People v. Furtado

Sharpstein, J.: Manuel Francisco, a witness who was called and examined on behalf of defendant, was asked, upon cross-examination by the district attorney, if, in the month of August, 1879, on the streets of Hollister, he, witness, had a conversation with one Harris. Witness answered, “ Yes.” The district attorney then put the following question to the witness: “ Did he tell you, in the presence of McCloskey, that Mr. Payne was going to sue you for damages, for having been on his range that year ? ” To which the witness answered, “No, sir; he did not. He told me Payne was going to give me fits.” The prosecution called Thomas McCloskey as a witness in rebuttal, who testified that he was present at a conversation between the defendant and Harris, in the streets of Hollister, in August, 1879. Witness was then asked by the district attorney this question: “ Did [346]you hear Mr. Harris say to Manuel Francisco that Mr. Payne was going to sue him for damages for his sheep being on Payne’s ranch ? ” The question was “ objected to by defendant, on the grounds that it is irrelevant and immaterial, and that the proper foundation has not been laid as to particulars of time and place —stating that it was heard in the town of Hollister without designating the part of town is unsufficient.” The objection was overruled, and the defendant excepted. After which the witness answered that he heard such a conversation between Francisco and Harris.

“ A recognized rule, or rather qualification of the rule, governing the impeachment of. the credit of a witness by proof of contradictory statements elsewhere made by him, is, that the matter involved in the supposed contradiction must not itself be merely collateral in its character, but must be relevant to the issue being tried.” (People v. Devine, 44 Cal. 458.) How a statement made by Harris to Francisco—the defendant not being present—could be relevant to the issue being tried in this case, is certainly not apparent.

Two of the witnesses for the prosecution—Pogue and Hilburn—were severally asked on their cross-examination, if it was not understood that they were to meet Payne on his ranch on the morning of the homicide, and to assist him in driving the defendant and the sheep from both ranges—Payne’s and Pogue’s fathers’. The question was objected to as being irrelevant and immaterial, and the objection was sustained, defendant excepting.