People v. McGann

Upon information charging him with the crime of murder, the defendant was convicted of manslaughter. He appeals from the judgment and from an order • denying his motion for a new trial. There is no question of the fact that the appellant killed one R. T. McAdams, as alleged in the information. On the day of the killing, at about 9 o’clock in the evening; the wife of the appellant, who appears to have been estranged from her husband and to have been very intimate with MeAdams, went with McAdams to an amusement section in the city of Long Beach known as the “Pike.” There McAdams was killed, the appellant firing two shots from a revolver into his body. McAdams fell to the sidewalk and the defendant fired three more bullets into the inert body. There is evidence in the record from which it may be inferred that one of the first shots was fatal. The defenses presented at the trial were, first, self-defense, and, second, insanity of the defendant at the time he committed the act.

[1] On this appeal it is urged that the court erred in sustaining an objection of the district attorney to questions asked of a witness, Martin, who was an eye-witness from the beginning of the affray until the defendant was arrested, and who, while on the stand, minutely described what took place. On cross-examination the defendant sought to elicit from the witness testimony concerning the action of Mrs. McGann immediately after the shooting, and relating to the position of the decedent’s body after the defendant had gone some distance away, and then returned to the scene after the fatal shots were fired. Although in his briefs on appeal the appellant asserts that he attempted to cross-examine the witness Martin on these matters for the purpose of testing the strength of his recollection, the

[2] It is next urged that the court erred in refusing to permit the wife of the defendant, who was a witness for the defense, to testify as to what was said by the decedent McAdams to her immediately before the shooting, when the wife and McAdams first saw McGann, such conversation not having been heard by the defendant. After locating the place from which the witness and the deceased saw the defendant, counsel for the defense asked: “At that time did you have a conversation with Mr. McAdams, the deceased, about Mr. McGann? A. I did. Q. What was said between you at that time? Mr. Van Cott (Deputy District Attorney): That is objected to as irrelevant and immaterial on any theory. Mr. Ford: Showing a state of mind and a declaration of intention, your Honor, not as evidence of the narrative, but merely as a declaration. Mr. Van Cott: I object to that as irrelevant and immaterial. The Court: I will sustain the objection.” The examination then proceeded without further statement or offer on behalf of the defendant as to what he intended to show, and the court was not apprised of the purpose for which the evidence was sought, other than as stated by Mr. Ford. The witness then described the shooting. The substance of her testimony was that although she did not “want to go that way,” after the presence of the defendant was noted, McAdams and she walked toward her husband; that when they reached the defendant the decedent bumped into him with his left shoulder; that the defendant then took hold of the decedent’s arm and said to him: “Do you know this woman you are walking with is my wife and you have broken up my home ? ’ ’ to which the decedent replied: “She was yours but she is

It is the contention of the defendant that in view of his plea of self-defense it was important to determine whether or not the deceased was the aggressor, and for that reason he should have been permitted to show that the decedent uttered threats concerning the defendant immediately prior to the affray, which, although uncommunicated to the defendant, had a material bearing upon what followed. [3] This court has said that in case of a deadly encounter, where one party is killed and the survivor claims that the killing was done in self-defense, the question as to who was the aggressor is an issue of vital importance for the consideration of the jury. Under these circumstances, all the acts and conduct of the deceased, either in the nature of overt acts of hostility or threats, communicated or uncommunicated, are proper evidence to be considered by the jury as shedding light, to some extent, upon the issue as to whether the deceased or the defendant was the real aggressor in the affray. (People v. Thomson, 92 Cal. 506 , 511 [ 28 Pac. 589 ].) It is now urged by the defendant, on the strength of this and other authorities, that if Mrs. McGann had been permitted to testify as to what the decedent McAdams said to her immediately prior to the affray it would have been shown that the decedent deliberately approached McGann “with the purpose of starting trouble and injuring the defendant.” He made no such explanation- to the trial court at the time, and does not now enlighten us as to what the witness would have testified to. Aside from the scant declaration of counsel at the time the objection was interposed, the only reference or intimation from which the trial court might be apprised of the object of the defendant in asking the question is found in the opening statement of counsel for the defense when he said, without referring to any witness or witnesses, “we offer to show his [the decedent’s] state of mind—sentiment—I have forgotten the exact language the witnesses will testify to in that, but the effect was, that he would show the defendant he was not afraid of him.”

