People v. Carkhuff

By the Court, Rhodes, J. The defendant was indicted and convicted of murder. He assigns several errors, but it will be unnecessary to consider more than one. Burns, a witness for the prosecution, testified, among other things, as follows : “ Deceased and I lunched together, about two o’clock p. m. ; my wife invited deceased to take supper with us; he declined, saying he must go home to attend to cooking apples; he said, Sam, meaning defendant, would be home that night; that he had gone to the Park to see a favorite officer and witness a review.”

The defendant objected to the declarations and conversation of the deceased, because they were irrelevant, were not shown to have been made in extremis, and not made in the presence of the defendant.

All the evidence tending to connect the defendant with the commission of a murder was circumstantial. The deceased was last seen alive at about two o’clock p. ar., on Sunday, and his corpse was found at his house between seven and eight [642]o’clock a. ar., on Monday, by witness Burns, who was informed of the death of the deceased by the defendant. Burns testified that the defendant, who lived with the deceased, left the house of the witness at eleven o’clock A. ar., on Sunday, to return home to water his horses, and from that time till the following morning he was not seen at the house of deceased. The condition of the body of the deceased, when first seen by Bums, indicated that his death had occurred several hours previously, and it became necessary for the prosecution to show by facts and circumstances, or by some competent proof, that the defendant had been at his house some time during the night, and several hours previous to seven o’clock A. m., on Monday morning. The defendant was shown to have been in Sacramento, about four miles from the house„of the deceased, on Sunday evening.

The only object of the prosecution in offering in evidence the declaration of the deceased that the defendant would be at home on Sunday night, was to enable the jury to presume, from the fact that the deceased expected the defendant to return that night, that he did so return, and was there at the time of the commission of the murder. It is impossible to conceive upon what theory that declaration was admissible. If the declaration had been made to the witness by any other-person it would not be contended that it was admissible in evidence, for evidently it would be obnoxious to the objection that it was hearsay testimony.