People v. Byrne

The defendant was charged by information filed February 12, 1907, with the crime of murder, committed November 15, 1906. His trial was concluded April 13, 1907, the jury rendering a verdict of guilty of murder of the first degree. A motion for new trial was made, and this was decided by the trial court on July 11, 1908, the motion being denied. On July 25, 1908, judgment of death was pronounced. A hill of exceptions was settled and approved by the trial judge in December, 1909, and the transcript on appeal was filed in this court on March 30, 1910. The appeal is from the judgment and from an order denying a new trial.

While it is claimed that the evidence given upon the trial was legally insufficient to warrant the verdict, a claim that we are satisfied is not well founded, the main contention of counsel for defendant is that a new trial should have been granted upon the ground of newly discovered evidence.

On November 15, 1906, between 8:20 and 8:30 p. m. the saloon of John O’Connell, at the northeast corner of Sixth and Brannan streets, San Francisco, was entered almost simultaneously by two men, one through a door opening on Brannan Street, and the other through a door opening on Sixth Street. Each was masked by a handkerchief, which was blue with white dots, and each was armed with a revolver. The man who entered by the Brannan-Street door was put by the witnesses as being a man about five and a half feet in height, as weighing from 140 to 155 pounds, and as wearing a dark coat and a soft black hat. The Sixth-Street door man was considerably taller. There were several men in the saloon at the time, one" of them being George O’Connell, the deceased, who had been a member of the police force. The masked men ordered all present to throw their hands up. The deceased drew his own revolver, and firing immediately ensued on the part of deceased and the two masked men, with the result that deceased and another man in the saloon, named Lynch, were killed, and still another was severely wounded. The whole affair occupied only a few seconds.

The two masked men at once left the saloon, the Sixth Street man getting no further than the southeast corner of Brannan and Sixth streets, his dead body being found there very shortly after. He was discovered to be one Frank Burke, a'young man well known in the vicinity. The Brannan Street man ran south, along the easterly- side of Sixth Street, between Brannan Street and Townsend Street, a hundred feet or so, and thence across the street, encountering in his flight a pile of tin, scrap iron, and debris, on which he either fell or stepped, to a point on the westerly side of Sixth Street near a five-foot alley between a small one-story wooden shack known as the Sullivan saloon, fronting on Sixth Street, and another small wooden shack occupied for saloon purposes by one Dillon. The Dillon saloon had then been closed for the night. The Sullivan saloon was still open, and Thomas

A pistol was a little later, between 10 and 11 p. m., found under the steps of a rear entrance to the Sullivan shack. It contained one empty chamber, two empty shells, and three loaded shells. A comparison of the bullet which had caused the death of O’Connell, with the bullets remaining in the pistol, showed that they were all of the same make and size, all being bullets of 44 caliber, -Winchester rifle cartridges. There was evidence to the effect that the Brannan Street man fired two shots.

The Sullivan shack contained, in addition to the bar room, two little rooms which were used for lodging purposes by a number of men who were permitted by Sullivan to occupy the same. The lodgings thus afforded were of the crudest character, being simply two small rooms, upon the floors of which, with the aid of an old mattress or two and old bed-wear, some nine or ten men were permitted to sleep. It was claimed that the lodgers were men whose work compelled them to be in that vicinity, and who, by reason of the conditions following the great fire of April 18, 1906, were under the necessity of occupying some such place.

The defendant, who had known the Sullivans for some time, had been one of these lodgers for about two weeks next preceding the murder of deceased. A little after 10 o’clock on the night of the murder, the Sullivan saloon building, which had then been closed for the night, was entered by police officers, Captain Duke being in charge. The defendant was found in one of the rooms together with five other men, all lying partially dressed, as was the custom, upon the mattress or rags upon the floor. The men other than defendant were Kelly, Canning, McGee, Morrissey, and a man named Rudolph, also known as Russell, all of whom were much larger than defendant, and who in no way tallied with the description of the Brannan Street man given by the witnesses of the attempted robbery and murder. In the other room were three men, Frank McDevitt, Gallagher, and Considine, none of whom resembled the defendant in appearance. In another room in front were Peter J. Sullivan and Thomas Sullivan, brothers of the proprietor, who were bar

The witnesses of the. shooting agreed upon the proposition that the defendant in size and build resembled the Brannan Street robber in appearance. Defendant’s weight, however, did not actually exceed about one hundred and twenty pounds.

