People v. Fowler

KERRIGAN, J.

The defendant was charged with the crime of murder, alleged to have been committed on the

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eighteenth day of December, 1914, one William Fassett being the victim. The defendant was tried, found guilty of murder in the first degree with the punishment fixed at life imprisonment, and he was sentenced accordingly. This appeal is from the order denying his motion for a new trial and from the judgment.

No complaint is made as to any of the rulings of the trial court on the admission or rejection of evidence. The defendant did not take the witness-stand himself, nor was any evidence introduced in his behalf. The sole point relied upon for a reversal of the judgment and order is the alleged insufficiency of the evidence to sustain the verdict.

On the evening of December 18, 1914, three men, engaged in burglarizing a house situated on Oak Street, between Ash-bury and Clayton Streets, in San Francisco, during the absence of the occupants, were interrupted by their return, and, in the excitement which ensued, one of the latter was shot and killed by the burglars, who immediately fled and were seen to run into what is known as the Panhandle, a portion of Golden Gate Park covered with trees and shrubbery. Soon thereafter two men were seen to emerge from the opposite side of the Panhandle and disappear, followed in a few moments by a third man, the latter without a hat. While engaged in the burglary the men concealed their features with pillow slips, and consequently the occupants of the house were unable to describe or identify the men. One witness, however, was able to testify that the eyes of one of the intruders were like the eyes of the defendant, in that they were bright and had an expression of positiveness of character. The principal circumstance relied upon by the prosecution to connect the defendant with the homicide is that a few hours -after its commission a brown hat, bearing on the sweatband thereof the defendant’s initials, was found at a place about where the three men crossed the Panhandle, and the prosecution advance the theory that in running across that portion of the park the defendant’s hat was knocked from his head by a limb of a tree, and that in stopping to pick it up he became separated from his companions. Other evidence in the case is as follows: Vincent P. MeDevitt lived on Fell Street facing the Park Panhandle, and about opposite to the house on Oak Street where the homicide was committed. Hearing a pistol shot he went to the front porch of his residence, and in a few