People v. Bond

The defendant and one M. A. Carpenter were jointly charged with murder. They were tried separately and the defendant Bond was convicted of manslaughter. He has appealed from tjie judgment and the order denying his motion for a new trial.

On August 20, 1908, appellant and the said Carpenter, who were deputy fish and game commissioners, were at a certain point on Battle creek, in Tehama county, looking for an individual who, they had been informed, was violating the fish and game law. They walked up the creek and observed the deceased, an Indian named Robert Junior, engaged in unlawful fishing. The officers went away in search of the other party, but returned in a short while and placed the Indian under arrest. With Junior at the time were his wife, his daughter and his granddaughter. There is a sharp conflict in the testimony as to what occurred at the scene of .the arrest, but it is agreed that all the parties proceeded up the hill to the camp of the deceased. An entirely different account from the statement of the defendants as to what occurred at the camp is given by the Indians. According to the former, the history of the affair is about as follows: Upon their arrival the deceased looked around and about the wagon as though searching for something, the Indian woman taking her position at the rear wheel thereof, the evidence without conflict showing that while Junior was down at the creek fishing the Indian girls had placed his rifle under the wagon and covered it with a quilt. Deceased then went out to a tree and an outhouse, which were near, and immediately turned back, looked under' a board and then started toward the wagon. Bond and Carpenter were watching him and the latter stated to the former: “I guess he hasn’t got any gun.” They then started toward their buggy, Bond being in advance about fifteen feet. When they had gone about twenty feet they heard a commotion at the rear end of the wagon and looking back they saw the Indian woman shov

It is stoutly insisted by appellant that the evidence is insufficient to support the verdict of manslaughter. It is virtually conceded that there is testimony tending to show that the crime was committed, but the contention is that it must be disregarded on account of the want of credibility of the witnesses so testifying. In this connection we deem it necessary to refer only to the widow, who was the principal witness for the people. It is contended that it appears she contradicted herself in important particulars, when we compare her testimony at the coroner’s inquest, the preliminary

At any rate, here is some of the testimony which we are asked to brush aside as unworthy of credence: “My husband he pass around the wagon and went over here where this table was and looked in the box and then come back along here and I caught him by the arm and called his attention to this loose wagon nut. He was standing near this loose wagon nut when I had this conversation with him about the monkey wrench, and Carpenter was, over there with his fish basket and Bond was standing over here near the right hind wheel of the wagon. The time that I saw Bond shoot my husband was when my husband turned around and was facing over towards the oak tree, then my husband staggered back to the live oak tree and was holding on to one of those cross-bars, and he was there when Carpenter shot him.. My husband didn’t reach around to pick up the gun and didn’t offer to fight Bond, and didn’t tell Bond that he would fight him, and didn’t tell him that he would cut him or shoot him. He didn’t have a club in his hand. He didn’t have any rock to go and strike Mr. Bond. He didn’t have any knife at all. He didn’t offer to fight Mr. Bond at any time. I was right there all the time. ’ ’

The testimony of the girls as to what occurred at the camp in the main corroborates the statements of the widow.

But it is further insisted by appellant: 1. That “the evidence is insufficient to show that defendant fired the shot which caused the decedent’s death”; and- 2. It “totally fails to show that any conspiracy was entered into between Carpenter and defendant, or that the latter aided and abetted the former in the commission of the homicide.”

As to the first proposition it is said: “Of the three shots fired, Carpenter fired two and defendant one. One of the three missed the decedent, another inflicted a flesh wound merely, while the third passed through the most vital parts of the body, causing instantaneous death.” It is claimed that there is no evidence to show that the defendant fired this shot which passed through the body. In arguing the importance of this feature of the case appellant says: “Even had the authorship of the fatal shot been merely one of a series of incidental or secondary facts necessary to establish the defendant’s connection with the affair, instead of being, as it was, the paramount issue' in the case, it is certain that it would have had to be proved to a moral certainty, and in such a manner as to exclude every other reasonable hypothesis.” (People v. Phipps, 39 Cal. 333 .) But answering the last suggestion first, it should be sufficient to say that the rule announced is for the jury and not for a reviewing court. If we can find any evidence in the record from which a rational inference might be drawn that defendant fired the fatal shot, our inquiry as to this feature can go no further. It is, of course,

According to the transcript, the widow testified “D. M. Bond shot my husband. Shot him right here. (Showing.) My husband he hold him right here this way (showing), and he go back that way; and he hold this pole here and he come across and he hold him here, and he do this way (illustrating by holding hands on body), ‘Oh!’ And he do that way. (Showing.) ” It thus appears that the witness illustrated