The evidence warranted the conclusion that Burke, the dead robber, was an habitué of the Sullivan saloon, was at times one of the lodgers there, and was well known to all the inmates thereof. While evidence of any special intimacy between him and defendant prior to November 14, 1906, is wanting, according to his own testimony defendant had known him for six or seven weeks and had first seen him in Sullivan’s saloon. An officer testified that he had once seen defendant in Burke’s company on the street. Mrs. O’Connell, wife of the proprietor of the Sixth and Brannan streets

The evidence warranted the conclusion that defendant had not been working at all since his discharge from the city and county hospital early in October, or endeavoring to obtain work. He was in the city and county hospital from September 20th or 22d tq October 11th, suffering, he said, from lead poisoning. While much was made by the defense of the fact that he was administrator of the estate of his father, who lost his life by reason of the earthquake and fire of April, 1906, it was apparent that his duties in this behalf were not of such a nature as to occupy his time, and there was no pretense that the estate was of such a character as to supply hipi with any appreciable amount of money, or that he had any expectation of realizing anything from the estate. It was fairly inferable from the evidence that he was

The trial of defendant was commenced on March 18, 1907, and continued, without intermission, to and including March 25, 1907. The defendant testified as a witness on the last-named day, his examination being concluded, and the district attorney reserving the right to recall him for further cross-examination if desired. Owing to the sickness of two of the jurors, the trial was not resumed until April 9, 1907. Up to the time of this adjournment, defendant had contented himself with stating simply that, during the whole of the evenings and nights of November 14 and 15, 1906, from as early as 6:30 until Sullivan’s saloon was closed for the night, he was in the bar room of that resort, leaving it only to go to bed when the saloon closed. His evidence was of such a nature as to preclude the idea that a man named Hogan, who will hereafter be referred to, came to the saloon at all that evening, and the record forbids the conclusion that he had ever intimated to his counsel or any other person, anything about Hogan, or the remarkable event portrayed in his subsequent evidence, given when the trial was resumed on April 9, 1907. That evidence was substantially that about 8:30 of the evening of November 15th, a man named Hogan, who did not live at the saloon, but who frequently came there and was a friend of the Sullivans and known to those frequenting the place, appeared at a door leading from the saloon into the hallway, with a gunshot wound on the right side of his jaw, at one end of which was a bullet which one of those present knocked out of his jaw with a finger, causing it to fall to the floor. Defendant picked up the bullet, looked at it, and threw it out of the door. Hogan said, “Frankie dropped” or “Frankie fell.” Hogan at once left the saloon in the company of Peter Sullivan and Joe Liddy. It was made to appear on the motion for a new trial that defendant made a similar statement to his counsel between March 25th and April 9th, and, by arrangement of his counsel, had submitted to an examination before the district attorney, in which he told a substantially similar story. His expressed reasons for having previously suppressed what he claimed to be the truth in a matter most vital to himself were his fear of Hogan and the other inmates of the place

This testimony having been given, much of the remainder of the trial was devoted to an investigation of the claim of Hogan’s participation in the affair. No witness on the trial corroborated the remarkable story so told by defendant. Peter Sullivan, who was said by defendant to have left the saloon in company with Hogan, said that he went to his room at 7 o’clock on being relieved from duty as barkeeper, stayed there until the officers invaded the place, and heard nothing about the affair until then. Canning, one of those present in the saloon the whole of the evening after 7:10, testified for defendant to the effect that defendant was present during all of the time, but positively denied the alleged Hogan episode, and also denied that Joe Liddy was there at all. Liddy testified that he was not at the saloon at all that evening. These appear to be the only persons claimed to have been in the saloon during the whole of the evening of November 15th who were examined on the trial, although others present were accessible.

Hogan was a married man, living with his wife and child on San Jose Avenue at a point somewhat remote from Sullivan’s saloon. He was a horseshoer by occupation, and had been working in San Francisco as such for a man named Krouse, almost continuously for about three and one-half years prior to November 15th. Krouse’s place of business was 410 Brannan Street. Hogan resembled defendant somewhat in height and build, but was a little heavier and a little taller. It appears to be conceded also that he was a man of dark complexion, while defendant was light. As before stated, Hogan frequently visited Sullivan’s and was well known there. He had known Burke for a long time, and was intimate enough with him to have gone, according to his own testimony, on a hunting trip of some days’ duration with him, and another person, a few weeks before November 15th. At the time of the trial he had a scar on his jaw. the

While a mere reading of the record in this case necessarily leaves one in grave doubt on the question of the defendant’s guilt, there is certainly enough in the evidence to sustain the conclusion of the jury and trial judge who saw and heard the various witnesses, and who were in a much better position to determine the truth than a court that does not possess such an advantage.

