People v. Cramley

Defendant was charged with having, on the twenty-third day of November, 1912, killed and murdered one Joseph W. Pear. Upon trial being had he was found guilty of the crime of manslaughter. Thereafter a motion for a new trial was made and denied, and judgment followed. This appeal was then taken from the order denying the motion for a new trial and from the judgment.

On the day of the alleged homicide deceased was visiting at the house of one Nellie Greaney at Pasadena. Mrs. Greaney occupied apartments consisting of three rooms. The wife of deceased, during the absence of her husband, had resided with Mrs. Greaney, but at the time Pear met his death his wife had gone to the county of San Bernardino. It may be gathered from the evidence that Pear had left Pasadena sometime before the twenty-third day of November, intending to go to Arizona, but had turned back after reaching Johannesburg. He did not find his wife at home when he returned, but called upon and conversed with Nellie Greaney, being well acquainted with that person. The defendant was also an acquaintance of both Nellie Greaney and Pear. On the evening of November 23d, the defendant and Nellie Greaney came to the apartments about 6 o’clock, and shortly thereafter Pear came in. Nellie Greaney testified that Pear had some whiskey and that

A great many alleged errors occurring during the course of the trial are assigned as grounds for a reversal of the order and judgment. Among other instructions the trial judge gave the following: “If, by the evidence adduced in a criminal action, there is raised in the minds of the jury, upon any hypothesis reasonably consistent with the evidence, a reasonable doubt as to any fact necessary to a conviction, that doubt must be resolved in. favor of the defendant.” It is complained that this instruction was incomplete in that it did not set out or specify what facts were necessary to warrant a conviction. The charge as contained in the information was read to the jury in other instructions given by the court, and the jury was told that every material allegation contained in the information was required to be established by the proof beyond a reasonable doubt, before a verdict of guilty could be rendered. Considering these instructions in connection with the instruction to which criticism is pointed, no error appears.

The alleged error arising upon the failure of the court to give the instruction offered by defendant to the effect that “the presumption of innocence is one to which the law is partial,” and “that where conflicting presumptions supervene, the presumption of innocence must be deemed superior,” must be construed in a similar light. The offered instructioh was taken from a standard text-book and no fault can be found with the statement of the law therein contained, but the instruction as offered was lengthy and considered in its entire substance was argumentative, and might well have been refused on that ground. But the court very fairly and fully covered the matters sought to be impressed upon the jury by instructing in positive terms that the presumption of innocence must be overcome by the prosecution to the extent that all material facts should be established to the satisfaction of the jury and beyond a reasonable doubt. Further, the evi

The proposition that the jury should he satisfied beyond a reasonable doubt and to a moral certainty that the death of Fear was not “occasioned by natural causes, by accident, nor by the act of deceased himself, ’ ’ as set forth in an instruction offered by defendant and refused, was fully and carefully covered by the instruction of the trial judge, No. XVII. Because the court may employ different language in its instructions from that which defendant may desire shall be used in presenting the same matter to the jury, is not good ground for objection, and the complaint here rests upon no other ground.

The court of its own motion read to the jury certain instructions defining the crime of manslaughter. This course appellant asserts constituted prejudicial error. The decision of the case of People v. Huntington, 138 Cal. 261 , [ 70 Pac. 284 ], is cited in support of that contention. The facts of the case of People v. Huntington, were very different in character from those presented here. In the Huntington case the accused was charged with the murder of a young woman upon whom it was claimed he had committed an abortion. The defense was that the defendant did not commit the abortion, but treated the deceased for some disease and that she had died under an operation, “probably from the effects of an anaesthetic.” The trial judge in that case injected into it a new theory and one wholly without the contentions or claims of the prosecution, when he instructed the jury that if they found that defendant was treating the deceased for some ailment and that he so treated her “without due caution or circumspection,” they might find him guilty of manslaughter. In the light of the facts and the contentions made by the people and defendant at that trial, the error of the court becomes apparent. Not so here. The defendant stated upon his plea that he was not guilty and sought to have it appear that the circumstances surrounding the death of Fear indicated that the latter had destroyed himself. The jury did not so construe the evidence, and having determined that Fear was unlawfully killed by the defendant, they were justified, and it was their duty

Again, appellant complains because the court refused an instruction touching the matter of motive for the commission of the offense, and particularly because of the refusal to instruct that “it is in cases of proof by circumstantial evidence that the motive often becomes not only material but controlling, and in such cases the facts from which motive may be established must be proved.” It is a matter for comment that counsel for appellant could not have gleaned from the five typewritten pages covered by the one instruction on the subject of motive, which was given by the trial judge, enough to comprehend so much as was pertinent of the idea which they desired to have stated in the brief four lines of the refused instruction. Moreover, it would not have been proper to have told the jury that under the evidence in this case, much of which was direct and not by way of circumstance, that proof of express motive was controlling.

Contentions are made that in other particulars the charge to the jury contained erroneous statements of the law; also that the court erred in refusing other instructions offered. These contentions appear to be without merit. The trial judge gave very full instructions and fairly advised the jury upon all the propositions of law material to the case.

Appellant complains that the court erred in striking out an answer of the witness Nellie Greaney, elicited on cross-examination and in which the witness related the subject of a conversation that had occurred between her and deceased on the evening before the occurrence of the alleged homicide. This testimony was brought out in aid of the theory of defend

Questions asked of witness John Richardson as to interrogatories which he had put to Nellie Greaney shortly after the alleged homicide, were proper to be asked for the limited purpose which the court allowed them. The jury was specially instructed as to that matter.

Prejudicial misconduct of the district attorney is alleged: The statement complained of and referred to in the brief of counsel, where the deputy district attorney announced that he would be surprised if a brother of defendant answered “no” to a question asked for the purpose of showing conduct and statements inconsistent with the testimony given by him at the trial, was neither objected to as constituting misconduct, nor was the court asked to strike it from the record. No foundation to predicate error in such a case is shown. (People v. Shears, 133 Cal. 159 , [ 65 Pac. 295 ]; People v. Warr, 22 Cal. App. 663 , [ 136 Pac. 304 ].)

That the trial judge acted with bias which opposed the right of defendant to a fair trial, is an accusation made but not sustained by the record. When Mrs. Fear, the wife of deceased, was testifying, counsel for defendant asked her on cross-examination this question: “Mrs. Fear, are you the same Grace Fear that was arrested in Long Beach about three weeks ago for shoplifting V’ This question was improper to be asked, and the court was altogether justified, when sustaining an objection thereto, in adding: “and counsel is reprimanded for asking the question.” Again, when defendant’s counsel expressed a desire to make a statement in argument of a mat

The record exhibits a case where the defendant has had a very fair trial and where the evidence fully supports his conviction.

The judgment and order are affirmed.

Conrey, P. J.,and Shaw, J., concurred.