People v. Sullivan

VAN DYKE, J.

The defendant was indicted by the grand jury of the county of Tuolumne for the crime of murder, in the killing of one William Spencer Gilliard, and was tried and convicted of murder in the first degree. The appeal is taken from the judgment entered upon said verdict and from the order overruling defendant’s motion for a new trial.

The appellant presents and urges three grounds of error for a reversal: 1. That the evidence is insufficient to sustain the verdict; 2. Eulings of the court on the admission of evidence; 3. Misconduct of the jury.

1. The evidence is circumstantial. The following is a synopsis of the same: The deceased, Gilliard,.in April, 1897, was employed as a watchman on the night shift at the Jumper mine in Tuloumne county, and the defendant at the same time was employed at the same mine as a miner. On the 16th of April, 1897, Kelly, the foreman of the mine, discharged the defend

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ant from employ at the mine, between 6 and 7 o’clock in the evening. The defendant blamed the deceased, Gilliard, for his discharge, and made threats regarding him. The deceased went to work on the night shift at about 7 o’clock. The defendant on the night of his discharge remarked that he, the deceased, might work that shift, but that he would not work the next. Immediately after his discharge the defendant went home to his boarding-house and told his landlady that he had been discharged and that he would “fix Mr. Gilliard.” On the afternoon of the killing the defendant said in the presence of two witnesses that Gilliard should “bite the dust,” and that he would kill Gilliard. On the evening of the killing, between 7 and 9 o’clock, defendant borrowed a 44-caliber ’73 model Winchester rifle from E. S. Schaffner, tolling Schaffner that he was taking a few days lay-off and was going prospecting next day. On that same night he went to the room occupied by himself and one Corcoran before 9 o’clock, and had with him a Winchester rifle which he loaded then and there, and while in Corcoran’s room he berated both Boone and Gilliard, and said he would make them both “bite the dust” before morning. He said he would kill them both for getting him discharged. About half-past 9 o’clock on the same night defendant was seen by one Frank Hill going in the direction of the Jumper mine and carrying a rifle at the time. It took ten or fifteen minutes to walk from where Hill was down to the Jumper mine. On the evening of the 17th of April, the next evening after the defendant was discharged, the deceased, together with F. W. Greiner and E. G. Boone, was sitting in the building at the shaft of the Jumper mine between half-past 9 and a quarter to; 10 o’clock, when a gunshot was fired through a crack in the building and a bullet struck deceased in the back, on the right side, from the effects of which he died next day. Defendant disappeared immediately from the neighborhood, and was not seen there again until brought back under arrest from Silver City, Hew Mexico, in April, 1899, two years after the homicide. Soon after the homicide he was seen at Peoria Flat, some eleven miles by road from the Jumper mine, where he tried to sell the rifle he had borrowed to one John Darrow. The rifle was subsequently recovered by constable Leland from