[5] In concluding one of its instructions to the jury, the court said: “It has been urged on behalf of the defendant that, it being impossible to assign any reason for the

The statement by the court of what had been “urged on behalf of the defendant” indicates that matters of the nature referred to in the instruction had been injected into the trial, and it was held in People v. McCarthy, 115 Cal. 255 , at page 264 [ 46 Pac. 1073 , 1076], in commenting upon a similar instruction, that “whatever may be correctly stated by counsel in argument to the jury, as a legal guide to facilitate their deliberations, must necessarily be held proper matter for instruction by the judge, since the latter is the source from which the jury are to receive their guidance in the law.” But the point here urged was not raised in that case. It is now argued that the instruction amounted to a charge to the jury with respect to matters of fact. The contention must be upheld.

[6] The question of a motive in a criminal prosecution is essentially a question of fact. (People v. Tom Woo, 181 Cal. 315 , 328 [ 184 Pac. 389 ]; People v. Besold, 154 Cal. 363 , 369 [ 97 Pac. 871 ].) Am instruction, in effect not unlike the one here criticised, and in which the trial court discussed the importance of a motive in a criminal case, was held to' be “an argument against the defendant on the facts,” and a violation of the constitutional inhibition de

[7] No more importance is to be attached to an error of the trial court in violating the provision of the constitution forbidding instructions with respect to matters of fact than to any other, if no injury results from it. (People v. Ybarra, 17 Cal. 166 , 171.) 'Such a'declaration was made by this court at a time when injury to a defendant in a criminal cause would be presumed unless the contrary clearly appeared. (People v. Eppinger, 109 Cal. 294 , 297 [ 41 Pac. 1037 ].) [8] Prejudice is no longer presumed, but substantial injury, as well as error, must be made affirmatively to appear before a judgment of conviction will be set aside. (Vallejo etc. R. R. Co. v. Reed Orchard Co., 169 Cal. 545 , 554 [ 147 Pac. 238 ] ; People v. Alba, 52 Cal. App. 603 , 608 [ 199 Pac. 894 ].) The defendant fired five shots into the body of the decedent. As to the first two, he pleaded necessary self-defense, thereby advancing a motive in justification of his deed. Such contention was prominently before the jury at all stages of the trial. It was fully and correctly instructed on the law of self-defense. In view of the situation thus presented, it seems incredible that the court could have intended, or that the jury considered, that the instruction should have any reference to the defense of self-preservation interposed by the defendant. So far as it could have had any applica

[11] The defendant introduced evidence to show that he was “controlled by some temporary aberration of the mind” when he shot McAdams. It was, therefore, not error on the part of the trial court to instruct the jury that the" law does not recognize the plea of irresistible impulse, but that responsibility depends upon the question whether or not accused was conscious of and knew the nature of the act committed at the time of its commission, and whether it was wrong. (People v. Hoin, 62 Cal. 120 , 123 [ 45 Am. Rep. 651 ].)

The instruction should not have been given. An examination of the record shows quite clearly that the evidence just cited, part of which is referred to in the instruction, was introduced to show the “state of mind,” generally, of the defendant, and the “effect on his state of mind,”, brought on by the sight of his wife in company of the decedent. There does not appear to have been any such limitation of the evidence, when offered and received, as that placed upon it by the trial court. Neither is there to be found any justification for the assertion that the evidence was received solely to assist the jury in determining between the death penalty and imprisonment for life in the event it found the defendant guilty of murder in the first degree. While this court is at a loss to understand why the instruction was given, it is clear that no substantial prejudice resulted to the case of the defendant because it was given. When read in its entirety, the record discloses a set of facts from which the jury might well have found that "the defendant wasi guilty of murder, as charged in the information. It was correctly instructed as to the crimes and degrees of crime included in such a charge. It was fully informed as to the law of self-defense and insanity, the defenses interposed by the defendant. By its verdict it rejected these pleas, but did reduce the crime committed by him from murder to manslaughter. Therefore, it cannot be

The order and the judgment appealed from are and each is affirmed.

Lawlor, J., Lennon, J., Shenk, J., Richards, J., Seawell, J., and Myers, C. J., concurred.

Rehearing denied.

All the Justices concurred.