People v. Gleason

[324]

McFARLAND, J.

The defendant was convicted of the crime of murder in the first degree, and the jury fixed the punishment at imprisonment for life. He appeals from the judgment and from an order denying his motion for a new trial.

The appellant contends that the evidence was not sufficient to justify the jury in finding that the homicide was committed with that degree of premeditation and deliberation which is necessary to constitute murder in the first degree. Upon this point it is sufficient to say that this contention cannot be maintained, and that the evidence was amply sufficient to warrant the verdict.

Dr. Cook, a witness for the prosecution, testified that immediately after the shooting he made an examination of the body of the deceased, and was allowed to testify over the objection of the appellant that he found in a pocket of the clothing of the deceased a purse with some change in it, and that the pocket was partly turned inside out. Appellant contends that this ruling was an error for which the judgment should be reversed, but we do not think so. It is usual and not improper to show the condition of the body of a deceased party immediately after the commission of the homicide, and, even if it cannot be considered strictly a part of the

res gestae,

still we do not see how it could have been prejudicial to appellant. Even if it tended in some degree to show that robbery was the motive of the assault—and that seems to be the particular objection which appellant makes to it—that consideration would not make the evidence inadmissible. We see no ground for the contention by appellant that the evidence was inadmissible because it tended to prove another and distinct crime.

Appellant having testified on the witness stand that he feared that deceased was about to attack him with a knife, was asked this question: “Now, I ask you how he could reach you after he stepped two or three feet up, from the distance that you first saw him? Ten or twelve feet, how he could reach you with a lunge?” Appellant objected to this question, and contends that it was improperly asking for the opinion of the witness. We do not think that this contention can be maintained; considering the testimony of the appellant in chief, the question was entirely proper; it was not asking for an opinion, but really as to