People v. Russell

By the Court: The first ground of error relied upon is, that the Court erred in requiring the defendant to exercise his right of peremptory challenge prematurely, and before twelve jurors had been procured whom the Court decided to be competent and qualified. But the action of the Court was in strict accordance with the ruling of this Court in People v. Scoggins, 37 Cal. 676, and was correct, unless that case is to be now overruled. After a careful reconsideration of the question, we adhere to the ruling in that case as to the method to be pursued in impaneling a jury in a criminal action.

On the trial the defendant testified as a witness on his own behalf; and on his examination in chief, stated that he [123]left the saloon where the homicide subsequently occurred, about six o’clock in the evening, and returned about nine o’clock, when the killing took place. He also detailed what he did, and how he was occupied during the interval between the time when he left and when he returned to the saloon; but no reference was made to the time or manner of procuring the pistol with which the homicide was committed. On his cross-examination he was asked where he got the pistol, and the question was objected to as not pertinent to anything brought out on the examination in chief. But the Court overruled the objection, and the witness answered : “I cannot say where I did get it.” This ruling was excepted to, and is assigned as error. It further appears that in his argument to the jury, the District Attorney commented on the fact that the defendant failed to remember where he got the pistol, as a circumstance tending to impeach his credibility.

But we think there was no error in the ruling of the Court. The inquiry made in the first instance of the prisoner, as to where he got the pistol, may well be considered as limited to something occurring between the time of his departure from the saloon and his subsequent return to it. The ground upon which the objection was overruled—that the matter inquired of was part of the res gestæ—was in effect a determination by the Court that the inquiry was to be confined to the period of time covered by the evidence in chief. It is apparent that the Court would have so instructed the witness, had it been called upon to do so by the counsel for the defense. The subsequent and more specific questions as to how the pistol was obtained, each refer to some place which the witness had already, upon his examination in chief, represented that he visited between the time of his first struggle with the deceased in the saloon and his subsequent return to the same place. On his cross-examination it was certainly competent to inquire of the witness concern