People v. McNamara
Before: Paterson
Synopsis
Criminal Law — Re-examination of Witness — Repetition of Testimony— Discretion. —Although an objection, upon tlie part of a defendant in a criminal prosecution, to the unnecessary repetition of testimony of the prosecuting witness upon re-examination, of the same character and upon the same topic as that previously given in his direct and cross examinations, should be sustained, yet the matter is in the discretion of the court, and error cannot be predicated upon the ruling.
Id.—Cross-examination — Answer Responsive, to Question — Refusal to Strike out. .— It is not error on motion of the defendant to refuse to strike out statements of a witness for the prosecution as to the reason why he had the defendant arrested, where the statements are directly responsive to questions asked on cross-examination by the defendant’s counsel.
Id. — Refusal of Instructions Given in Substance. —It is not error for the court to refuse to give instructions asked for by a party, where they are given in substance in its charge.
Id. — Argumentative Instructions — Bias—Opinion as to Facts.— Instructions argumentative in form, and couched in language so emphatic that if given by the court they would have indicated a strong bias on the part of the court, are properly refused. An instruction should contain a principle of law applicable to the case, expressed in plain language, indicating no opinion of the court as to any fact in the case.
Id. — Presumption of Innocence — Continuance until Verdict — Erroneous Instruction. —An instruction to a jury in a criminal action, to the effect that the defendant is presumed to be innocent until proven guilty, and that the presumption goes with him all through the case, ‘ ‘ until it is submitted to you, ” is erroneous as to the latter part, and should not have been given. The presumption of innocence does not cease upon submission of the cause to the jury, but operates until they have arrived at a verdict.
Id. — Robbery — Evidence — Description of Robbers to Police-officers — Arrest upon Description. — In a prosecution for robbery, the testimony of the prosecuting witness, to the effect that he gave a description of the robbers when he reported the robbery to the police-officers, and the testimony of a policeman that he arrested the defendant on information received from others, and from the description given by the prosecuting witness, is inadmissible.
Id. — Conversation with Chief of Police. — A witness for the prosecution cannot testify to a conversation had with a chief of police.
Paterson, J. The defendant was convicted of robbery, and sentenced to serve a term of fifteen years in the state prison.
It is urged with much earnestness that the judgment should be reversed, because the evidence is insufficient to support the verdict. We find, however, from an inspection of the testimony, that this contention cannot be sustained without a judicial invasion of the province of [512]the jury, and a violation of the well-established rule applicable to cases in which there is a substantial conflict of evidence. Runyon, the prosecuting witness, testified that on the night of December 31, 1890, he.met McNamara and another man, and stopped and conversed with them; that they walked along together about a block, when a man came out from an alley, and approaching him from behind, grabbed him around the throat, pulled him back, and strangled him; that while he was being thus held, the other persons—McNamara and his companion—went through his pockets and took his valuables, a diamond pin, a watch, and twenty-seven dollars in gold and silver.
During the redirect examination of the prosecuting witness, he gave testimony of the same character and upon the same topic as in Ms direct and cross examinations. The objection of the defendant ought to have been sustained, because the testimony was an unnecessary repetition, and the re-examination indicated a disposition on the part of the prosecution to emphasize the testimony of the witness upon a particular subject. Error, however, cannot be predicated upon the ruling. The matter is left to the discretion of the court. (Code Civ. Proc., sec. 2050.)
The statements made by the witness Rogers on his cross-examination, as to the reason why he had the defendant arrested, were directly responsive to the questions asked by defendant’s counsel. The court did not err, therefore, in refusing to strike them out.
All of the answers to the objectionable questions put to the defendant were stricken out, and the court in its instructions to the jury directed them not to consider such questions or answers in arriving at a verdict. The question put to the defendant on cross-examination, calling upon him to state the purpose for which he went to the saloon, "was proper cross-examination.
The court did not err in refusing to give the first four instructions asked by the defendant. They were given in substance in the charge of the court. The other in
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