People v. M'Kay
Before: Temple
Synopsis
Criminal Law—Challenge to Panel—Service or Venire.—An objection to the panel which goes merely to the mode of service of the venire, and does not show that the sheriff intentionally omitted to summon any juror drawn, and that the jurors drawn were not all in attendance, constitutes no statutory ground for a challenge to the panel.
Id.—Homicide—Previous Altercation with Third Person—Evidence-Seizure or Pistol—Excited State or Mind.—Upon the trial of a defendant charged with killing one who interfered with his attempt to shoot a third person, with whom he had had a previous altercation, evidence of his declarations and acts when he, immediately after such altercation, seized a pistol belonging to a witness, and rushed back with it, tending to show his excitement, and that he took it without leave of the witness, and against his attempt to prevent it, is admissible for the purpose of showing the state of mind of the defendant at the time-of the homicide.
Id.—Previous Relations with Third Person.—Evidence of the previous relations between the defendant, and the third person with whom he had the previous altercation, though not tending to prove malice, is admissible to enable the jury to understand the immediate quarrel in which the homicide occurred.
Ed.—Offer of District Attorney to Prove Malice—Misconduct—Good Faith.—An offer by the district attorney to prove that the defendant had an abandoned and malignant heart, as tending to prove that the homicide was the offspring of malice, does not constitute misconduct, if made in good faith, and not without authority to support it, though correctly rejected.
Id.—Abstract Instruction—Definition of Character.—An abstract instruction, requested by the defendant, giving an elaborate definition of character, which can serve no useful purpose, may be rejected without injury to the defendant.
Id.—Request by Jury for Further Instructions—Action of Court.— Upon a request by the jury for further instructions, it is immaterial whether the court confined itself to the points upon which information was asked or not, provided the language used, though not the best that could have been used, was not such that the jury could have been misled.
Id.—Evidence in Mitigation of Punishment—Discretion.—The court has discretion to determine whether it will hear evidence in mitigation of punishment, and it is proper for it to refuse to hear incompetent evidence offered for that purpose.
TEMPLE, J. The defendant was convicted of the crime of manslaughter, and appeals from the judgment and from an order refusing a new trial.
1. The first point made on the, appeal arises upon the challenge "to the panel. The objection goes merely to the mode of service •of the venire. It is not shown that the sheriff intentionally ■omitted to summon any juror drawn. In fact, it does not appear that the jurors drawn were not all in attendance. This objection constitutes no ground of challenge to the panel. The challenge [630]to the panel formed under the special venire is not based upon any statutory ground.
2. It is contended that the court erred in admitting the evidence of the witness Gerke, as to what defendant said and did in procuring the pistol with which it is charged that he committed the homicide.
Defendant was charged with killing Eobert Curry. There was evidence tending to show that a few minutes before the homicide defendant had had an altercation with one Barron, who had beaten him; also, that he went immediately to Gerke’s house; which was near by, caught up a pistol belonging to Gerke and rushed back -with it, had presented it in a threatening manner toward Barron, when Curry interfered and attempted to take the pistol from defendant, and in the scuffle the pistol was discharged and Curry was killed. The theory of the prosecution was that defendant procured the pistol for the purpose of killing Barron, and when Curry interfered to protect Barron defendant killed him to get rid of his interference.
The evidence had reference to an attempt on the part of Gerlte to prevent defendant from taking the pistol, and remarks of defendant, tending to show excitement, and that he took the weapon without leave and against the. protest of Gerke. I think the evidence was proper, as tending to show the state of mind of the defendant.
3. I discover nothing in the evidence in regard to the previous-relations of defendant and Barron which tended to prove malice,, hut it was admissible to enable the jury to understand the immediate quarrel in which the homicide occurred.
4. We cannot say that the district attorney was acting in bad' faith when he offered to prove that defendant had an abandoned; and malignant heart, as tending to prove that the homicide was-the offspring of malice, and not of a sudden heat of passion or an accident. I think the ruling of the court rejecting the offered evidence was correct, hut had a different ruling been made authority sustaining the action of the court would have been found in the celebrated case of United States v. Guiteau, 1 Mackay, 498, 47 Am. Rep. 247, where much evidence was admitted which merely tended to show that Guiteau had a malicious and malignant disposition.
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