People v. Turner

HENSHAW, J. Defendant appeals from a judgment of conviction for assault with intent to commit murder.

[325]Tbe prosecuting witness, Dyer, testified that be was assaulted in bis room about midnight by a man who knocked him senseless with a slung-shot, and who, upon his recovering consciousness, presented a pistol and threatened to kill him. He grappled with his assailant, who broke away and fled. He had never seen him before, but two weeks afterward, at the Oakland city jail, recognized the defendant as the man. He further testified upon direct examination that the man’s hat was upon the back of his head, the light shone upon his face, he saw his features distinctly, and so identified him.

Upon cross-examination he was asked as to -the clothing worn by his assailant, and answered that he wore an overcoat like that which was in court and was exhibited to him. He was then asked if, upon the preliminary examination and upon the former trial, he had not positively identified the coat as being the one worn by the man who entered his room. Objection to this line of examination was sustained.

The identification of the defendant by the prosecuting witness was a vital point in the case, and it was clearly permissible and important for the defendant to impair, so far as he could by legal evidence, the force of this testimony. It was legitimate cross-examination upon the question of identity to ask the witness concerning the apparel of his assailant. He having answered that the coat exhibited was like the coat worn, it was perfectly proper to show a variance between this statement and that made by the same witness upon a former trial when he identified with positiveness the particular garment. For it is apparent that a failure by a witness upon a second trial to speak with certainty upon a matter madq the subject of absolute identification upon a former trial would, unless the discrepancy were satisfactorily explained, tend to weaken and impair the effect of his evidence. Particularly is this true under the circumstances here presented, where it is made to appear that upon the former trial the defendant, after the positive identification of the overcoat, produced strong evidence to show that he had purchased it subsequent to the date of the alleged offense.

The prosecuting witness gave a general description of the size and appearance of the pistol with which he had been threatened. [326]