People v. Ashland

The defendant, by an information filed"in the superior court in and for San Joaquin County, was charged with the crime of murder.

The jury found him guilty of murder of the first degree and fixed the punishment at imprisonment in the state prison for the term of his natural life. (Pen. Code, sec. 190.)

This appeal is from the judgment and the order denying the defendant a new trial.

No claim is made that the evidence does not support the verdict, but the contention is that the court committed a number of prejudicial errors in the matter of giving, refusing, and modifying certain instructions.

The facts and circumstances leading to and attending the commission of the homicide are undisputed, and are substantially as follows: The defendant was a married man, whose family consisted of his wife, aged 24 years, and four children, aged respectively, six, four, and two years and the youngest eight months. With his wife and family he came to California from Philadelphia in the year 1909,- and a short time after his arrival in this state he purchased a twenty acre tract of land near a place called and known as Avena, in San Joaquin County. With his family he settled on this land. He owed something like six hundred dollars on the purchase price of the property and, after trying his hand at farming, he found that he was thus making no headway in the reduction of his indebtedness, and, therefore, in the month of June, 1911, went to San Francisco to seek employment, leaving his wife and children on the farm. He remained in and about San Fran

• Upon reading the letter, Ashland immediately left San Francisco for his home, reaching the latter place at about midnight of the day on which he received and read said letter. His wife then told him that one John Gofield (the deceased) who had for some time been in the community where the Ash-lands resided serving in the capacity of a United States squirrel inspector, had had sexual intercourse with her on two different occasions—the first time on the eighteenth day of December, 1911, and the second time a few days thereafter, or about Christmas day, and only a few days prior to the receipt by the defendant of the letter above referred to. She declared to her husband that the first sexual act with Gofield was forced upon her by threats and violence upon the part of the former; and that on both occasions the acts were committed on a cot situated in a bedroom in the defendant’s house and where the children of the defendant were sleeping on both occasions.

It was about two o’clock in the morning when Mrs. Ashland finished detailing the story of the conduct of Gofield toward her. The defendant thereupon left his house and went to the house of a Mr. Gannon, a neighbor residing a distance of about half a mile from the defendant’s home. He awoke Gannon and said that he desired to talk with him. Gannon opened the door and allowed the defendant to enter, whereupon the latter inquired whether there was a “squirrel man” boarding at his (Gannon’s) house. Gannon replied that there were two “squirrel men” who had boarded with him, but that they had

The defendant then returned to his home, reaching there after two o ’clock in the morning. At the hour of nine o ’clock, he went to the home of a Mr. Relph, another neighbor, whose home is situated about half a mile from that of the defendant. He excitedly told Mr. Relph the story of the disgrace of himself and children by the conduct of his wife, and shortly thereafter returned to his home. At about eleven o’clock on the morning of the same day (Dec. 31, 1911), the defendant took the train at Avena, about half a mile distant from his house, and went to the city of Stockton. Arriving at Stockton, he immediately proceeded to make inquiries as to the loca-' tion of the residence of Gofield and asked several persons whether they had seen him lately and where. Eventually he was given information as to the street and block in which Gofield’s residence was situated and he immediately repaired to that neighborhood. This was about five o ’clock p. m. He inquired of several persons whether they could point out to him the house of the deceased. It happened that a young son of the deceased overheard the defendant inquiring for Gofield and he thereupon volunteered to take the defendant to his father’s house. The lad, upon reaching the house, followed closely by Ashland, opened the door and stepped inside, closing the door as he did so, but the defendant immediately

Mrs. Gofield, wife of the deceased, was at her husband’s side when the fatal shots were fired. In her language may best be told what occurred following the first shot: “My husband kind of sank back and over again, and I was over my husband, and this man Ashland lowered the revolver and put it between my arm and side and shot my husband in the back, and I was down over him. . . . My husband turned and ran in the house and I turned to go, too, and Ashland ran between myself and husband. . . . My husband was running in the house, and I started to follow and just as we got in the hall we met my husband’s mother—she was living with us—and she caught my husband and they both staggered back into the dinning room, and he sank on the floor.”

Gofield died shortly thereafter, not having uttered a word after being shot.

