People v. Ernsting

California Court of Appeal Dec 1, 1910 No. Crim. No. 162.Published

Before: James

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Holding. The court reversed the defendant's murder conviction and ordered a new trial because the trial court committed prejudicial error by admitting improperly identified hearsay testimony and incompetent expert opinion evidence.

Issues

Whether the trial court erred in admitting testimony regarding statements made by an unidentified bystander without sufficient identification of the defendant.
Whether the trial court erred in admitting expert testimony regarding the nature of wounds that was speculative and outside the scope of expert opinion.
Whether the district attorney's improper argument to the jury constituted reversible error.

Disposition. reversed

Quotations verified verbatim against the opinion

“The admission of this testimony was prejudicial to defendant.”

“Because of the rulings made at the trial in the admission of testimony which, for the reasons given, constituted prejudicial error, the judgment and order are reversed and a new trial ordered.”

Synopsis

Criminal Law—Murder—Support op Verdict — Close Case — Error Deemed Prejudicial.—Although there is evidence tending to support the verdict of guilty of murder in the second degree, yet the case is such a close one, that if the jury had acquitted the defendant, it could not be said with assurance that such a verdict was not in accordance with the evidence, or that there had been a miscarriage of justice. In such a close case, any error in the reception or exclusion of evidence must be deemed prejudicial.

Id.—Evidence — Stoppage of Garbage Team Over Body—Statements op Bystander to Driver—Dependant not Identified—Prejudicial Error.—Where on a dark night a garbage team of three animals stopped over the body of deceased, who died shortly afterward, with his ribs crushed in, whereupon the driver descended and removed the body out of the way, and asked a bystander who approached, whose features he could not recognize, where an officer could be found, evidence of statements made by him in reply showing a harsh demeanor, and a brutal and unfeeling disposition, and unwillingness that an officer should be called, was prejudicially erroneous, where the only evidence of identification of defendant as such bystander at the trial was that he was “about the build, just the build.” This was not sufficient evidence of identification upon which to permit such proof.

lb.—Impeachment op Witness — Contradictory Statement at Preliminary Examination—Proof not in Record.—It cannot be said that the testimony of a witness was successfully impeached by evidence of a contrary statement at the preliminary examination, where such evidence is referred to but not incorporated in the record upon appeal, so that it can be considered upon appeal.

Id.—Improper Evidence op Medical Expert.—Where a question is asked of a medical expert which was not clear or intelligible, and the answer to which would involve the assumption of many different conditions, and also called for an opinion upon a matter not properly within the scope of expert testimony, the admission of an answer in reply thereto was erroneous.

Id.—Argument op District Attorney — Misapplied Inference prom Evidence—Prejudice not Shown—Instruction.—An argument of the district attorney based upon an inference from evidence misapplied by mistake was not prejudicial, where the court properly instructed the jury that inferences which they were entitled to make from the evidence must be founded on a fact legally proved.

Id.—Absence op Error in Instructions.—It is held that the instructions given covered sufficiently all matters upon which the defendant asked instructions, and fully and correctly stated the law to the jury.

JAMES, J.

Defendant was charged by an information of the district attorney with having, on or about the fifteenth day of August, 1909, in Los Angeles city, murdered one William Salter. The jury by their verdict found him guilty of that crime and of the second degree thereof. He was sentenced to serve a term of twenty years’ imprisonment. An appeal having been taken from the judgment, and from an order denying defendant’s motion for a new trial, the record of the proceedings had in the superior court is brought here for review. Insufficiency of the evidence to sustain the verdict and judgment, and errors claimed to have been committed by the trial court in admitting and refusing to admit testimony, and in giving and refusing to give to the jury certain instructions, are the grounds upon which a reversal of the judgment and order is sought.

William Salter at the time of his death was a man about seventy years of age, in good health, well preserved physically and .very active. He weighed nearly two hundred pounds. On the fifteenth day of August, 1909, he resided at a lodging-house at 618% South Spring street, in Los Angeles city. Near by, about one-half a block from the intersection of Spring and Sixth streets, a saloon known as “The Gordon Bar ’ ’ was located. This bar was situated in the block bounded by Main and Spring streets on the east and^west and Fifth and Sixth streets on the north and south, respectively. An alley running midway between Main and Spring streets from Fifth to Sixth streets divided the block into two sections

[710]

and furnished a passageway wide enough for teams to travel on between the streets last mentioned. This alleyway was paved down its central portion with rough cobble stones. At No. 515% South Main street was located the lodging-house where defendant resided. This lodging-house was kept by Mrs. Margaret E. Osgood, and it had a rear entrance which led from the alley referred to, through a brick archway, to a flight of stairs. As near as can he gathered from the record, the rear entrance to this lodging-house was distant at least one hundred and fifty feet from the intersection of the alley with Sixth street.

Salter was addicted to the use of intoxicants to excess, and on the fifteenth day of August had been drinking heavily. He appeared at the Gordon bar at about 10:30 or 11 o ’clock that night so much intoxicated that he was refused more liquor by the barkeeper on that account. At that time defendant was conversing with a friend named Bob Marquis near' the end of the bar counter. Salter, whom defendant had not been acquainted with theretofore, approached the latter and placed his arm about defendant and attempted to embrace him affectionately. Salter used terms of endearment toward Erusting and finally attempted to fondle him in a lewd manner, at the same time making by words a proposal that Ernsting permit the commission of a disgusting and degenerate act for the gratification of Salter. Ernsting repulsed the intoxicated man and treated the matter lightly. The acts of Salter in embracing Ernsting were observed by Gordon, the proprietor of the bar, and Bob Marquis, who had met defendant by appointment at that place. No further attention was paid to the men by Gordon, Marquis, or the barkeeper. Marquis left the place at about 11:30 P. M. and at that time Ernsting and Salter were still there. No witness testified to having noticed the two men leave the place. Up to this point in the narrative given at the trial there is no conflict of evidence. When next seen together on that night both Salter and Ernsting were in the lodging-house at 515% South Main street, where Ernsting resided. Mrs. Osgood, the landlady, testified that about 1 o’clock in the morning she heard the noise of a heavy fall and opened the door to see what caused the disturbance. She saw defendant and Salter on the floor, defendant being on top of Salter and in the act of arising;

People v. Ernsting

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Synopsis

JAMES, J.

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