People v. Wong Chuey

Garoutte, J. The defendant has been convicted of murder of the second degree, and appeals to this court. He presents for our consideration many alleged errors of law occurring during the progress of the trial.- We will address ourselves to those which we deem of sufficient importance to demand special notice.

1. Certain witnesses for defendant gave evidence as to the facts and circumstances of the homicide. The prosecution sought to impeach their evidence by showing that a passing freight train obscured their view of the killing. To establish the fact that a freight train was passing the point where the murder occurred at that particular time, the train dispatcher of the company was placed upon the stand. He testified that this particular train left the Arcade depot at 6:35 p. m., going toward the river station. He was then asked what time it would be due there. An objection to this question was overruled, and the witness answered, “The train arrived at the River station at 6:50.” This answer is somewhat confusing when the question addressed to the witness is considered, and from one standpoint may be said to be nonresponsive to the interrogatory. But, from any view, the court committed no error. The question in itself was clearly proper. The fact that the train was due at the River station at 6:50 was some evidence, however slight, that it arrived there upon schedule time this particular afternoon, and, weighing the answer from that standpoint, defendant’s objection went to the weight of the evidence, rather than to its admissibility. As suggested, the answer was, from one view, nonresponsive; but no motion to strike it out was made upon that ground, and such objection is thereby waived. [627]Again, this answer bore either one of two constructions: if it be considered to be a statement that freight trains, such as this particular one, was due at River station at 6:50, then, as already suggested, the evidence was clearly proper. If the only remaining construction be placed upon the answer of the witness, then his answer amounted to a direct and positive statement that this particular train arrived at River station, upon this particular day, at 6:50 p. m., and, being a direct and positive statement as to the fact, it was clearly proper and material evidence. If counsel for defendant had shown upon cross-examination of the witness that he had no knowledge as to the time of the arrival of this train at River station, then, upon motion, he would have been entitled to have this evidence stricken from the record; that is, he would have been so entitled, upon the second construction we have given his amver to the question. People v. Mitchell, 94 Cal. 550, does not support appellant’s contention upon the proposition here considered.