After the shooting Ashland fled from the house and was followed by Gofield’s father-in-law, who was at the former’s house when the shooting occurred, and by one P. J. Murray, a policeman, living near by, who had heard the shots and hastened to Gofield’s house to learn the cause and the result of the shooting. Ashland ran down several streets, followed by Murray, who ordered him to stop and fired several shots in the air for the purpose of thus stopping him. Ashland, however, kept on running until he reached the office of the chief of police, located in the court house, into which he ran and there surrendered himself to the chief. The defendant was in a high state of excitement when he reached the police office and upon entering said that he was looking for the chief.

The foregoing statement embraces the principal and most important facts brought out at the trial, and, as stated, stand in the record uncontradicted.

The -defense set up at the trial was that of insanity, the claim and the theory being that the defendant’s mind was so wrought upon by the revelations of his wife’s unfaithfulness that it gave way to that degree that he was legally not responsible for his act in killing Gofield.

As stated, the objections urged against the judgment of conviction are founded entirely on what counsel for the defendant conceive to be errors seriously prejudicing the rights of the accused growing out of the instructions as given, refused, and modified by the court.

1. First among these assignments of errors is the criticism of the action of the court in refusing to give the instructions upon manslaughter requested by the defendant and thus restricting the jury to the consideration of the question whether the defendant, under the evidence, was guilty of murder of the first degree or of no crime whatsoever. It is vigorously contended that the defendant was not only entitled to have the jury enlightened by the court upon the elements constituting the crime of manslaughter, but that he was furthermore entitled to an instruction stating that that offense is included within the crime charged by the information and that it was within the legal province of the jury, under the evidence, to find him guilty of the lesser offense, if they were convinced beyond a reasonable doubt that he was guilty thereof and entertained a reasonable doubt of his guilt of

The court was perfectly justified, under the evidence, in limiting the jury to the return of a verdict of murder of the first degree, if they were sufficiently convinced that the defendant committed any crime at all.

The evidence conclusively established the fact that, unless Ashland was, at the moment he killed Gofield, insane to a degree that he was without intelligent volition or was mentally deranged to an extent that he could not appreciate or know the nature and quality and wrongfulness of his act in killing Gofield, such act was most unquestionably preceded by and the result of deliberate premeditation, and therefore constituted murder.

To have reduced the defendant’s act in killing Gofield from the grade of murder to that of manslaughter, it must have been made to appear that the homicide was committed upon a sudden quarrel or heat of passion. Obviously, under the evidence, the act was not perpetrated upon a sudden quarrel within the legal import of that phrase as used in connection with the law of homicide. Nor can it be said that it was committed in that “heat of passion” which will reduce an unlawful or felonious homicide from murder to manslaughter, for the act of killing did not take place while the deceased was actually engaged, in having sexual relations with the wife of the defendant, but was committed some seventeen hours after the defendant had been told by his wife that Gofield had had such relations with her. Undoubtedly he became very angry and perhaps much beside himself upon receiving this information and undoubtedly he remained in a high state of anger up to the time that he gratified his resentment of Gofield’s acts by killing him. And it is very probable that, had he not met the deceased after hearing of his wife’s infidelity, he would for many years thereafter and perhaps for the remainder of his life have been aroused to a state of intense passion whenever the acts of Gofield recurred to him; yet, no one would say that he could avenge the wrong committed against him by Gofield by killing the latter at any time he might happen to meet him after learning of such wrong and after the lapse of plenty of time for his passion to give way to the normal tranquility of his judgment and that the kill

Under these circumstances, while the fact that the defendant had been told and believed that the deceased had had sexual relations with his wife might tend to support the theory that he had, by reason thereof, temporarily lost his reason or had been so affected thereby as that his power of realizing and knowing the wrongfulness of his act at the time of its commission was destroyed, yet, if his knowledge of the wrong that Gofield had perpetrated against his marital rights had no greater or further effect than to arouse his passion, such knowledge would neither excuse his act nor reduce the homicide, committed some seventeen hours after obtaining that knowledge, to the grade of manslaughter; or, as this precise proposition is stated in the case of the People v. Hurtado, 63 Cal. 288 , 296, “it could not tend to neutralize the effect of the circumstances which tended to establish that the killing was done with the express malice or predetermination to take life which constitutes murder of the first degree.” Or, as is said in People v. Arnold, 116 Cal. 686 , [ 48 Pac. 803 ]: “While ‘the sight of adultery committed

