People v. Figueroa

[81]

SHAW, J.

The defendant was convicted of the crime of murder of the first degree and sentenced to death. He appeals from the judgment and from the denial of his motion for a new trial.

The defendant was accused of the murder of his wife, Sarah M. Figueroa, on the night of May 22, 1910. The ease was submitted on appeal without oral argument on behalf of the defendant or the people, and no briefs have been filed by either party. Notwithstanding this failure of counsel to present the case upon appeal, we have, as is our usual practice in capital cases, carefully read the record and considered the rulings and proceedings upon the trial. The defendant was given a fair trial. The evidence of his guilt was clear and satisfactory. We find but one ruling worthy of notice. It was shown by direct and satisfactory evidence that the defendant shot and killed his wife with a pistol. A witness testified that on the evening before the 22d he saw the defendant and his wife, at their residence, and observed that the defendant had a pistol in his hip pocket, the handle of which was similar to a pistol found near the body of the wife soon after the shooting on the subsequent night. The homicide took place in the residence of the defendant and his wife. On cross-examination this witness stated that he had taken a glass of beer during that evening. He was then asked how many he had taken and whether .or not he had been drinking to excess on that night. An objection that this was immaterial and not proper cross-examination was sustained. We think the questions should have been allowed. If the witness had been intoxicated at the time, it would have been for the jury to consider whether his faculties were as clear as if he had been sober, and, whether or not his recollection was correct. But these questions occurred during the course of a long, apparently aimless, and wholly fruitless cross-examination occupying twenty-three pages of the record on appeal. It was obvious from the entire course of the procedure by counsel that he had no knowledge or information that the witness was intoxicated on that occasion. He did not inform the court that he had expected .to elicit an admission to that effect, or that he believed or suspected it to be the fact. The witness had been asked minutely as to his doings during that evening prior to his interview with the defendant and there was nothing to indicate that he had been