People v. Donlan

VAN DYKE, J.

Defendant was informed against by the district attorney of the county of Tulare for the crime of murder. He was tried and convicted of murder in the first degree. A motion for a new trial was made on the part of the defendant and denied by the court, and defendant was sentenced to be hanged. From-the judgment and order overruling said motion defendant prosecutes this appeal.

1. On behalf of appellant, errors are assigned in the admission of certain testimony by the trial court.

It appears from the evidence that the defendant, about the first of the year 1891, induced the deceased to leave her home in San Francisco and take up her abode with him in a house of prostitution in said city. In about four weeks, the mother of the deceased, having learned where her daughter was living, visited the place and demanded of the defendant that he marry the deceased. The defendant consented to this, and procured a marriage license, and subsequently the daughter told her mother that she had been married to the defendant. This statement, however, it appears was not true. During the time between the date when the deceased first went to live with the defendant and the day of the homicide, they lived together in houses of prostitution in various parts of the state, but the deceased at several different times returned and lived with her mother for considerable periods, at which times it appears that she lived respectably. Finally, in June, 1900, the defendant, the deceased, her mother and stepfather, and her half-brother, moved to the Kuhn ranch, in Tulare County, where they were all employed picking fruit, and where the defendant killed the deceased on the 18th of June, by shooting her. For several days prior to the homicide defendant had’ endeavored to induce the deceased to leave her family and go away with him again, which she had refused to do. The defense was based upon the alleged insanity of the defendant at the time of the homicide.

During the examination of Mrs. Obregon, the mother of

[491]

the deceased, and after stating in her testimony that Donlan had told her he was going to Sacramento, she was asked: “Q. What did he tell you about that?” And the witness answered, after the objection thereto had been overruled: “Why, he told me that he went to Sacramento, and went to Oroville, and that they were chased out of Oroville.—Q. Did he tell you why?” The objection to which question being also overruled, the witness answered: “Because they wouldn’t allow no man up there with a woman. Then he said they did n’t allow no man up there that was living with a woman that was taking care of a man, and that the people of Oroville would n’t allow it where a woman was taking care of a man.” Frank C. Shepherd, son of the preceding witness, and brother of the deceased, was asked to describe the kind of house in which the deceased and the defendant were living, and answered, after the objection to the question had been overruled: “Well, it was a house of prostitution.” He was told to state the conversation he overheard between the deceased and the defendant, and after objection thereto had been overruled answered: “Well, after supper Mr. Donlan gave me ten cents and told me to go to the theater that night, and if the show was out before half-past eleven, to stay out—to stay out until after that time, then I could come home.” Also, with reference to a certain conversation between defendant and deceased at the same time and in the same house, and after objection being overruled to a question to give the conversation, he stated: “She says to him—first he was mumbling to her about something I couldn’t understand. Then I heard her say: ‘Well, I have done as much as I could to-day; the cops are after us girls. ’ ”• And again he was asked what time of the day she would get up, objection to which question being overruled, he said: “At one or half-past one in the afternoon.” He likewise said: “Well, I have known her to be a prostitute.—Q. And Mr. Donlan was living with her at that time, was he not?—A. At different times—yes; not all the time he wasn’t.”