People v. Peter

Appellant was convicted after a trial had before a jury of murder of the second degree, and appeals from the judgment as entered against him on the verdict and from the order denying him a new trial. Appellant also appeals from the order denying his motion for change of verdict from murder of the second degree to manslaughter. As to this attempted appeal from the order denying appellant’s motion for modification of the verdict of murder of the second degree to one of manslaughter, it would appear that this is not an appealable order, as it was made before judgment (Pen. Code, sec. 1237), but the matter may properly be reviewed on the appeal from the judgment and the order denying appellant’s motion for a new trial.

The facts and circumstances which culminated in the killing here involved, as disclosed by the record, are somewhat entangled, and the evidence produced at the trial, at times, is sharply conflicting. Appellant shot and killed one Alex Usuclte on Thanksgiving Day, 1931. The homicide occurred at the home of one Mrs. Eros, where both appellant and deceased lived. The deceased was shot at about 7 o’clock in the evening, after a day spent in a sordid celebration of the holiday. The participants in this so-called “party” were all Hungarians or made use of the Hungarian language. At about 8 o’clock in the morning of the day of the homicide, appellant, deceased, Steve Toth and Julius Klemper gathered at the home of Mrs. Eros. Klemper had at one time lived at Mrs. Eros’ house, but some little time before the events herein narrated had moved away owing

Appellant’s specifications of error, some fifteen in number, refer in many instances to rulings made by the trial court in the giving and refusal to give certain instructions to the jury. In view of the decision reached by this court upon this appeal, it becomes unnecessary to review many of these alleged errors, the questions presented being now immaterial.

Appellant assigns as error the refusal of the court to give the following instruction: “As to verbal statements, or as they are sometimes called, extrajudicial statements, that is, statements made by the defendant out of court, you have a right to consider that there is danger of mistake and misapprehension of the witnesses; the misuse of the words; the failure of the party to express his own meaning; the infirmity of memory on the part of the witness attempting to relate all the conversation. It frequently happens also that the witness by unintentionally altering a few of the expressions used gives an effect to the statement com

Appellant bases, in large part, his contention that he was prejudiced by the court’s refusal to so instruct the jury, upon the fact that many of the persons involved in the transaction referred to spoke Hungarian as their mother tongue, and could converse but brokenly in the English language. Prom an examination of the record, it clearly appears that the witnesses in testifying as to these statements of which appellant complains, gave their evidence in such a manner that the jury had before it not only the statements, but also the surrounding circumstances. In testifying as to the language used, the witnesses in most cases attempted to- give words actually made use of rather than the proper English word. We find in the record, for example, “ya ya” used for “yes”. The jury had the transaction placed before them, and it was their duty to consider this evidence with the same care as other competent evidence submitted to them. The subject matter contained in the questioned instruction might have provided the basis for argument before the jury, but under the circumstances presented in the instant ease, would have withdrawn from the jury their right to consider this particular evidence in the same way as the other evidence produced at the trial. It should be noted that in the case at bar the statements were attributed to persons who had difficulty in “expression” and, therefore, should be differentiated from those cases in which cautionary instructions are sometimes given, where the statement is that of a “child of tender years”. The court properly exercised its discretion in refusing to give the requested instruction.

Appellant contends that another instruction requested by him should have been given. This instruction had to do with the jury’s consideration of the testimony of the defendant. The court gave a general instruction pertaining to the credibility of witnesses, and in view of this it was not error on the part of the court to refuse to give the particular instruction so requested. (People v. Miller, 112 Cal. App. 535 , 538 [ 297 Pac. 40 ].)

The court was justified by the evidence introduced at the trial, in giving the following instruction and the

Appellant attempted to impeach the witness Klemper by the introduction of his testimony given at the preliminary examination had in the cause. Prom an examination of the record it clearly appears that the testimony given at the preliminary hearing referred to a time other than that referred to in the answer made by the witness at the trial, and therefore was not impeaching, but immaterial as to the question presented.

