People v. Keith

By the Court, Crockett, J.: 1. The witness Rosenberg testified to only a portion of the conversation in which the defendant admitted the homicide; and standing alone, the evidence of a part of the conversation would have been inadmissible. (People v. Gelabert, 39 Cal. 664.) But the defendant, testifying in his own behalf, not only corroborated Rosenberg as to that portion of the conversation, but related fully all the remainder of it; so that the whole conversation was proved by the defendant himself, who was not contradicted in any material particular by Rosenberg. If, therefore, the court erred in admitting the testimony of Rosenberg, the error could not prejudice the defendant. Moreover, if a witness is unable to state the whole of the conversation, the remainder of it may be proved by another witness. (People v. Ah Wee, 48 Cal. 236.)

2. There was no error in refusing to exclude the deposition of Nelson. The only objection made to the deposition was, that the magistrate before whom it was taken excluded a question propounded by the defendant to the witness on cross-examination. It is contended that the magistrate had no authority to decide upon the competency or relevancy of the evidence, and that it was his duty simply to write down the questions and answers, noting the exceptions, if' there were any. Assuming this to be correct, the error in excluding the question wrought no injury to the defendant, inasmuch as the evidence sought to be elicited by the question was immaterial.

3. The instructions, taken together, fairly stated the law, and could not have misled the jury. They were fully as favorable to the defendant as the facts warranted.

The only point in the case presenting a serious difficulty is whether the court abused its discretion in refusing to permit the defense to recall the witness Price for further cross-examination, in order to lay a foundation for the evidence of the witness Rogers, as to the declarations of Price, [140]evincing hostility toward the defendant. Both witnesses were present in court, and the application was promptly made before the prosecution had offered any evidence in rebuttal. In such cases it is certainly the better practice to grant the applications, unless the court is satisfied that there is an attempt to trifle with it, or that its time would be uselessly consumed. But necessarily such matters must rest greatly in the discretion of the court below; and it is not our practice to interfere in such cases, except where there has been clearly an abuse of discretion. In this case, the testimony of the witness Price did not differ materially from that of the other witnesses who were present at the homicide, nor from the account which the defendant himself gave of the transaction, when testifying. Moreover, there was already some testimony in the cause tending strongly to show hostility on the part of Price towards the defendant, and the court may reasonably have considered under these circumstances that it would be only a useless consumption of time to open the door for further proofs on this point. We cannot say that this was such an abuse of discretion as to require a reversal of the judgment.