People v. Dean

Defendant appeals from a judgment whereby he was sentenced to life imprisonment for the murder of his wife.

Defendant and his wife were engaged in the business of conducting a restaurant in the city of Brawley, Imperial County. A woman by the name of Carrie Gunderson was in the employ.of defendant as a waitress. The presence of this woman was the cause of frequent quarrels between defendant and his wife, the former insisting that the conduct of the Gunderson woman was such as fc render her an unfit associate for his wife. His threats to discharge her had been met by statements from his wife that if he did so she would also leave. On the evening when tho. homicide was committed, defendant’s wife, with his consent, accompanied the Gunderson woman and two male companions upon an automobile ride, and, as we gather from the record, remained out much longer than defendant had expec I ed them to stay. Upon returning from the ride Miss Gunderson went to her room, adjoining that occupied by defendant and his wife, where she was joined by one of the men who had accompanied her on the auto ride. Defendant was in his room, and, immediately upon his wife entering, an altercation arose between them, during or following which three pistol shots were heard in the chamber so occupied by f.iom. The proprietor of the hotel immediately broke open the door leading to the room, when defendant’s wife was found in a dying condition with two pistol wounds upon her body; and a few minutes thereafter defendant was found about two blocks from the hotel with a bullet wound in his chest. No one other than defend

Upon the theory that evidence offered was sufficient to show that Carrie Gunderson, who had testified at the preliminary hearing of defendant, could not with due diligence be found in the state (Pen. Code, secs. 686, 869), her deposition taken before the magistrate upon the preliminary examination of defendant was, over defendant’s objection, read in evidence. This ruling is assigned as the chief error upon which a reversal is claimed. Waiving the question as to the alleged insufficiency of the evidence to show proper diligence in an effort to find the witness, without which the deposition was not entitled to be read, and as to the sufficiency of which we express grave doubts, the objection that the deposition had not been identified as a transcript of the evidence given by the witness before the magistrate at the preliminary examination of defendant upon being charged with the offense, and therefore incomepetent, irrelevant, and immaterial, should have been sustained. The deposition as offered in evidence is without title or cause. It commences: “Carrie Clark, called by the plaintiff and duly sworn, testified as follows,” followed by questions and answers. In his certificate the reporter certifies the same to be a correct report of the testimony and proceedings upon the preliminary examination of the above entitled 'cause, but inasmuch as the cause wherein the testimony was taken is not entitled, and for aught that appears in the record may have been the testimony taken in a case other than the one wherein defendant was charged with the crime for which he was being tried, such reference in the certificate is meaningless as an aid to'identification of the document. In People v. Ward, 105 Cal. 652 , [ 39 Pac. 33 ], the supreme court in discussing a like error committed by the trial court, said: “The transcript of the testimony should, moreover, be so authenticated that an inspection of it will show that it is testimony which was taken at the preliminary examination of the accused who is then on trial, and must not depend upon the memory of the magistrate or of the reporter. To allow oral proof at the trial for the purpose of showing against what defendant, or upon what charge, or at what time the testimony was taken reduces the proceeding from a record required by the statute, to the memory of the re

Notwithstanding the error and the fact that the evidence thus improperly admitted was material, though cumulative, we are constrained to hold, upon a careful examination of the entire record, that the defendant’s substantial rights were not prejudiced by reason of the erroneous ruling. The evidence properly received clearly tended, without substantial contradiction, to show that defendant’s wife was conducting herself in a manner which met with his disapproval; that she had resented any interference or efforts on his part to control her conduct; that he di sliked the Gunderson woman, with whom he had on the day of the homicide quarreled and threatened to discharge her; that his wife stated, if he carried out such threat, she also would leave; that after this quarrel he and deceased went for a baggy ride, he taking with him the revolver, during which ride he discharged all the shells for same then in his possession, and on his return home about five o’clock p. m., he placed the pistol, unloaded, in a dresser drawer in the room occupied by himself and wife; that later in the evening his wife expressed a desire to accompany this Carrie Gunderson arid two male companions on an auto ride, to which defendant gave his assent, but asked her not to stay long; that after the party left he went to bed but could not sleep; whereupon he got up, and having no shells with which to load his revolver, he went oat and at some inconvenience procured them; that these loose shells were placed in the drawer with the unloaded pistol; that upon his wife returning to the room, and after defendant had locked the door, he and his wife engaged in an altercation, during which he was heard to say, “I am going to kill you right now,” or words to that effect, immediately following which was the report of a gun in the room, followed by a woman’s scream.

The judgment and order denying defendant’s motion for a new trial are affirmed.

Conrey, P. J.; and James, J., concurred.