But again, it will not be disputed that the jury had a legal right to reject a portion of the testimony of the defendants and also of the witnesses for the prosecution. The jury, basing their conclusions upon the evidence, may have adopted substantially the following theory: That the Indian assaulted Carpenter at the creek, as testified to by the latter; that defendants harbored resentment in consequence of Junior’s violent conduct; that, after arriving at the camp, Carpenter, without even the appearance of justification, drew his pistol and made an effort to shoot the deceased; that the latter seized the pistol and while the two were struggling for its possession Bond, understanding the situation,. deliberately fired a shot which contributed to the fatal result and caused the Indian to relax his hold upon the weapon and thereupon Carpenter fired the last shot, which was followed immediately by the death of Junior. Upon this theory it could not be doubted for a moment that appellant could be convicted" properly as an aider and abettor of the crime. “The word ‘aid’ does not imply guilty knowledge or felonious intent, whereas the definition of the word ‘abet’ includes knowl

There can be no controversy about the doctrine announced in Wilson v. State (Tex. Cr.), 24 S. W. 409 , and other similar cases cited by appellant, that “If two or more persons eon-., ceive the intention at the same time to strike B. without previous concert, and do strike him without knowing the intention of the other, each would be responsible for his o-wn acts, but would not be an aider or abettor of the other. To apply this rule to this case, if appellant, without concert with Sam, and without knowledge of his intentions, conceived the intention to and did strike Bagley with a rock about the time that Sam stabbed him, he would not be responsible for said act; nor would he, in striking Bagley, be aiding or abetting Sam in his acts. But, notwithstanding this, if appellant assaulted deceased with the rock he would be responsible for the homicide; or, if the blow with the rock contributed materially to the death of Bagley, he would also be responsible.’’

Appellant’s contention as to the insufficiency of the evidence cannot be upheld, therefore, for the reason that a rational conclusion may be drawn therefrom—either that he unjustifiedly fired the fatal shot, or wrongfully contributed to the death of the deceased, or that Carpenter made a felonious attempt to take the Indian’s life, and appellant, with knowledge of such assault, aided in the consummation of the unlawful purpose and therefore became an aider and abettor of the crime.

Appellant complains because the court refused to charge the jury “That if no aiding and abetting by the defendant in the homicide, and no conspiracy between him and Carpenter had been shown, and if there existed a reasonable doubt as to which of them inflicted the wound from which the deceased died, the defendant was entitled to be acquitted. ’ ’ Nothing, however, seems to have been omitted that was necessary for the complete information of the jury. All the material elements of every degree of crime included in the charge were clearly defined and the jury were instructed that “Unless you believe from the evidence to a moral certainty and beyond a reasonable doubt that Robert Junior was killed by the defendant D. M. Bond and by no other person;

The court declined to give to the jury the definition of conspiracy. There seems to have been no necessity for such is the one to which we have already referred, and we mtist definition. The only instruction in which the term appears assume that the average juror would know what the court meant by the expression “had conspired together to commit crime.” It is not open to the imputation, as claimed by appellant, “that the fact that the defendant and Carpenter had formed a joint or common purpose of arresting law breakers and of enforcing in a lawful manner the law passed for the protection of fish would have made them conspirators and liable for the acts of each other while in the execution of that purpose.” The instruction, by necessary implication, excludes from consideration any agreement except one

It is further claimed that the instructions upon the question what would constitute justifiable homicide when committed by an officer in making an arrest were confusing and conflicting. The instructions complained of were: “A peace officer may arrest anyone committing a misdemeanor in his presence, without a warrant. In the making of the arrest, or in preventing an escape after the arrest, the officer, when resisted by the offender, is not bound to retreat; but may use such physical force as is apparently necessary on the one hand to effect the arrest 'by overcoming the resistance he encounters, or on the other to subdue the efforts of the prisoner to escape, but he cannot in either case take the life of the prisoner] unless it appears to him as a reasonable man, from all the circumstances, that the taking of the life of the prisoner is necessary to prevent the infliction of great bodily injury upon himself or upon those acting with or under him,

The contention is that these instructions are irreconcilably conflicting inasmuch as in the former the jury were told that “the defendant was not justified in killing the decedent merely because this was necessary in order to arrest him,” and in the latter that “if the decedent had committed a public offense in the defendant’s presence, the latter had a right 'to use all the force that was necessary or appeared to him as a reasonable man to be necessary to overcome all resistance, even to the taking of life.’ ”

The distinction made by appellant is, we think, more fanciful, than real. "Wie must, of course, read the whole of the instructions together and so considered there is no conflict whatever. The proposition of law expressed in both of these instructions is that where the officer is authorized to make an arrest he may use whatever force is necessary to accomplish his purpose and overcome whatever resistance may be offered. Unless the resistance, however, should be of such a nature that it appeared to the officer as a reasonable man that he, or anyone acting with or under him, was in danger of receiving great bodily injury, he would not be justified in killing the prisoner. The reason is plain; in such case he could overcome the resistance without killing the prisoner. A resistance that does not threaten great bodily injury can and should be overcome without a homicide. Therefore he may use all the force “that appears to him as a reasonable man to be necessary to overcome all resistance, even to the taking of life,” as stated in the second quoted instruction, but this claim of resistance is not to be a mere subterfuge; the resistance must be such as appears to the officer likely to inflict great bodily injury upon himself or those acting

But if there was any inconsistency or confusion in the quotations already made, it is entirely removed by the concluding portion of the second instruction, which we deem it unnecessary to set out in full. Even if we were to concede that, the court used an inaccurate or incomplete expression in the foregoing we would still be required to hold that it was without prejudice, as when all the charge is considered we find that all the conditions concerning which the evidence relates and under which the right to take the life of deceased existed were fully and completely expressed. (People v. Turpin, 10 Cal. App. 526 , [ 102 Pac. 680 ].) The theory of the defense, as formulated by counsel for appellant, was fully presented to the jury in the instructions, and we see nothing to criticise therein.