An apparently very strong showing was made for a new trial on the ground of newly discovered evidence, but in the light of the well-settled rules applicable in the consideration of appeals from orders of trial courts denying such motions, we do not see how it can properly be held that the trial court abused its discretion in denying the motion.

The claim of newly discovered evidence warranting a new trial is universally looked upon by the courts with distrust and disfavor. Public policy demands that a litigant should be compelled to exhaust every reasonable effort to produce at his trial all existing evidence in his behalf. It has been said that the circumstance that the testimony has just been discovered when it is too late to introduce it is so suspicious that courts require the very strictest showing of diligence. (People v. Freeman, 92 Cal. 366 , [ 28 Pac. 261 ].) It is recognized, however, that despite the exercise of such effort, cases will sometimes occur where, after trial, new evidence most material to the issue and which would probably have produced a different result, is discovered. For such cases, the remedy

In accord with these principles it has been held by this court that the testimony of a witness absent from the trial because his whereabouts were then unknown, the existence and materiality of which were known to defendant before the trial, was not newly discovered evidence on account of which a new trial could be granted, although defendant had endeavored to find the witness before the trial. The court said: “Knowing of the importance of his testimony, defendant should have moved for a continuance, and failing to do so, it must be held that it entered upon the trial at its peril.” (Germania Trust Co. v. San Francisco, 128 Cal. 589 , [ 61 Pac. 178 ].)'

In Berry v. Metzler, 7 Cal. 418 , it was said: “A party is bound to know the materiality of testimony known to him, except in cases of surprise at the trial. And when the party discovers new testimony before the trial, but too late to procure it, he should apply for a continuance.”

When due diligence on the' part of defendant to produce at the trial all evidence in his favor has been shown, the trial judge is still called upon, in the exercise of a wise discretion, to determine the weight to be given to the evidence produced upon the motion for a new trial, the truth of the matters shown thereby, and the materiality and probability of the effect of them if believed to be true. (People v. Weber, 149 Cal. 350 , [ 86 Pac. 671 ].) That counter affidavits to rebut the showing made by defendant on such a motion, by discrediting the newly discovered witnesses, or by disputing the

In the light of what has been said, the alleged newly discovered evidence to the effect that defendant was not absent from Sullivan’s saloon at any time after 6:30 p. m. on November 15, 1906, and that Hogan appeared at Sullivan’s just after the attempted robbery, wounded and apparently a fugitive, was not such as to warrant a reversal of the order of the trial court. The alleged newly discovered evidence in this regard was that of William A. Rudolph, Edward McKee, and John Morrissey, all lodgers in the Sullivan saloon, on the night of November 15, 1906, and Thomas Sullivan, barkeeper on duty therein on that night from 7 o’clock to the time when the saloon was closed. Rudolph, who at Sullivan’s place went by the name of “Russell” or “Whitey,” by affidavit, made May

Of course, none of this evidence was really discovered after the trial. If defendant and Rudolph, McGee and Morrissey, were speaking truthfully in regard to the matter of defendant’s presence in Sullivan’s saloon, and the Hogan episode, defendant knew just as much about the existence of this material evidence before the trial, as he did after. Under ordinary circumstances, his failure to call Morrissey and McGee as witnesses and his failure to ask for a continuance for the purpose of procuring the presence of Rudolph would show such want of diligence in the matter of obtaining this testimony as would preclude consideration of it as newly discovered evidence. But it is earnestly urged that as defendant had learned that those present in the Sullivan saloon on the evening of November 15th would not testify to the Hogan episode, a fact shown in the case of Canning, who when called as a witness by him, denied that Hogan appeared there that evening, he was justified in refraining from calling them at the trial, and is now entitled to rely on their evidence as newly discovered evidence. If we assume this to be true, a matter we do not deem it necessary to decide here, and if we further assume that Rudolph’s affidavit might properly have been taken into consideration by the trial court, notwithstanding his death and the consequent impossibility of introducing his evidence on a new trial, we still cannot say that there was an abuse of discretion on the part of the trial court in refusing to allow a new trial on account thereof.

