People v. Ryan
Before: McFarland
Synopsis
Criminal Law—Murder—Jury—Special Venire—Bias of Sheriff.— A deputy sheriff is not disqualified, under section 1064 of the Penal Code, from summoning a special venire of jurymen in a trial for murder merely because he believed that the defendant had committed the homicide, if he had no opinion as to whether or not the killing was justifiable, there being no real contention in the case that the defendant did not do the killing.
Id.—Trial of Challenge to Panel—Examination of Sheriff as to Bias.—On the trial of a challenge to the panel, on account of the bias of the officer who summoned them, it is not improper, under section 1076 of the Penal Code, to ask such officer whether, if he were impaneled and sworn as a juror to try the case, he could and would give the defendant a fair and impartial trial, notwithstanding such officer did not base his opinion upon public rumor or newspaper statements.
Id.—Evidence—Feeling of Witness.—A witness for the state, who had been previously prosecuted for killing the father of the defendant on the occasion at which the defendant committed the homicide for which he was being tried, cannot be asked, for the purpose of showing his feeling as a witness, whether on such previous trial he had employed counsel to defend himself.
Id.—Impeachment of Witness.—In laying the foundation for the impeachment of the defendant, the prosecution asked a witness whether he was acquainted with the defendant’s general reputation in the community where he lived “for truth, honest, or integrity.” The defendant made no objection to the form of this question, but did object to the following question asked the witness as to what such reputation was. The court overruled the objection. Held, that as the court’s attention had not been called to the technical defect in the form of the first question, in the use of the word “or” for “and,” and as the defendant had ample opportunity on cross-examination to find out what qualities the witness was testifying about, the ruling was not erroneous.
Id.—Improper Conduct of Prosecuting Attorney.—The attorney for the prosecution should not ask inadmissible questions for the purpose of exciting suspicions in the mind of the jurors prejudicial to the defendant, nor repeat a question to which an objection has been sustained, nor, during the trial, make remarks unjustly injurious to the defendant.
Id.—Conflict of Evidence—Appeal.—Where the evidence as to whether a homicide was justifiable or not is conflicting a judgment of conviction of murder in the second degree cannot be interfered with on appeal.
McFarland, J. Appellant was accused by information of the murder of one James McCaffery, and was. convicted of murder in the second degree. He appeals from the judgment and from an order denying bis motion for a new trial.
1. The first alleged error relied on. for a reversal is the refusal of the court to allow the challenge of appel[583]lant to the panel of jurors summoned on a special venire, upon the ground that the deputy sheriff who summoned said jurors was disqualified under section 1064 of the Penal Code.
Under the circumstances shown by the testimony on this point, it would have been, perhaps, more becoming in the sheriff to have selected some person other than the deputy in question to summon said jurors; but we cannot say that the court erroneously decided, on the evidence, that the said • deputy was not disqualified by-bias. It is true that in one part of the testimony of the-deputy when on the witness-stand he did give an affirmative answer to the question whether or not he had. an opinion as to the guilt or innocence of the appellant;.-, but he afterward said: “ I have not formed or expressed any opinion as to the guilt or innocence of this defend-, ant. I have no bias or prejudice against him. . . . „ I say that I had some sort of opinion, but it has since • been dispelled. ..... I simply had an opinion that. McCaffery had been killed. As -to whether or not he-had been killed in a justifiable manner, or whether the-party who took his life was justifiable or not, I had no-opinion, and never have had. I have no opinion now.” In answer to the question, “ Have you any opinion now of any kind or character, or have you had since the next day after the trouble, as to the guilt or innocence of this defendant,” he answered, “No, sir.” He also said: “I mean that I had an opinion that he [defendant] was the man that shot McCaffery; whether he was justified in it or not I don’t know.” (There was no real contention in the case that appellant did not kill McCaffery; but he was killed by a shot aimed by appellant at, one George McCord, which shot appellant claims he was justifiable in firing.) Looking at all the evidence we cannot see that the denial of the challenge ivas erroneous. As the witness did" not báse whatever" opinion he may at one time have had upon public rumor or newspaper statements, as mentioned in section" 1076 of the Penal Code, it is contended by appellant that the [584]
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