People v. Turcott

Ross, J. The defendant was found guilty of murder in the first degree and sentenced to be hanged. The appeal is from the judgment. In his behalf it is contended, first, that the court below erred in permitting private counsel to assist the district attorney in the prosecution of the case. The practice allowing district attorneys to have the assistance of other counsel in the prosecution of criminal cases has existed and been acquiesced in almost since the organization of the State, and this practice seems to have been sanctioned by legislative action. In prescribing the course of the trial the legislature has pro[127]vided by the second subdivision of section 1093 of the Penal Code, that the district attorney or other counsel for the people must open the cause and offer the evidence in support of the charge, and by section 1095 —that if the indictment or information be for an offense punishable with death—two counsel on each side may argue the cause to the jury. We think the point not well taken.

It is next claimed that there was error on the part of the trial court growing out of this circumstance: One Mrs. Morath during her examination testified that on the evening of the shooting and some time after it occurred, she saw a Mrs. McCann and her brother searching in the yard of deceased’s residence, and that the brother raised up with a shot-gun in his hand, which was taken from next the fence and near the gate; that this brother picked up the gun in a stooping position and walked to the back of the house, and two days afterwards she saw a young man named Adams unloading the gun, and that he put it in two pieces. lío objection was taken to this evidence by the prosecution, but the court interposed and said that it did not see the bearing of the testimony upon the case, and that therefore there was no necessity of proceeding further in regard to the gun. To this ruling defendant’s counsel noted an exception, but made no response to the suggestion of the court that if he could show wherein the testimony in relation to the gun had any bearing upon the case it would be admitted. In its ruling in this particular there was no error on the part of the court below.' In outlining his defense in his opening statement the counsel for the defendant put the defense upon the ground that, at the time of the killing, the deceased made a motion with his right hand as if to draw a revolver from his right hip pocket, and the defendant, believing his life to be in danger, thereupon fired the fatal shot, and such was the purport of the defendant’s testimony. Under such circumstances, the testimony with respect to- the gun was wholly foreign to the case.