People v. Hawes

California Supreme Court Jul 12, 1893 No. 20942Published

Before: Pateksow

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Holding. The court affirmed the defendant's murder conviction, finding no error in the admission of expert testimony, dying declarations, or physical evidence, and concluding that the jury instructions were fair and legally sound.

Issues

Whether the trial court erred in qualifying a physician as an expert witness regarding gunshot powder marks.
Whether the trial court erred in admitting the deceased's dying declaration.
Whether the trial court erred in instructing the jury to disregard the history of prior hung juries.
Whether the trial court erred in reading section 1105 of the Penal Code to the jury.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Upon this showing we cannot say that the court erred in allowing the witness to speak.”

“We think this testimony shows that the declaration was made under a sense of impending death, and there is nothing to show a revival or subsequent hope of recovery.”

“The jury-engaged in trying a case have no more right to receive or consider the opinions of other juries than they have the opinions of any other persons”

Synopsis

Criminal Law—Homicide—Expert Evidence as to Powder Marks—Immaterial Evidence.—The distance at which the pistol carried by the defendant at the time of the homicide would produce powder marks upon the skin, is a proper subject, for expert testimony, though such testimony is immaterial where it is not proved that there were any powder marks upon the flesh of the deceased, and where it appears that he was so clothed at the time of the homicide that no powder marks could be produced upon the flesh.

Id.—Qualification of Expert—Cross-examination.—Where a witness for the prosecution has testified that his experience for many [years has qualified him to give an opinion upon a proper subject-matter of expert evidence, it is not error for the court to admit his evidence, if there be no cross-examination; and if the defendant desires to test the knowledge of the witness and the correctness of his statement as to his ability to give an opinion, he must cross-examine him before he is called upon to express an opinion.

Id.—Dyino Declarations of Deceased.—Declarations of the deceased made at a time when he is shown to have been under a sense of impending death, with nothing to show a revival or subsequent hope of recovery, are admissible against the person accused of the homicide.

Id.—Vest of Deceased—Questions for Jury.—It is not error to admit in evidence the vest taken from the body of the deceased, after the same had lain in the grave for five months, where a witness has testified that it was in the same condition when taken from the body as when examined and brushed by him just after the death of the deceased. The credibility of the witness, and the question whether the appearance of powder marks had been destroyed by lapse of time and other circumstances, were matters for the jury to determine.

Id.—Declarations of Defendant.—The voluntary declarations of the defendant with reference to the shooting, made immediately after it occurred, are admissible in evidence.

Id.—Impeachment of Witness—Stipulation.—The defendant cannot impeach his own witness by evidence of his declarations produced contrary to a stipulation as to the testimony of such witness.

Id.—Instructions—Penal Code—Burden of Proof—Reasonable Doubt.—It is not error to read to the jury section 1105 of the Penal Code as to the burden upon the defendant of proving circumstances of mitigation or excuse, where other instructions fully and clearly insisted upon the right of the defendant to have in every step of the case all reasonable doubts as to his guilt, or as to any fact essential to show guilt, resolved in his favor.

Id. —Result of Former Trials not to be Considered. —It is proper to instruct the jury that they are not to consider the number of trials which the defendant has had in which no verdict was obtained, and that they are to consider no other matters except the evidence and the instructions of the court.

Pateksow, J. The defendant was convicted of the crime of murder of the second degree, and was sentenced to serve a term of fifty years in the state prison.

The first point made by counsel for appellant is that the court below erred in allowing Dr. Wright, one of the witnesses on behalf of the prosecution, to testify as an expert with respect to the distance at which the pistol carried- by the defendant at [651]the time of the homicide would produce powder marks on the skin. It is claimed that he was not shown to be an expert. The doctor testified that he had been a physician and surgeon for about seventeen years, and had had such experience as would enable him to say at what distance powder marks would be noticeable on the flesh from the firing of a pistol of 38 caliber, Smith and Wesson; that he had seen a great many gunshot wounds, powder marks; and powder burns in connection therewith, and knew of his own knowledge the distance between the discharged weapons and the bodies fired upon. Upon this showing we cannot say that the court erred in allowing the witness to speak. If the defendant desired to test the knowledge of the witness and the correctness of his statement as to his al|lity to give an opinion, he ought to have cross-examined him before he was called upon to express such opinion. We entertain no doubt that the subject was a proper one for expert testimony, and cannot be classed with such matters as were discussed in People v. Smith, 93 Cal. 445. In People v. Lemperle, 94 Cal. 45, the witness was not shown to be an expert.

It is claimed that the evidence was immaterial because the evidence shows without conflict that at the time the deceased received the wound he wore an undershirt, a white shirt, and a oat and vest, while the statement of the witness “plainly presupposes that the powder was not interrupted between the muzzle of the pistol and the abdomen of the deceased.” In this we agree with counsel: it was certainly a waste of time to prove at what distance the pistol with which the wound was made would cause powder marks upon bare flesh, because the evidence, as stated above, shows that between the pistol and the flesh of the deceased, at the time the shot was fired, there were several thicknesses of cloth. But as stated by counsel in his brief, “it is too plain a proposition to require argument, that any powder escaping from the pistol would have lodged in the vest of the deceased, and the skin over the abdomen would have been left unmarked,” and we are unable to see how the jury could have been misled by the testimony. The jury knew that no one claimed there were powder marks upon the flesh of the deceased, and all the evidence there is upon the subject tends to show that there were no such marks upon the vest or shirts.

People v. Hawes

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