People v. Russo

KOFORD, P. J.

Defendant appeals from a judgment of conviction of the crime of murder in the first degree. Upon recommendation of the jury, the sentence was imprisonment. The testimony shows that the defendant shot and killed Rosilina La Fata upon a public street in San Francisco on February 27, 1924. Defendant was identified by witness Robert Lantz, who was standing within a few feet of the deceased at the time of the murder, and also by witness Martin M. Armstrong, who heard the fatal shots fired and saw the defendant fleeing the scene of the murder.

The assignments of error are certain rulings sustaining objections to evidence, and one instruction given.

On cross-examination witness Lantz was asked if he had any particular business that took him to the soft-drink parlor which was in the neighborhood of the crime, where

[674]

he had met the deceased. A general objection to this question was sustained. Appellant suggests several possible ways in which an answer to this question might be of benefit to the defendant, but they are not called for by the question. Also the record shows that the cross-examination of the witness did not restrict inquiry into the subject matters now suggested by appellant. The defense was not permitted to ask this witness a question concerning a certain part of his testimony shown in the transcript of proceedings before the grand jury. The objection made was that it was not impeachment. Appellant has not incorporated this matter in the record, nor even stated its substance, and consequently we must assume that the ruling complained of was correct.

An objection was sustained when this witness was asked on cross-examination whether he had seen anyone else but the defendant “run down that way” after the shooting. This question could properly have been allowed as testing the witness’ recollection in the discretion of the court, or as a part of the

res gestae,

but the ruling does not appear to have been injurious. In view of the near-by eyewitnesses to the murder and their identification of the defendant, which in no way depended upon what happened after the shooting, this was not an important part of the