People v. Rolfe
Before: Morrison
Synopsis
Bobbery—Striking Out Evidence—Objection to Evidence.—The Court below denied defendant’s motion to strike out the evidence of certain witnesses for the prosecution, to which no objection had been made. Held: That in such a case a motion to strike out should not be allowed.
Id.—Id.—Id.—The practice, whether in civil or criminal cases, of deliberately-permitting evidence to be given without objection in the first instance, and then moving to strike it out on grounds which might readily have been availed of to exclude it when offered, is not to be tolerated.
Id.—Competency of Evidence.—Circumstantial Evidence.—The evidence referred to consisted of circumstances more or less direct, tending to connect the defendant with the perpetration of the robbery with which he was charged, and to establish his guilt—as, for instance, that he was seen at different places not far distant from the robbery and on days not remote from the day on which the crime was committed; that he was seen in company with Hamilton, an accomplice, who was used as a witness on behalf of the State; that they were armed, one with a rifle and a pistol and the other with a shotgun; that they had the same dog with them; that they stopped at certain houses, procured meals there, and walked off in certain directions; that they made various inquiries, and otherwise conducted themselves in a suspicious manner.
Held: These were all circumstances in the case, which were properly submitted to the jury, and should have been admitted, even if regularly objected to by the defendant at the proper time.
Id.—Identity—Belief.—The witnesses expressed the belief that the defendant was the person they had seen, but did not positively and beyond a doubt identify him.
Held: The evidence was sufficiently certain, respecting the identity of the defendant, to go to the jury, and it was for the jury to say what weight it was entitled to.
Id.—Id.—Identity of Name—Impeachment of Witness—Becord of Former Conviction.—For the purpose of impeaching the defendant, who had testified as a witness in his own behalf, there was read in evidence, over the objection of the defendant, the record of conviction of one Frank Bollins of the crime of assault with intent to kill, and a witness testified, that while he was an officer at the State Prison at San Quentin the defendant was an inmate of the prison, and was known by the name of Frank Bollins among the officers, as well as upon the records of that institution.
Held: The evidence was sufficient to establish the identity of the defendant with the said Frank Bollins.
Id.—Identity of person is presumed from identity of name.
Id.—Impeachment of Witness—Uncontradicted Evidence — Query. The defendant was asked, over the objections of his attorneys: “Were you convicted of an assault with intent to kill, in San Mateo County ? If so, when ?
Morrison, C. J. The defendant was convicted in the Superior Court of Tuolumne county of the crime of robbery, charged to have been perpetrated on the third day of February, 1882. The evidence shows that a stage driven by one Dennis Shine was stopped near a point called Mountain Pass in said county, by two highwaymen wearing masks, and was robbed of several hundred dollars in gold and silver coin, the same then and there being the property of Wells, Fargo & Co. On the trial of the case numerous exceptions to the rulings of the Court were taken by the defendant, all of which are now presented to this Court for review, and we will examine them in the order of their presentation.
1. It is claimed that the Court erred in denying defendant’s motion to strike out the evidence of the witnesses Collins, Fields and others. It is a sufficient answer to this point, that all of the evidence which the Court refused to strike out came in without objection or exception; and this Court has several times held, that in such a case, a motion to strike out should not be allowed. The rule has been laid down in both civil and criminal cases. Goodale v. West, 5 Cal. 339, is an early civil case to that effect, and People v. Long, 43 id. 444, is a late criminal case announcing the same rule. Wallace, C. J., there says: “The practice, whether in civil or criminal cases, of deliberately permitting evidence to be given without objection in the first instance, and then moving to strike it out on grounds which might readily have been availed of to exclude it when offered, is not to be tolerated.” A party is not permitted to remain silent when evidence is offered, with the privilege of accepting it if favorable and afterwards moving to strike it out if it is against him, but he must exercise his right of objection at a proper and reasonable time.
We have stated the rule as it has been laid down in this State, but it is proper for us to remark that the evidence was. competent to prove the issues in the case. It all consisted of circumstances more or less direct, tending to connect the de[543]fendant with the perpetration of the robbery, and to establish his guilt. Evidence that he was seen at different places, not far distant from the robbery, and on days not remote from the day on which the crime was committed; that he was seen in company with Hampton, the accomplice, who was used as a witness on behalf of the State; that they were armed, one with a rifle and pistol and the other with a shotgun; that they had the same dog with them; that they stopped at certain houses, procured meals there, and walked off in certain directions; that they made various inquiries, and otherwise conducted themselves in a suspicious manner, were all circumstances in the case, which were properly submitted to the jury, and the evidence respecting them should have been admitted by the Court, even if regularly objected to by the defendant at the proper time.
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