The court did not err in admitting in evidence the remnants of the shirt worn by deceased at the time of the homicide. It had been in possession of the sheriff from the time it was removed from the body, and the only objection made was that the proper foundation had not been laid. If appellant was relying upon the claim that it was not shown to be in the same condition as at the time it was removed, he should have called that to the attention of the court or interrogated the witness concerning it. It was probably an unnecessary piece of evidence. There is nothing in the record to show that there was anything in the appearance of the cloth to throw any particular light upon the tragedy, but it is clear as anything can be that we cannot say that the introduction of the fragment of the shirt influenced the jury against appellant. As far as we are advised, the effect could have been no different if a portion of any other garment worn by the deceased had been received in evidence. The ease is not at all similar to the one cited from Mississippi, where-the skull of the deceased was produced without sufficient preliminary proof.

Appellant assigns error in the ruling of the court “allowing Sheriff Boyd to testify that the bullet entered the left side of deceased, passed through his body and came out on the right side.” The objection was that the “proper foundation had not been laid and the witness was not properly

One Bramlett, a witness for the prosecution, was permitted to give his opinion that deceased was seventy years of age. The rule seems to be that “Age is provable by the inference of any competent observing witness. This is true both in the case of human beings, whether they be adults, minors or children, and in the case of animals or inanimate objects.” (17 Cyc. 98.) The witness showed he was qualified by testifying that he had known the deceased for something like twenty-five years. The jury, though, probably attached no importance to his testimony, as it was very much weakened on cross-examination, and the widow testified that her husband was strong enough to whip either of the defendants.

The court overruled the objection to the question asked in the cross-examination of the witness Pedlar: “Do you know whether that fish ladder was in working order at the time you were there?” The contention of appellant is that “This cross-examination and the introduction of evidence as to the condition of the fish ladder must have prejudiced the defendant’s case to the extent of leading the jury to believe that fishing within the prohibited distance of a fish ladder which was not in working order would not be a misdemeanor. ’ ’ But, as pointed out by the attorney general, this inference was obviated by the instruction of the court that the defendants were deputy fish commissioners, and while acting in such capacity “they placed deceased under arrest for the violation of the game and fish laws of California committed in their presence. ’ ’

One Anderson had been arrested by defendants on August 19th for violating the fish law, and by him appellant sought to show that he had been properly treated by the officers.

Appellant complains because the court, without requiring the record to be shown the witness, permitted the cross-examination of the codefendant Carpenter as to his failure to testify at the coroner’s inquest and the preliminary examination concerning certain matters related at the trial. The questions were: “I will ask you, Mr. Carpenter, if at the coroner’s inquest, when you were detailing this affair before the inquest, if you testified to anything before the jury about hearing voices upon the bank?” and “Now, I will ask you if at the coroner’s inquest you testified to anything about the peddler fishing there?” and “Now, I will ask you if both at the preliminary examination of this case and at the former trial of this case, if you didn’t place my hand upon this gun and testify that that was the manner in which the Indian grabbed it?”

As to the first two, they were merely preliminary for the purpose of impeachment and were properly allowed, although the transcript of the testimony of the witness was not first shown him. (People v. Hart, 153 Cal. 261 , [ 94 Pac. 1042 ].) It is also clear that the matter is of so little importance and the answers were so satisfactory that no prejudice could possibly have resulted. It is not contended that the incident referred to in the last question was photographed, and we must assume that the record would have afforded no assistance. As to this, it may be said also that no unfavorable inference could have been drawn from the explanation of the witness.

Witness Carpenter was cross-examined as to whether he put his hand upon the shoulder of deceased when arresting him, and also whether the fish ladder was in working order. Appellant contends that this may have created in the minds of the jury an erroneous impression that the arrest of de

The objection that they were not proper cross-examination to the questions asked of the defendant as to an agreement to see the deceased and his family home, and in reference to the distance from the right hind wheel of the wagon to the tree, was properly overruled. Besides, they related to trivial matters and the answers could not possibly have influenced the result.

The record has received our careful attention to the end that no injustice might be done, but, in our opinion, it cannot be said that the appellant did not have a fair trial or that there is not substantial support for the verdict.

To interfere with the conclusion of the jury and of the trial court would be, as it appears to us, a violation of the well-established principles governing the action of appellate tribunals.

The judgment and the order are affirmed.

Chipman, P. J., and Hart, J., concurred.