People v. Anthony

Morrison, C. J.: The defendant was tried and convicted, in the late District^ Court of Mendocino County, of the crime of murder in the first degree, and was sentenced to imprisonment for life in the State prison.

James Anthony and Jesse Anthony, brothers, and one Lizzie Shrum, were jointly indicted for the crime of murder, alleged to have been committed in said county of Mendocino, on the ,11th day of July, 1878, by the willful and unlawful killing, with malice aforethought, of one A. J. Shrum. The defendants demanded separate trials, and James Anthony having been convicted, appeals to this court from the judgment of conviction, as well as from the order of the Court below denying his motion for a new trial.

1. The first ground taken on this appeal is, that the verdict was contrary to law and the evidence.

The theory of the prosecution was, that Shrum was killed by Jesse Anthony, and that his brother James advised and encouraged the commission of the act. This brings the case within § 31 of the Penal Code.

We have examined the transcript very carefully, and cannot say that there was not sufficient evidence to justify the jury in finding the defendant guilty. The witness Brown testified to a confession made to him by James Anthony. The conversation detailed by the witness is quite long, and in it this defendant expressed a desire that the crime might be fastened upon one Albert Smith, and said to Brown: “ If we could convict anybody, it would do away with this d-d noise, and me and J esse would be justas much thought .of as we were before we did it.” (Transcript, folio 393.)

This confession, in connection with other circumstances tending to implicate the defendant, was sufficient to authorize a verdict of guilty, and we cannot undertake to say that the witness Brown was unworthy of credit, and that therefore his testimony should have been rejected by the jury. It is trué, that Brown was a hostile witness, and the evidence shows that he took a great interest in the prosecution; but these circumstances, and others found in the transcript, are not sufficient to [399]justify this Court in holding, that the conviction was contrary to the evidence, and that, therefore, the ruling of the Court below, denying defendant’s motion for a new trial, was erroneous.

2. The next point in the case that we will notice relates to the alleged misconduct of the juror Babcock. The evidence upon this question is conflicting, and the conclusion arrived at by the learned judge who tried the case is supported by the statements of the juror and the evidence of the witness Cook. We cannot, therefore, say that there was error in holding, as the Court did, that there was not sufficient evidence of misconduct on the part of the juror to warrant the Court in disturbing the verdict.