The case of Territory v. Halliday, 5 Utah, 467 , [ 17 Pac. 118 ], is very similar to the present case with regard to the facts. In Utah, at the time that that case arose, among the acts prescribed by law justifying homicide was where the act of killing was committed in a sudden heat of passion caused by an attempt to defile a female relation of the defendant, or when the defilement had been actually committed. The evidence disclosed that the defendant was informed on Saturday, while away from home, of the adultery, and Sunday evening following he went around to the house of the deceased, a considerable distance, and, without any provocation at the time, shot the deceased while the latter was in bed, killing him. The supreme court of Utah held the killing to have been unjustifiable, saying “The provision of law quoted justifies a homicide committed by the husband in a sudden heat of passion caused by the attempt of the man slain to defile his wife, or caused by her defilement. But the killing must be without deliberation after knowledge of the fact. The law will not permit the husband to say that he slew the defiler of'his wife in a sudden heat of passion after deliberating upon the defilement for 24 hours.” (See 2 Bishop on Criminal Law, 2d ed., sec. 708.)

In this state the killing of a human being in heat of passion does not constitute justifiable homicide, but merely has the effect of reducing the crime to manslaughter, and no particular cause for such heat of passion is expressly prescribed by our law. The principle, however, stated and applied in the Utah ease is applicable to our law of homicide, and simply means, as we have shown, that, while the taking of life in the heat of passion will make the crime manslaughter, it will be conclusively inferred that the homicide was not committed in the heat of passion from the fact of the intervention of a long period of time between the provocation and* the act of killing. In other words, as is said by the Utah court in the Halliday case, the law will not permit the defend

There being, then, not the slightest element developed by the evidence which would give plausible color to the theory that the killing was committed in the heat of passion in the sense of that phrase as it is used in our law upon homicide, or under such circumstances as to make the crime manslaughter, the court, as before declared,' was right in refusing to define the crime of manslaughter or to tell the jury that, under the evidence, the accused might properly be found guilty of manslaughter. Instructions must be applicable to the facts and it is not error to refuse instructions which have no application to the facts as proved. (People v. Carroll, ante, p. 41, [ 128 Pac. 4 ]; People v. Turley, 50 Cal. 469 ; People v. Chavez, 103 Cal. 408 , [ 37 Pac. 389 ]; People v. Chaves, 122 Cal. 140 , [ 54 Pac. 596 ].)

2. Counsel makes the further complaint that the court in effect declared to the jury that the defendant was guilty of first degree murder in the following statement made by the court after defining, in the language of the Penal Code, the two degrees of murder: “From the foregoing provisions which I have read to you from the statutory law of this state, you will observe that a murder perpetrated by lying in wait, or by any other kind of willful, deliberate and premeditated killing, is murder of the first degree.” The specific criticism of the foregoing language is directed against the word “observe,” which, counsel seems to imagine, took on some such sinister or subtle meaning in the connection in which it was therein used as to have necessarily carried with it and thus to the jury a declaration by the court that the evidence established the defendant’s guilt of murder of the first degree. But we are unable to discover an erroneous or a harmful use of the word in the connection in which it was there employed. The court thus simply in' effect said to the jury that they would “take notice” or “understand” from the provisions of the code read to them that certain elements constituted murder of the first degree, and in so doing made no misstatement or said nothing that it had no legal right to say.

3. The defendant requested the court to give the following instruction: “I charge you that, when a defendant in a

4. It is next objected that the court erred by its disallowance of the following instruction, requested by the defendant: “The jury are instructed that mere probabilities are not sufficient to warrant a conviction, nor is it sufficient that the greater weight or preponderance of evidence supports the allegations of the information; nor is it sufficient that upon the doctrine of chances it is more probable that the defendant is guilty. To warrant a conviction of the defendant he must be proved to be guilty beyond reasonable doubt and that there is no reasonable theory upon which he can be innocent when all the evidence in the ease is considered together. ’ ’ The foregoing instruction, which is frequently given in criminal cases, is only a somewhat amplified form of explaining

5. The propositions enunciated in instruction “B,” submitted by the defendant and disallowed by the court, involved the rules as to the presumption, of innocence and the privilege of the defendant to refuse to testify, if he so elected, without jeopardizing his legal rights. Both these propositions were clearly explained to the jury by the court and the rejection of said instruction was, therefore, not improper or erroneous.

