respondent that the defendant cannot avail himself upon this appeal of the alleged error in the admission of this evidence, because, although he objected to the question asked, he did not after it was answered move to strike out the response. This point is undoubtedly good. There was nothing on the face of the question to indicate that an answer to it might not be relevant, material, and competent evidence, and hence it was not improper to overrule the objection urged against the inquiry upon the only ground urged,—namely, that it was irrelevant, immaterial, and incompetent. The question only appeared to be vulnerable to all these objections when the answer to it was given, and as that was the first and only time it appeared to be so, it was the duty of the defendant to move to strike the answer out, and having failed to do so, no error can be predicated on the overruling of the objection. (People v. Williams, 127 Cal. 216 , [ 59 Pac. 581 ] ; People v. Lawrence, 143 Cal. 148 , 156, [ 76 Pac. 893 ].)

If this were the only point made for a reversal of the judgment, we would, for that reason, have to hold that it was not well taken; but as the cause must go back for a new trial, we feel impelled to dispose of the question as to the admissibility of this evidence upon its merits, and now proceed to do so.

The theory of the prosecution on the trial of the case was that after McCann had used the language to Fred Smith when he first came in the saloon concerning his mother and sister, the latter sought the defendant and a conspiracy was entered into between them to kill McCann, and in defense

We cannot agree with the position of respondent, and are of the opinion this evidence is inadmissible.

We do not discuss the claim made by appellant that there was no evidence in the case supporting the theory of a conspiracy. It was insisted on the trial that there was, and evidence was introduced which, it is asserted now, supported that claim. ° Whether there was or was not a conspiracy entered into between these brothers having for its object the killing of McCann is a question of fact to be determined by a jury from the evidence, under appropriate instructions from the court, and as the question immediately under consideration does not involve any inquiry as to whether there was=or was not sufficient proof of the conspiracy, that question is left where it properly belongs upon a new trial,—namely, to the jury. For the purposes of present consideration, if it should be conceded there was sufficient proof of a conspiracy, still we do not think that this declaration of Fred Smith was admissible. The rule allowing statements or declarations of one conspirator to be given in evidence as against his co-conspirator requires not only that the conspiracy be pending and its object not consummated when the statements or declarations are made, but also that such statements, in order to be admissible, must be in aid and furtherance of the common purpose or design of the conspiracy.

The rule is stated in Cyclopedia of Law and Procedure (vol. 8, p. 680): “Acts or declarations of a conspirator catinot be admitted as against a co-conspirator, unless such acts were performed or declarations made in aid or execution of the conspiracy.”

And as to the admission of such statements or declarations, it is said in People v. Irvin, 77 Cal. 494 , 504, [ 20 Pac. 56 , 59] : “No declarations except those made ‘during the pendency of

Now, examining the declaration of Fred Smith admitted in evidence in the light of the principle declared in these authorities, it is readily observable that such declaration was in no manner in aid or execution of the asserted conspiracy, or in any way in furtherance of its objects. A declaration, statement, or act of a conspirator, to be admissible as in “furtherance” of the conspiracy, must, as the word “further-, anee,” ex vi termini, imports, be an act, statement, or declaration which in some measure, or to some extent, aids or assists towards the consummation of the object of the conspiracy. How can it be claimed that the declaration in question was of this character? When this declaration was made by Fred Smith the conflict between his brother and McCann was practically on, and he had fled from the scene to a place of safety. Certainly, it cannot be pretended that at the time he answered the inquiry of the storekeeper he was doing anything in aid of the killing of McCann or which tended to effect that object. His declaration that he knew that the; deceased was “going to get it” was simply a statement of his belief or opinion on the subject. It was not made at a time when Fred Smith was aiding in furthering the object _of the asserted conspiracy, nor was it a declaration in any-manner in aid or furtherance of the alleged conspiracy, and as any declaration made by him could only be admissible if it were, such declaration was inadmissible when it was not.

The only authority cited by respondent in support of the ruling is the case of the People v. Murphy, 45 Cal. 137 , but in that case the exclamation of Mrs. Murphy, the wife of the defendant who was on trial, accompanied acts done by her in furtherance of an apparent conspiracy entered into between her husband and herself to kill the deceased, and occurred in the presence and hearing of her husband at the time of the homicide, and was admissible for that reason under the rule.

The last ground for a reversal is predicated upon the refusal of the trial court to permit the appellant to show

Dr. Newton was called as a witness by the defendant to prove these facts, but the court refused to permit him to testify on the subject.

The rejection of this evidence by the court was error. The rule is uniform that when the defense is self-defense, it is always competent to show the relative physical strength of the deceased and the defendant. The defense in this ease was self-defense. It was claimed by the defendant that the deceased was a larger and more powerful man than himself; that he had pursued him, struck him, and thrown him down upon the street; that he had him clutched by the throat, had declared his intention of killing him, and was beating his head on the cobblestones; and that to prevent the deceased from inflicting great bodily injury upon him, or carrying his threat of death into execution, and under a reasonable apprehension that he would do so, he fired the shots which killed him.

In considering that defense, the defendant was entitled to have go before the jury all evidence which tended to support it. It is always a material issue to such a defense whether defendant acted under a reasonable apprehension of the infliction upon him by deceased of great bodily injury or death at the time he killed him. And, as bearing upon that question, evidence of a great disparity of the relative physical condition of the deceased and the defendant is always an important and material fact to be considered by the jury. Common experience teaches that when an attack is made without deadly weapons by one who is physically weak and feeble upon another of vigorous physical condition and of superior strength, there is no room for asserting that any reasonable apprehension of injury from such an assault could exist

This principle of law is so well established that the citation of authorities is unnecessary. In fact, we do not understand the rule to be quéstioned by the respondent. Its position relative to this rejected evidence is that the defendant was not prejudiced by the ruling because he testified himself on the subject of the disease from which he was suffering. It is true he did testify that he. had been afflicted with the disease for almost three years and a half, and had been

There is nothing further presented on this appeal for consideration. The judgment and order are reversed and the cause remanded for a new trial.

Angellotti, J., Shaw, J., Henshaw, J., McFarland, J., Sloss, J., and Beatty, C. J., concurred.