People v. Maughs

The jury returned a verdict against the appellant of murder of the first degree, and, in the exercise of the discretion conferred upon it by section 190 of the Penal Code, fixed the penalty at imprisonment for life.

After the presentation and denial of a motion for a new trial, the defendant was, in accordance with the terms of said verdict, sentenced by the court to imprisonment in the state penitentiary for the term of his natural life.

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

This is the second trial of the cause, the first having resulted in the conviction of the defendant of murder of the first degree and the imposition of a judgment involving the death penalty, but the judgment and order therein were reversed upon appeal to the supreme court and the cause remanded for a new trial. (People v. Maughs, 149 Cal. 255 , [ 86 Pac. 187 ].)

The defendant, for some time prior to the homicide, had been in the service, as a sort of general “utility man,” of the deceased and one B, E. Cole, on a “ranch” in Merced county, not far from the line dividing said county and San Benito county, which the latter were working as copartners. The duties of the defendant (who at the time of the homicide was between fifty-five and sixty years of age) were to look after and care for the chickens, keep the fences inclosing the ranch in repair, cook the meals, and, in short, to perform all such other service as ordinarily come within the duties of a domestic servant.

Cole and Zander, during the morning hours of the day upon which the killing occurred, had been going over the ranch, repairing fences which had been through some cause broken down. While the partners were so engaged, a neighbor came along, and, addressing them, said that he had informed Maughs “about that break” in the fence two or three days before. This seemed to enrage Zander, who referred to Maughs in opprobrious language. Near the noon hour the deceased and Cole returned to the house. After they put their horses in the stable, Zander hastened, apparently in a state of anger, to the house, Cole remaining in a vacant lot near the bam. Zander, upon reaching the interior of the house, proceeded to chide Maughs for neglect in repairing the fence and for not getting “the cattle out of the horse corral.” The defendant’s version of what occurred in the house is to the effect that Zander called him (defendant) vile names, threatened to do him personal violence, and then started to leave the house in a state of intense anger and excitement, but had gone only a short distance when he turned around and ordered Maughs to “roll his blankets” and “get off this ranch,” to which latter suggestion defendant replied, “All

When the shooting occurred Cole and a man named Gallagher were sitting on a wagon tongue something over one hundred feet from where the deceased and the defendant were quarreling and from where the fatal shot was fired. A portion of that side of the porch, to the right of which Cole and Gallagher were sitting, was inclosed with trellis-work, over and about which a thick vine, extending from the ground to the top of the porch, had grown. There were also between the point at which Cole and Gallagher were sitting and the porch on which the shooting took place two chicken fences, about six feet high, made of pickets set together closely.

Gallagher testified that, while he heard the voices of the deceased and the defendant just prior to hearing the shot, he paid no attention to what they were saying, and he could therefore give none of the language or words .used by them. Cole testified that he was interested in the quarrel and could hear distinctly what was said. He testified that he saw Zander go to the pump located on the back porch; that he judged from Zander’s voice that he was very angry; that he heard Maughs go into the kitchen from the sitting-room, and before he got to the door he said he was “getting damn tired of this noise”; that he had heard enough of it, “and he says, ‘Let this be your last word,’ and shot, and the witness stated that immediately following the shot he heard Zander “hit the floor,” by which he meant that he heard the sound made by.

The facts thus narrated are gleaned, it is to be observed, from the testimony of the two principal witnesses—Cole for the people and the defendant in his own behalf.

There is no serious claim that the evidence is insufficient to justify, the verdict. It is, however, contended that there are many errors in the record, any one of which is of sufficient force and importance to entitle the defendant to a new trial. These alleged errors are involved in the rulings of the court upon questions of the admissibility of testimony and in the giving and rejection and modification of instructions.