6. The act of the court in refusing to allow instruction No. 49, proposed by the defendant, is assigned as prejudicial error. Said instruction reads: “To constitute unsoundness of mind, it is not necessary that the person of unsound mind be a raving maniac—it is sufficient if a person of unsound

7. It is next insisted that the modification of the following instruction by striking out the word “merely” at the end thereof and reading it to the jury in its modified form constituted error prejudicial to the rights of the defendant: “While the law insists-and compels the prosecution to prove the guilt of a defendant of the crime charged beyond a reasonable doubt and to a moral certainty, the law only requires the defendant, whose insanity is one of his defenses, to prove his insanity at the time of the commission of the offense with which he is charged by a preponderance of evidence merely.” The instruction in the form in which the court submitted it to the jury accurately stated the rule as to the degree of the burden cast upon the defendant in the proof of insanity as a defense to crime. The addition of the word “merely” could have added no force to the statement of the rule, nor did its elimination from the instruction detract from or impair the force thereof. The law upon that subject is precisely as the court declared it to be and there is no case which holds that the word “merely,” as used in the instruction in the form in which it was requested by the defendant, or any other word of like import, is essential to a correct statement

8. It is lastly contended that the substantial rights of the defendant were grievously invaded by the course of the court in rejecting a lengthy hypothetical instruction purporting to recapitulate the testimony addressed to the theory or defense of insanity and concluding with the statement that if the jury believed that the preponderance of the evidence upon that question showed that the defendant, by reason of the facts set forth in said instruction, was mentally so deranged at the time he committed the act of killing that “he did not know the nature or the quality of the act he was doing or that he did not know that he was doing what was wrong, ’ ’ a verdict of acquittal should follow. We think the court very properly disallowed the instruction. It was based upon a hypothetical question propounded to and answered by a physician and contains, in addition to the fact of the confession to him by his wife of her relations with the deceased, a statement of some of the acts of the defendant with regard to his frugal mode of living for a long time prior to the homicide in order to enable him the better to support his family and pay his debts which facts, in themselves, would have no tendency to prove that degree of insanity which renders one altogether irresponsible for his acts and conduct, and which could only be regarded as important in the proof of any degree of insanity, where they were connected with proof of circumstances more potently pointing to insanity. Under the plea of insanity, the defendant’s economical mode of living for the purpose of supporting his family and paying for his home—economical, it appears, to the sacrifice of personal conveniences and comfort—was, of course, properly receivable in evidence as tending to show his attachment for and devotion to his wife and children and thus tending to disclose the keenness of his resentment against the conduct of the deceased with his wife, and, therefore, the probable effect of the latter’s story upon his mind; but to have emphasized these particular facts to the jury by rehearsing them in an instruction and saying in connection therewith that if the jury believed therefrom and that by reason thereof the defendant was insane to the degree of irresponsibility When

The danger in giving such instructions is obvious. Unless the facts directed to the theory upon which the instruction is founded are accurately stated, or in case the language of the instruction is not sufficiently explicit to show that it merely proceeds upon the assumption that the facts therein stated must be proven satisfactorily to the jury themselves, it is apt to be misleading and to produce mischief rather than promote justice or to bring about a proper consideration of the case and a just result. The better practice is as was adopted by the court in this case, viz.: to state the law fully and lucidly upon the subject of the defendant’s defense, and let the jury apply it to the evidence disclosing all the facts tending to establish such defense. The evidence received for the purpose of showing the mental condition of the defendant was not complicated—to the contrary, it involved a plain recital of the defendant’s mode of living up to the time of the homicide and of the confession to him by his wife of her infidelity. These facts were all that were shown to establish the defense of insanity and the jury, presumably men of average intelligence, could not have failed, under the clear instructions of the court upon that defense, to have given these facts just and intelligent consideration.

Counsel interposes a general complaint that the terms “murder” and “murder of the first degree” were used so frequently throughout the court’s charge that the jury must have inferred that the court was of the opinion that the evidence disclosed the defendant’s guilt of the crime charged. There is no merit to this complaint. The important questions presented by the evidence were the crime as charged and the defense of insanity submitted by the defendant, and there was little else of importance upon which it was proper for the court in its charge to address the jury as to the law

The defendant seems to have been accorded a perfectly fair trial, and, finding no prejudicial error in the record, the judgment and order are affirmed.

Chipman, P. J., and Burnett, J., concurred.