People v. O'Brien

The Court. — Defendant was convicted of murder in the second degree. The judgment directs imprisonment for ten years in the state prison at San Quentin.

The first point made by appellant is, that the court erred in admitting in evidence the coat worn by the deceased at the time of his death. It is said that there was no evidence to show that it was in the same condition at the trial that it was in when taken from the body of the deceased, — no evidence that there were any [44]cuts in the coat or vest, or that the part of the body on which the wound was inflicted was covered by the coat or vest. It has been held that clothing worn by the deceased at the time of the homicide is admissible in evidence as a part of the res gestee. It is frequently important evidence, tending to prove the violence of the blow, and the course or direction of the bullet or knife. (People v. Hong Ah Ducke, 61 Cal. 391; People v. Knapp, 71 Cal. 1.)

It is true, as stated by counsel for appellant, that there is nothing to show whether the coat was in the same condition as when taken from the body of the deceased, but no objection was made to the introduction of the coat in evidence upon that ground. The ground of objection was, “that the best evidence is already in, the evidence of the wound as shown by the doctor, and that is superior to any holes in the old clothes.” To entitle the defendant to the benefit of the point he now makes, we think there should have been a specific objection to the clothes, on the ground that the prosecution had not shown that they were in the same condition at the trial as when they were taken from the deceased.

It is claimed that the court erred in refusing to give the following instruction: “And if you entertain a reasonable doubt, after consideration of all the evidence in the case, as to whether the defendant acted in self-defense, you should acquit the defendant.”

The instruction was properly refused. The court fully and correctly instructed the jury on the question of self-defense and reasonable doubt.

The following instruction was refused: “You are instructed that if, after consideration of all evidence in the case, you have a reasonable doubt as to whether the defendant or the deceased was the aggressor, you should give the defendant the benefit of that doubt,” For the same reasons in holding that the refusal to give the first instruction quoted was not error, we think there