People v. McClure

McFARLAND, J.

Defendant was charged with the murder of one Jerry O’Shea, and the jury found him guilty of murder in the first degree and imposed the death penalty. He appeals from the judgment and from an order denying his motion for a new trial.

[419]

There is no foundation for the contention that there was not sufficient evidence to justify the verdict of murder in the first degree; and the only point which calls for special notice arises out of the contention that the court erred in allowing evidence that appellant, in addition to killing O’Shea, also shot another man named Zodikoff. Of course, the general rule is that upon the trial of a defendant on an indictment charging him with one offense, it is not admissible to introduce proof of another and entirely distinct offense merely for the purpose of prejudicing the jury against the defendant. But where the evidence objected to is pertinent to the main issues in the case, and is in itself competent, relevant, and admissible, it cannot be excluded simply because it happens incidentally to include the commission of another offense, nor where the facts touching the other offense are so intimately connected with facts constituting the offense charged as to make both parts of one transaction, so that there could not well be an intelligent statement of the one which did not allude to the other.

The main features of the case are theses The homicide—■ that -is the killing of O’Shea—occurred about a quarter past six o’clock in the morning of Monday, the twelfth day of December, 1904, in a livery stable on San Pedro Street, in the city of Los Angeles, kept by two men named Bennett and Zodikoff, and known as the “Exchange Livery and Feed Stable.” About three days before said December 12th the defendant had sold to Bennett and Zodikoff a horse and wagon. The sale of the property was consummated in front of the livery stable, and defendant drove the horse and wagon into the stable to be delivered to the purchasers. He went with Bennett into the office of the stable to make a bill of sale and receive the purchase money, and took with him a certain halter which he claimed was reserved from the sale, but which Zodikoff claimed to be included in the property sold. After defendant and Bennett concluded their business, defendant discovered that his halter had disappeared, and Bennett told him that Zodikoff had taken it. Defendant' was persistent in his demands for the halter and showed anger about the matter. Bennett told him to come the next day and he would tell Zodikoff to give it to him, as it was a small matter. After that defendant made several visits