People v. Howard

Temple, J. Defendant having been convicted of the crime of murder in the first degree and sentenced to suffer death, takes this appeal from the judgment and from an order refusing a new trial.

The first point has reference to certain rulings sustain[139]ing objections to questions propounded by the defense on cross-examination of witnesses for the people.

The deceased, prior to the homicide, was living with a prostitute named Susana Del Gardo. She testified for the prosecution that on the day preceding the killing the defendant called at her house and inquired for the deceased, and that being informed that he was not there, proceeded to utter some threats in regard to him. On cross-examination she was asked by counsel for the defense if she had sent for a policeman by one Bradley. This was objected to on the ground that it was not proper cross-examination. Counsel for the defense stated that they proposed to show that she had sent for a policeman, and that defendant, who was acting as a deputy marshal, went in response to such request. The objection was sustained, the court saying: “You have the liberty to recall the witness as your own.”

I think the question should have been allowed, but it was at least a debatable question, and, upon such matters, a large discretion must be given to the trial court. The defense was not deprived of the evidence by the ruling, and I think we can see that defendant was not injured.

The witness did finally answer the question on cross-examination, for she said she had not sent by anyone word to the marshal to the effect suggested. The testimony would have been important as explaining that defendant was not then seeking the deceased, but it would not have qualified or contradicted anything that the witness had said. It was a new fact favorable to the defendant. I think it was legitimate cross-examination, for it would have rebutted an unfavorable inference which might be made from the testimony of the witness. But it would have been just as effectual for that purpose if given by the defense as their own testimony.

The same course of reasoning will dispose of a similar exception taken during the cross-examination of Bradley.

I am unable to see how the fact (if it was a fact) that defendant was employed by the city marshal to find