People v. Mortier

Morrison, C. J.: The defendant was indicted, tried, and convicted in the Superior Court of Mendocino County of the crime of murder in the first degree, and having moved for a new trial, which was denied in the Court below, he prosecutes this appeal. The grounds upon which the motion for a new trial was based were the following:

“ The Court misdirected the jury in matters of law, and erred in the decisions of questions of law arising during the progress of the trial;

“ 2. The verdict is contrary to the evidence;

“ 3. That before a juror was called the defendant was not informed by the Court or under its direction that if he intended to challenge an individual juror he must do so "when the juror appeared and before he was sworn; and

“ 4. That two of the jurors who were impaneled and accepted as jurors in said case, and who constituted two of the members of the jury, were not assessed on the last assessment roll of Mendocino County, or the property belonging to them.”

The second ground relied upon by the defendant, that the verdict was contrary to the evidence, will he first considered by the Court; and here it may be remarked, that there was no material or substantial conflict in the evidence.

There were but three persons present when the homicide was committed, the deceased, the defendant, and the prosecuting witness, one Mels Offer. The account given of the trans[264]action by this witness is plain, straightforward, and perfectly consistent in all its details. The witness and the deceased were in the woods, chopping the timber and cleaning off a tract of land, when the defendant came up, with his gun in his hand, and engaged in an angry discussion with Richard Macpherson, the deceased, about a “ wedge ax,” which the defendant charged the deceased with having stolen. The account of the affair is given by the witness in the following simple language: “Harvey Mortier was speaking angry to Richard Macpherson about a wedge ax that Harvey Mortier accused him with stealing, accused him for taking a wedge ax, and Richard Macpherson says to him, he didn’t do it. He says he would go to Hi Stalder and find out who took the ax. The ax belonged to a man named Hi Stalder. Well! says Harvey Mortier to him, why don’t you come down now and find out who took the ax? How, says Richard Macpherson, I won’t go till this evening. He says, you had better come now. He says no, he won’t. ‘I will find somebody down in the woods that will put a good head on you; give you a good licking.’ This last was said by Mortier to Macpherson. Macpherson didn’t go down to Hi Stalder’s to find out who took the ax. He remained with me chopping, and I was chopping at the time and Richard Macpherson was working with me. He started to work and Harvey Mortier (the defendant) went away, passing where we were. He went on a little, small trail. Before' he left he asked me if I see any deers? I said, yes, sir. I says, I seen some deers over there in that direction; so he passes along that little trail going that way, towards that way, and I was chopping wood. Didn’t pay no attention to it. In a few minutes the gun was fired and I looked and seen Macpherson and Mortier. I saw Harvey Mortier shooting. I seen the smoke and the gun in front of him, and he taking the gun down from him. He was standing in bushes that were chopped down, about two feet high. (The witness here showed the position of Mortier when the shot was fired, which was a stooping one.) I saw the smoke in front of his face, and he was trying to hide himself. Mortier was thirty-four yards from Macpherson at the time the shot was fired. I measured it the next day with a six-foot