People v. Yokum

TEMPLE, J. The defendant was charged with the murder of one Albert Mason, at Butte county, on the 14th of December, 1895. He was convicted of the crime of manslaughter, and this appeal was taken from the judgment and from an order refusing a new trial. Appellant complains of certain rulings, and of some instructions.

the deceased and one Frank Ballew claimed certain land as a part of their alleged mining claim. The defendant bad contracted to purchase a tract which included the same land from the Central Pacific Kailroad Company.

On the morning of December 14, 1895, the defendant discovered a person chopping wood upon the land, who claimed that be was authorized so to do by Frank Ballew. Defendant replied that Frank Ballew did not own the land, but be, Yokum, did, and forbade the cutting of oak trees. Ballew and Mason were informed of this assertion of title, and went to the bouse of defendant to see about it. In the interview both were killed by the defendant. It is contended that the homicide was justifiable because in necessary self-defense.

The first point has reference to the admission of evidence for the prosecution in opening its case, to the effect that when Ballew and Mason started to interview defendant they were unarmed. The main contention is, that it was not admissible then. But some special injury must be shown to justify the reversal of a case merely because evidence was received at the wrong time. the defense made by the defendant, and the circumstances of the killing, afterward shown, justified the admission of the evidence. But since both lost their lives in the interview it was proper for the prosecution to introduce evidence tending to show that their intentions were peaceful.

The next contention is, that the dying statement of Albert Mason was improperly received because it was not shown that it was made under a sense of impending death. The written state[440]ment does not contain an assertion to that effect, and Miss Coleman, who wrote it, testified that nothing was said in her hearing which indicated that Mason supposed he was making a dying statement. But it was not necessary that the statement should be in writing, or, whether it was or not, that it should show that it was made under a sense oí impending death. It is enough if that fact be made to appear in any lawful mode. (1 Greenleaf on Evidence, 158; People v. Ybarra, 17 Cal. 166.)

The fact was abundantly shown in this case. Miss Nora Coleman, the young lady who wrote the statement, testified that deceased came to her mother’s house wounded, and “he said that his time was short; that he did not have long to live; that a doctor could do him no good. About three-fourths of an hour afterward I wrote down some statements made by him.”