1. Appellant insists that the court erred in its rulings disallowing challenges to jurors Hardman and Phenegar on the grounds of actual bias. Bach of these jurors, it clearly appears from the record, declared that he had read in the local newspaper accounts of the homicide and of the verdict of the coroner’s jury finding that the crime of murder had been committed, and had also heard the case discussed by neighbors and acquaintances, and from these had formed an opinion upon the question of the guilt or innocence of the defendant. Bach stated that, notwithstanding the opinion thus formed, he could and would try the case fairly and impartially, and regardless of such opinion, and return a verdict in accordance with the evidence adduced at the trial and tha instructions of the court. It does not appear from the examination of these jurors that either ever discussed the' case with anyone claiming to know the facts or with any of the witnesses who testified at the trial. The rule of law in this, state—so well and generally understood that it is even familiar to laymen—is that the formation and expression of an opinion upon a matter to be submitted to a jury, founded upon public rumor, statements in public journals, or common notoriety, do not disqualify a person from serving upon such jury, if it appears to the court, upon his declaration, under oath or otherwise, that he can and will, notwithstanding such an opinion, act impartially and fairly in the trial and determination of the questions submitted to him. (Pen. Code, sec. 1076.) And even where the answers of a juror upon his voir dire involve conflicting statements bearing upon the ques

2. It seems that, upon his arraignment, the defendant, in addition to entering a plea of “not guilty” to the charge alleged in the information, also interposed the pleas of “former acquittal” and “once in jeopardy,” and that at the trial the clerk of the court,. upon reading the information to the jury, stated to the latter that the defendant had entered a plea of “not guilty” to the information, but omitted to state that the special pleas mentioned had been also interposed. After a number of witnesses had given testimony for the prosecution, and before the people closed their original case, the district attorney called the attention of the court to the omission by the clerk to state to the jury said special pleas. Thereupon the court, against the objection of counsel for appellant, directed the clerk to .state to the jury all the pleas interposed by the defendant. It was undoubtedly the duty of the clerk to have stated to the jury all the pleas of the defendant to the crime charged against him in the information before any evidence was received (Pen. Code, sec. 1093, subd. 1), and failure to do so was error. But the record before us discloses that such omission here did not constitute prejudicial error. There is not the slightest proof in the record addressed to the issues tendered by the special pleas; nor was there any attempt to introduce proof in support of such pleas. Under these circumstances, the defendant could not, of course, have been prejudiced by the oversight.

3. It is complained that the appellant suffered serious harm by the separation of the jury during the progress of the trial after it had been ordered by the court into the custody of the sheriff, the claim being that such order was made under the authority of section 1121 of the Penal Code. The record shows that before the panel was completed—that is, before twelve jurors had been sworn to try the case—the court made an order, to which counsel for defendant objected, that the sheriff take charge of the jury. After some colloquy between

We cannot refrain from here remarking that it is very evident that the attorneys for the people and the learned judge of the trial court either did not before or during the trial of the present case read the opinion of the supreme court reversing the first trial hereof, or, if they did, paid little heed to what the court has to say, in language as clear as crystal, upon the subject now under consideration. If they had read the opinion even hastily it would at least seem as if no such chances for a reversal of the present appeal would have been taken as are apparent from the slip-shod course pursued with reference to the order directing the sheriff to take charge of the jury. It is often the case, perhaps, that trial judges have little time to read the opinions of the higher courts, and do not do so until such cases are cited upon some particular question pending before them. But practicing lawyers are supposed to watch the reported eases, particularly where they dispose of questions with which they have to deal in some impending trial. It was, therefore, the duty of the state’s attorneys in the case at bar to have called the attention of the court to the remarks of the supreme court in this same case, relative to the exercise of the power by the court vested in it by section 1121 of the Penal Code. District attorneys should also remember that, while zeal is a very excellent quality in a prosecuting officer, it, perforce, becomes a menace rather than an advantage to a successful prosecution of a criminal case when it succeeds in usurping the place of sound and sane judgment. With the opinion in the Maughs case before them, the prosecuting attorneys and the court can suggest no conceivable excuse for the occasion of the present discussion in this case, and but for the fact that we do not consider the action of the court in this respect, under the circumstances as disclosed by the record, prejudicial to the

4. The contention that too much latitude was allowed in the cross-examination of the defendant is, we think, devoid of merit. After answering a few preliminary questions, the defendant was asked the following question by his attorney: “Now, take at the very instant the fatal shot was fired, why did you shoot Charlie Zander?” The defendant replied: “Well, he came at me with a knife and said he would cut my damned throat, and I thought he would do me some great bodily harm or "kill me, and I fired at him to keep him from killing me.” At the conclusion of this answer, the defendant was turned over to the prosecution for cross-examination. It was no doubt the assumption of counsel for the defendant that such brevity in the examination in chief would curtail the cross-examination or prevent an inquiry through cross-examination into all the circumstances immediately attending the homicide. Objection was, therefore, made to nearly every question propounded to the defendant by the district attorney, and the rulings of the court disallowing certain objections made to the extended cross-examination by the people are assigned as error.

