People v. Herges
Before: Hall
Synopsis
Criminal Law—Murder—Support op Verdict for Manslaughter— Concession by Defendant.—Where, under a charge of murder, the verdict was for manslaughter, and the defendant concedes that if his defenses were not believed by the jury, the evidence for the state would justify a verdict for murder, he cannot claim that it was insufficient to support the verdict, since it necessarily follows from such concession that it was not only sufficient, but.more than sufficient, to support the verdict for manslaughter.
Id.—Admission of Evidence Over Objection—Cross-examination— Order Striking Out—Instruction to Disregard—Possible Error Cured.—Where evidence was admitted over defendant’s objection, and after his cross-examination the court struck out the evidence, and instructed the jury to disregard absolutely all evidence admitted and afterward stricken out by the court, any error, if any, committed by the court in regard to such evidence was cured by the subsequent action of the court.
Id.—Cross-examination op Dependant as a Witness—Impeachment —Prior Conviction op Felony.—Where the defendant was a voluntary witness in his own behalf, the district attorney may ask him on cross-examination if he had not formerly been convicted of a felony, and when such conviction is admitted, it is proper to be considered by the jury upon the question as to the credibility of defendant as a witness in the ease.
Id.—Improper Discussion by District Attorney op Prior Conviction —Deference to Dependant’s Eeputation for Peace and Quiet-Action of Court.—Where the district attorney improperly discussed the prior conviction of defendant in reference to his evidence of reputation for peace and quiet, and upon objection the court ordered him to discontinue such reference, and instructed the jury to disregard what the district attorney had said about the prior conviction of defendant with such reference, the court thereby protected the defendant from injury which might have otherwise resulted from the district attorney’s conduct.
Id.—Requested Instruction as to Self-defense—Proper Modification.—A requested instruction concerning the right of the defendant, under the law of self-defense, to act upon appearances, that is apparent necessity, was properly modified by stating that the apprehension of injury or death must be such as any reasonable man would conceive to be imminent under the circumstances.
HALL, J.
Defendant was charged with the crime of murder and also with having suffered a prior conviction of the crime of burglary. Upon his arraignment he admitted the charge of prior conviction to be true, and upon trial was found guilty of manslaughter. This is his appeal from the judgment and order denying his motion for a new trial.
The first point presented in appellant’s brief is that the evidence was insufficient to justify the verdict of guilty of manslaughter. Upon this point appellant states his position as follows: “It is the contention of the appellant that the evidence presented cannot justify the verdict of manslaughter. That upon the evidence produced for the state the defendant should either have been convicted of murder or have been acquitted, and that the defenses of either self-defense or insanity, if believed by the jury, should have produced an acquittal. If not believed, the verdict should have been murder. ’ ’ In other words, appellant concedes that the evidence for the prosecution would have justified a verdict of guilty
[275]
of murder. If so, it necessarily follows that the same evidence was not only sufficient, but more than sufficient, to support a verdict for manslaughter.
(People
v.
Muhlner,
115 Cal. 303, [47 Pac. 128].)
The appellant also complains of the action of the court in permitting the introduction of evidence to the effect that decedent, shortly after the injury, stated in the presence of defendant that defendant stabbed him (decedent) without cause, and in refusing to defendant the right to conduct a preliminary examination as to the circumstances under which such statement was made, and the condition of defendant and the circumstances surrounding him when such statement was made. Subsequently, however, after full cross-examination of the witness by defendant, and before the introduction of any testimony for the defense, the court struck out the testimony objected to, and in pointed and explicit terms directed the jury to totally disregard it. The court again, in pointed and explicit terms, in its charge to the jury told them to “absolutely and completely and utterly” ignore and disregard any evidence that may have been admitted and afterward by order of court stricken out.
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