Appellant complains of the action of the court in the overruling of an objection interposed by him to a question asked of one of his witnesses upon cross-examination. This witness, Mrs. Bros, had just testified to the fact that appellant had lived in her home for thirteen years. She was then asked if she and appellant had not lived together as husband and wife. Over objection to this question, the witness answered “No.” This evidence was admitted for the sole purpose of showing motive, if any, on the part of the witness, and the jury at the time of the admission of the evidence were so instructed by the court. A witness is presumed to speak the truth, but this presumption may be repelled in a number of ways, among them by showing as to his motive. (Code Civ. Proc., sec. 1847.) Motive, being a condition of the human mind, is impossible of direct proof, but must be shown by condition, circumstance, act or statement of the witness. If the witness had lived with appellant in the relationship of husband and wife, this circumstance would, without doubt, be one which the jury could rightly consider as a factor in arriving at the motive of the witness and the weight to be given to her testimony. There was no error committed by the court in the overruling of appellant’s objection.

Appellant complains of a part of a general instruction given by the court on the credibility of witnesses: “A

Appellant’s remaining specifications of error are directed to certain rulings of the court overruling objection interposed by appellant to certain questions asked witnesses upon cross-examination. From an examination of the record, it appears that appellant failed to make timely objection. (People v. Gilman, 43 Cal. App. 451 , 453 [ 185 Pac. 310 ].) The evidence of itself was not of importance and was not unfavorable to appellant. In the other instance cited by appellant, the matter was also unimportant, and the cross-examination was as to matters which could fairly be said to be implied from the testimony given in chief.

In People v. Tyren, 179 Cal. 575 , at page 579 [ 178 Pac. 132 , 134], it is said: “It was not error to permit the defendant to be cross-examined" on this subject. AVhere a defendant testifies in his own behlaf, he may be cross-examined ‘ as to all matters about which he was examined in chief’. (Pen. Code, sec. 1323.) ‘The cross-examination may extend to the whole transaction, of which he gives a part’ (People v. Teshara, 141 Cal. 633 [ 75 Pac. 338 ]), and may be directed to the eliciting of any matter which may tend to overcome or qualify the effect of the testimony given by him on his direct examination.”

The various specifications of error which we have discussed at length herein are, in most instances, of a highly technical character, and we cannot but agree with a statement contained in appellant’s reply brief: “We do not

Appellant contends that the evidence, taken as a whole, is insufficient to support the verdict of murder in the second degree. With this contention we are constrained to agree. We have examined the evidence in this case with minute care. Appellant was properly found guilty on competent evidence of a most serious offense, and the errors, if any, did not prejudicially contribute toward bringing about the finding that appellant killed the deceased. “No miscarriage of justice, therefore, resulted, except that, as a matter of law, the jury improperly fixed the degree of the crime and imposed the penalty therefor. That injustice may now be righted without subjecting the state and the defendant to the delay and expense of a new trial.” (People v. Kelley, 208 Cal. 387 , 393 [ 281 Pac. 609 , 611]; Pen. Code, see. 1181, subd. 6.)

The facts of the case have already been stated and further analysis of the evidence seems unnecessary. The record discloses that the homicide closed a long day of drinking and controversy had by appellant, the deceased and the witnesses. It would appear that such days were not unusual in the home of Mrs. Bros, and that the actors in this tragedy had passed like days at her home at other times. The character, mentality and surroundings of the persons who took part in the transaction but too clearly appear from the word picture presented in the record. The fact that appellant stood dumbly by, after the killing, waiting for the police officers to arrive, is strongly indicative of his mental condition. The following statement, found in the case of People v. Kelley, supra, at page 393, applies with equal force to the case at bar:

“Nor can we bring ourselves to believe that there was a wilful, deliberate and premeditated killing. ... No express malice was shown, for there was not manifested a deliberate, or any, intention to unlawfully take the life of a fellow creature, and the circumstances attending the kill

The appeal from the order denying appellant’s motion for modification of the verdict, as heretofore noted, not being subject to review, is dismissed.

The judgment of the lower court of murder of the second degree is modified. The cause is remanded to the trial court, with directions to enter a judgment against the defendant finding him guilty of manslaughter, and to thereupon pronounce judgment upon him as prescribed by law.

Conrey, P. J., and York, J., concurred.