The witness Morrissey, who still remained silent as to the Hogan episode, was discredited by evidence of inconsistent statements. On the night of the shooting, when examined in the Sullivan saloon by Captain Duke, in the presence of Sergeant Regan, he had said that he went to bed before 7 p. m., and knew nothing about the affair. On December 2, 1903, he had signed a statement to the same effect. On August 16, 1907, he said to Captain Duke, referring to defendant, “You’ve got the right man, and that’s all there is to it,” and later on the same day he said to Captain Duke, in the hearing of Ser

Rudolph had told Captain Duke in the presence of Sergeant Regan, when questioned on the night of the shooting, that he knew absolutely nothing of the shooting, and that he had been in bed and asleep from 7:30 p. m. This statement found some support in the evidence given by Canning on the trial, wherein he testified that when he went to bed, Rudolph was already there, asleep. According to his own story he had subsequently left San Francisco, knowing that an innocent man was in custody charged with the murder of O’Connell, willfully concealing information that would at once establish his innocence, and enable the authorities to develop the facts establishing the guilt of the real perpetrator. In his affidavit, which was surprisingly specific as to every detail that could bear in favor of defendant, even to the hearing of the pistol shots in O’Connell’s saloon, just prior to Hogan’s appearance, he contradicted all the evidence in the case on the question of the handkerchief, saying that a blue handkerchief with white dots was taken from defendant in the saloon, while all the evidence showed that no handkerchief was found on defendant until' after he had been removed from the saloon and taken to the comer of Sixth and Brannan streets. The trial

In view of all the circumstances, it can only be said, as was substantially said in People v. Weber, 149 Cal. 350 , [ 86 Pac. 671 ], that potent as these affidavits may have been, if believed, it may not be said by this court that the trial court did not exercise a sound discretion in absolutely discrediting them.

Another line of alleged newly discovered evidence relied on in support of the motion was evidence tending to show that Hogan and the other employees of Mr. Krouse had each been given some months before November 15, 1906, a blue bandanna handkerchief with white dots, and also evidence tending to impeach Hogan’s evidence that he spent all of his evenings at home, by showing that on several occasions he had been out in the evening with one of his fellow employees. The mere fact that Hogan may have been the possessor of a blue handkerchief with white dots was of little significance. It does not appear to be questioned that such handkerchiefs were quite common in San Francisco at that time, and the important thing in regard to the handkerchief found on defendant was, not only that it appeared to the witnesses to be similar in color and design to that worn by the Brannan Street robber, but that it also appeared to the officers, when found upon defendant, to have been twisted at two ends, so as to indicate that such ends had recently been knotted together. The showing tending to impeach Hogan’s evidence as to his habit of staying at home evenings was very slight, and altogether entitled to little if any weight in the determination of the motion by the trial court.

The real question in regard to the Heffernan matter arises from the discovery by defendant’s attorney of the fact that Heffernan saw Burke in the O’Connell saloon on the night of November 14th, about 10 o’clock, when Burke came in with another man, about five feet six inches in height, and of light complexion, and had a drink at the bar, and that he could not tell whether or not such other man was the defendant. Heffernan’s affidavit to this effect was presented by defendant on the motion for a new trial. He had not been questioned about this when examined on the trial, the defendant having no reason to suspect that he had seen Burke on November 14th. The importance of this testimony lay in the fact that the two men so visiting the O’Connell saloon on the night of November 14th were the same men whom Poole testified to seeing at the Buffalo Hotel door that night, and thereafter in the O’Connell saloon, one of whom, he said, resembled the defendant' in appearance, and were possibly the two men referred to in the testimony of Mrs. O’Connell, and also in the doubt that might reasonably arise concerning the identification by Heffernan on the night of the 15th, if he was unable to identify the same man on the night of November 14th. There were also presented the affidavits of counsel for defendant, to the effect that Heffernan had stated to them, first in July, 1907, and again in January, 1908, when questioned by them, that he had looked particularly at the features of the smaller man of the two in O’Connell’s saloon, on November 14th, and that such smaller man was not the defendant, and that he in fact