We think the questions asked the defendant by the district attorney were well within the sphere of legitimate cross-examination.

Section 1323 of the Penal Code provides, as does also section 13 of article I of the constitution, that a defendant in a criminal action or proceeding cannot be compelled to be a witness against himself; but the code section mentioned also provides that if a defendant in such an action or proceeding “offers himself as a witness, he may be cross-examined by the counsel for the people as to all matters about which he was examined in chief.” The cross-examination of the defendant in the case at bar involved an inquiry into all the pertinent circumstances immediately leading up to and connected with the act of killing. This course, as we have stated, was allowable under the section of the code to which we have referred as interpreted by the supreme court in many cases. (People v. Rozelle, 78 Cal. 91 , [ 20 Pac. 36 ]; People v. Mullings, 83 Cal. 138 , [ 17 Am. St. Rep. 223 , 23 Pac. 229 ]; People v. Gallagher, 100 Cal. 475 , [ 35 Pac. 80 ]; People v. Soeder, 150 Cal. 12 , [ 87 Pac. 1016 ].) In People v. Rozelle, 78 Cal. 91 , [ 20 Pac.

The defendant admitted killing Zander, but claimed that the act was in necessary self-defense. On his examination in chief he declared that the act was committed in the defense of his person and life. This statement by the defendant was a mere bald statement, unaccompanied by a recital of any of the circumstances under which the homicide occurred, that the act was necessary for the protection of his own person or for the preservation of his own life. In fact, the answer amounted only to a conclusion drawn by the defendant from the circumstances of the homicide as he claimed to view and understand them. The people had a right to learn, if they could, by a cross-examination of the defendant, whether he had formed a correct conception of the circumstances under which he took the life of Zander. They were entitled to an opportunity to ascertain, through cross-examination of the accused, whether or not his statement carried with it the truth by inquiring into all the circumstances of the “matter about which he had testified.” And we have been unable to find any question thus propounded to him and to which objection was made involving an inquiry into any other matter than that “about which he had testified in chief.” His answer to the single question asked on direct examination involved his whole case—his complete defense—and therefore opened up for full and thorough exploration by the people the en

5. The court did not err in permitting, over the objection of appellant, certain witnesses to give testimony in the people’s original case concerning the alleged crippled condition of the left arm of the deceased. The claim is that the testimony was admissible only as rebuttal, and in that case only upon the interposition by the defendant of the defense of self-defense. The order of proof is largely in the discretion of the trial court. (Pen. Code, sec. 1094.) But we are not sure but that the testimony was properly admitted in the prosecution’s chief case, for prior to the reception of this evidence, the declarations of the defendant immediately after the homicide, relative to the shooting, had been received in evidence, and, among other things, it appeared therefrom that the accused claimed that the deceased rushed toward the defendant threateningly with an open knife in his left hand and his left arm raised in a menacing attitude. The object of the testimony with reference to the condition of the deceased’s left arm was to show that he could not raise said arm in the position described by the defendant to the witnesses who testified to his declarations. But, admitting that the testimony was irregularly received as a part of theprosecution’s original case, if it was, nevertheless, proper in rebuttal, the fact that it was introduced out of order would not justify a reversal of the ease. (People v. Arrighini, 122 Cal. 124 , [ 54 Pac. 591 ]; People v. Crimes, 132 Cal. 34 , [ 64 Pac. 101 ].) The testimony was clearly relevant in view of the defendant’s testimony.

