People v. De Witt

Thornton, J. — The defendant was accused of murder, and convicted of it in the first degree.

The court committed no error in sustaining the objection to the question of counsel for defense: “How do you know?” In fairness to the witness, the objection should have been and was properly sustained.

There was no error in sustaining the objection to the question of counsel for defense: “What for?” The witness had replied to questions of counsel for prosecution that she was never on the stand as a witness but once before, and that then she was very much excited. The question was then asked by the defense: “What for?” — that is, for what was she called to testify. The objection to it was sustained. The question referred to a matter entirely immaterial, and the court committed no error in sustaining the objection to it.

We perceive no error in the question asked Dr. Tooley as to the range of the ball. It referred to an immaterial matter.

[586]The question put to the witness Vincent, “Whom did you see watching around the house ? ” (referring to the house where deceased was before and when she was killed,) was not leading.

To the question by the court, “Did you see anybody there?” (referring to the space around the house where the homicide was committed,) the witness (Vincent) answered: “I saw some person standing at a distance, but I could not recognize him at the time, and I can’t make any statement about who the party was.”

The court committed no error in allowing Matt Sullivan and Charles Crockett to testify to the statements made to them by the witness Vincent. The foundation was laid for the introduction of such statements as provided by section 2052, Code of Civil Procedure, and the prosecution, under section 2049, Code of Civil Procedure, is allowed to impeach his own witness by proving statements inconsistent with his present testimony given on the trial. • The evidence of Vincent’s contradictory statements was in regard to a matter material to the issue, and the statements were of the character allowed to be given in evidence. In People v. Jacobs, 49 Cal. 384, section 2049, Code of Civil Procedure, was not referred to, and though decided in 1874, after the code went into effect, the case must have occurred prior to its adoption, and prior to the enactment of section 2049, Code of Civil Procedure above referred to.