People v. McCrea

By the Court, Sawyer, J.: McCrea was jointly indicted with Jones, in the case of People v. Jones, 30 Cal. 565, for an assault with intent to rob Hong Koy, but separately tried. The evidence is very much like the evidence in the case of Jones. Some of the same errors were committed in admitting testimony that we have pointed out in that case, and it is unnecessary to consider them further.

We also think there was error in refusing to admit the testimony of Baird, Kincaid and some others, as to circumstances tending to identify the day on which defendant was at Baird’s claim. We think the evidence excluded was admissible for that purpose. It was claimed by defendant that he was at Baird’s claim on the morning of the 26th, at the very time when the robbery was claimed to have been committed, and, therefore, that it could not have been committed by him. There was testimony tending to show that he was at Baird’s claim on some occasion about that time, and it was important [100]to identify the precise time, and any circumstances which would tend to fix the time were admissible for that purpose.

The testimony offered as to the description given by the Chinaman to Kincaid of the parties who made the assault was properly excluded. It was mere hearsay testimony.

Sheriff Poole, under objection and exception on the part of the defendant, testified in regard to conversations which took place on a day subsequent to the alleged robbery in the presence of the prisoner. He stated: “I asked the Chinaman (Hong Koy) if he knew this man (pointing to defendant, McCrea). -The Chinaman said, yes. He, the Chinaman, then took hold of my arm and showed me how defendant had tried to rob him. The Chinaman said : You are the man who tried to rob me. He then told me how it was done. * * * After the Chinaman had concluded his statement, McCrea remarked: That will do; I can prove where I was that day; which was all he said in the conversation.”

Admissions and confessions may be implied from the acquiescence of the party in the statements of others made in his presence, when the circumstances are such as afford an opportunity to act or speak, and would naturally call for some action or reply from men similarly situated. (1 Green. Ev. Secs. 197, 215 ; Joy on Confessions, 77.) And it makes no difference that the statements which call for a reply are made by a party who is incompetent to testify.

In Rex v. Bartlett, 7 Car. and Pay. 832, on a trial of an indictment for murder, the following statement of the wife, in presence of the husband, the defendant in the case, and his reply, were offered in evidence. The statement of the wife was as follows : “ Oh, Bartlett, how could you do it? ” He looked steadfastly at her and said: “ Ah! what! you accuse me of murder, too ! ” She said: “ I do, Bartlett; you are the man that shot my mother.” The prisoner did not make any reply. She then turned to the witness, and said: “ This is done for money.” This testimony was held admissible. In Hex v. Smithers 5 Car. and Pay. 332, also an .indictment for murder, effected by setting fire to a house, it was held that