It is also urged that the court erred in allowing the witness, Frank French, to testify to statements made by the defendant concerning the circumstances connected with the killing before the corpus delicti had been proved. What we have heretofore said with reference to the order of proof resting in the sound discretion of the trial judge is pertinent and applicable to this point. The rule appears to be settled in this state that, while the corpus delicti should be the first point to which the evidence should be addressed, the order of proof is usually in the discretion of the court, and, unless it clearly appears that the defendant has been prejudiced by the manner in which that discretion has been exercised, it will not justify reversal of the judgment. (People v. Jones, 123 Cal.

6. A model, representing the porch upon which the fatal shooting occurred, was introduced in evidence for the purpose of illustrating the testimony of the witnesses. The model was, except in certain particulars, a faithful representation of said porch. The excepted “particulars” to which we refer included an omission to show by the model some growing vines about the trellis-work at the side of the porch, to the right of which some one hundred feet distant, as we have seen, Cole and Gallagher, witnesses for the people, were sitting on a wagon tongue when the shooting took place. The model omitted also to indicate a tree and two fences which were located between the porch and the point where Cole and Gallagher were in conversation when the quarrel was going on and the shot fired. The specific objection to the model was that it might lead the jury to believe that there were no obstructions to a clear view of the porch from the point at which Cole and Gallagher were sitting, and that they could therefore see all that was transpiring on the porch between the defendant and the deceased. The county surveyor testified that he made the model, and that it represented an accurate reproduction of the porch, except in the particulars mentioned, and Mr. Ostrander, for the prosecution, upon offering it in evidence, explained the extent to which the people desired to use it as follows: “We are not introducing it for the purpose of showing that Cole or anybody else could see from the point where they were what transpired on the porch. We are offering this for the purpose of showing the porch as it then existed, the distances and the material objects on the porch. We are not offering it for the purpose of showing that the testimony of Cole or anybody else is- true.” And, as limited to the purpose as thus stated, the court admitted it, and it appears to have been confined, in its use by the people, to that purpose alone. We do not think the court erred in admitting the model under the circumstances disclosed by the record. There were photographs received in evidence, upon the motion of the defendant, showing an accurate representa

7. We have carefully examined the instructions, in the giving, rejection and modification of which it is declared the court erred to the prejudice of the defendant, and we think there is no foundation for the criticisms urged against the action of the court with respect thereto. The charge of the

The part of instruction No. 13 as given by the court, complained of by appellant, is certainly subject to the criticism that it is rather ambiguous. But what the court was trying to say to the jury in the criticised part it clearly enough stated in the latter part of the instruction. The instruction is based on subdivision 2 of section 2061 of the Code of Civil Procedure, and when given in the exact language of the section, as it should be given, if at all, involves a mere commonplace. It ought not to be necessary to tell a jury composed of men of average intelligence that they need not accept the testi-' mony of any number of witnesses if such testimony does not convince them of the truth of the fact to which it relates, and this is in effect all that the language of the subdivision of the section from which the instruction was taken declares. We cannot perceive how the appellant could have been prejudiced by the instruction as given.

The same may be said of instruction No. 27, requested by the defendant and refused by the court. The first part of this

We have thus reviewed the record at some length. There are other alleged errors pointed out in the briefs of appellant, but we have carefully examined them, and as a result of such examination have concluded that they do not merit extended attention. The alleged misconduct of the district attorney and his assistant in the opening statement of the case and in the final arguments thereof is not, conceding it to be, strictly speaking, misconduct, of such a serious nature as to call for a reversal. The complaint against the alleged misconduct of the assistant prosecuting attorney in referring in his argument to the alleged attempted flight of the defendant immediately after the homicide is disposed of in what we have said relative to the instruction upon that subject. The questions asked certain witnesses by the district attorney as to whether they had heard the testimony of another witness at the former trial of the case describing the condition or situation of the body of the deceased a few hours after the homicide elicited replies to the effect that either they did not hear such testimony or could not recall it if they did. Manifestly, the replies were harmless, even if the questions were improper, and there is nothing in the phraseology or form of the questions themselves involving prejudicial insinuations or innuendoes against the defendant.

For the reasons expressed in the foregoing, the judgment and order appealed from are affirmed.

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