We have given the claims of learned counsel as to the showing in this behalf, our most earnest consideration, but cannot escape the conclusion that we are not warranted in disturbing the action of the trial court thereon. Heffernan, who was examined and cross-examined at great length on the trial, did not appear to have in any way changed his views as to the identity of the man whom he saw with Burke on the evening of November 15th, or to have made any statement inconsistent with his testimony in that regard given on the trial. That he should be able to identify the man he saw on November 15th just a few minutes before the shooting, while not able to say he was the same man he saw in the saloon the night before, is not at all incredible, and the judge of the trial court was better able than we are to determine as to the probable and proper effect of such an inability on his part. It is not at all clear that the man with Burke in O’Connell’s saloon on November 14th, whom Poole and Heffernan saw, was the same man whom Mrs. O’Connell saw with Burke that evening. In fact, the testimony of Poole and Mrs. O’Connell rather indicates that they were speaking of different periods of time, Poole seeing his two men go to the Buffalo Hotel door after the place had closed for the night, and Mrs. O’Connell seeing her two men enter that place before it was closed. It may well be that the man in the O’Connell saloon on November 14th, who, according to Poole, was not Hogan, and resembled defendant, was not the defendant at all, and that Heffernan was correct in his evidence given on the trial to the effect that he had never seen defendant prior to the night of November 15th. Assuming, then, that it could be clearly shown that the man Avho was with Burke in O’Connell’s saloon on November 14th, was not the defendant, and also was not Hogan, as is established by Poole’s evidence, it cannot be doubted that the question of the probable and proper effect of such showing, as well as the question arising because of inconsistencies in statements made by Heffernan, were exclusively for the trial court.

This disposes of all substantial claims in regard to neA\dy discovered evidence. Learned counsel say substantially that

Evidence of Captain Duke, Sergeant Regan, and Sergeant O’Connell, was admitted, to the effect that while defendant, McGee, and Morrissey, were in the patrol wagon at Sixth and Brannan streets, Poole told Captain Duke that he had the right man in the wagon, the one in the middle. According to Regan, Poole pointed at defendant while he spoke, and said, further, “I saw this man with Burke last night, trying Garry Welch’s door.” Duke also testified to the latter statement, all agreeing that defendant remained silent in the face of Poole’s statement. Up to this time, defendant had not been formally arrested for this crime or searched, but had simply been taken in charge, with McGee and Morrissey, for further investigation. This evidence was received on the theory that defendant’s silence in the face of the accusation was proper as tending to show a tacit admission on his part of the truth of the accusation. It has been uniformly held in this state that an accusation may naturally call for a reply even from a person under arrest. Whether the circumstances are such as to make the failure to reply proper evidence tending, to show an admission, is, in the first instance, a question for the trial court. We are of the opinion that the evidence here was sufficient to support a conclusion on the part of the trial court that it, prima facie, showed that Poole’s statement was made in the

We have no doubt that a defendant against whom evidence of a failure to deny an accusation has been introduced, is entitled to show as a circumstance tending to explain his silence and rebut any possible prejudicial effect thereof, that he had within a few minutes previous thereto denied a similar accusation to the police officers who had him in charge at the time of the making of the second accusation. That he had already so recently fully denied an accusation to such officers might be considered a circumstance tending to explain failure to deny the second accusation, made by another party. Both Sergeant Began and Captain Duke were asked on cross-examination to detail any conversation had with defendant in the Sullivan saloon prior to first taking him to the corner of Brannan and Sixth streets, and objections of the district attorney on the ground that the proposed evidence was “incompetent, irrelevant and immaterial, and not cross-examination and calling for self-serving declarations” were sustained. No evidence

There was no error in admitting in evidence the pistol found under the steps leading to Sullivan’s rear entrance. It had been sufficiently identified as the pistol that had been used by the Brannan Street robber and that had caused O’Connell’s death.

We find no prejudicial error in the action of the trial court in striking out portions of the affidavits presented on motion for a new trial. There was no error in the rulings on cross-examination of Thomas Hogan and Catherine Hogan or in the action of the court in the matter of instructions.

We find no other matter requiring mention.

The judgment and order denying a new trial are affirmed.

Shaw, J., Sloss, J., Henshaw, J., Lorigan, J., and Melvin, J., concurred.

Behearing denied.