People v. Huff

Belcher, C. C. — The defendant was accused of the crime of murder committed in the city and county of San Francisco. At the trial it was admitted that he committed the homicide charged by shooting the deceased with a pistol, but it was claimed that the killing was justifiable, or, at most, amounted only to manslaughter. He was, however, convicted of murder in the second degree, and sentenced to imprisonment for life. He moved for a new trial upon all of the statutory grounds, and now prosecutes this appeal from the judgment and order denying his motion.

During the progress of the trial, and after several witnesses had been examined for the prosecution, the minutes of the court, as kept by the clerk, show that, “ thereupon the defendant and the jurors go, in charge of a sworn officer, to inspect the premises where the crime was committed, and subsequently returning into court, their names were called, and all answered to their names.”

Nothing else in reference to this matter is found in the transcript, but it is claimed that error should be presumed, because it does not appear that the “ sworn officer” in charge of the jury was the sheriff, or that the place where the offense was charged to have been com[119]mitted was shown to the jury by a person appointed by the court for that purpose, or that the defendant's counsel and the judge of the court were present.

The settled rule is, that error is not to be presumed, but must affirmatively appear in the record, and all omissions and uncertainties in a bill of exceptions are to be construed against the party presenting it. (People v. Williams, 45 Cal. 25.)

It will be presumed, therefore, in the absence of a showing to the contrary, that the sworn officer who accompanied the jury was the sheriff or his deputy; that the place which the jury was sent out to view was properly shown to them by a person appointed by the court for that purpose, and that, if need be, the counsel and judge were present.

No instructions appear to have been asked on either side, bút the court charged the jury at length in reference to murder in both degrees, manslaughter and justifiable homicide. Counsel for defendant excepted to sundry portions of the charge, and now assigns them as errors.

After carefully reading the whole charge, we fail to see how it could have misled the jury. Detached passages are open to criticism, but as a whole, we think it stated the law of the case fairly and correctly.