People v. Davis

California Supreme Court Mar 13, 1894 No. No. 21,035Published

Before: Belcher

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Holding. The court affirmed the defendant's conviction for assault with a deadly weapon, finding no prejudicial error in the trial court's evidentiary rulings, jury instructions, or the admission of a witness's preliminary examination testimony.

Issues

Whether the district attorney's conduct during voir dire and argument constituted prejudicial misconduct.
Whether the trial court erred in its determination of a juror's competency regarding English language proficiency.
Whether the trial court abused its discretion in admitting the preliminary examination testimony of an absent witness.
Whether the trial court properly excluded evidence of the defendant's mental condition absent a plea of insanity.

Disposition. affirmed

Quotations verified verbatim against the opinion

“we cannot say that the court abused its discretion in holding that due and reasonable diligence had been used to find him.”

“Looking at the whole case, we find no prejudicial error, and therefore advise that the judgment and order be affirmed.”

Synopsis

Jurors—Prejudice.—A Juror on His Voir Dire was Asked by the defense if he had any special prejudice against offenses “committed during Sunday broils.” The district attorney, objecting, remarked that no one broiled but defendant. The juror was accepted without challenge. Held, no prejudice.

■ Jurors—Qualification.—Where a Juror Understands English “pretty well,” but will not say that he could always understand what anyone might say in English, it is for the court to decide whether he is competent to comprehend all that might be said in his hearing.

Criminal Trial—Admission of Evidence Taken at Preliminary Examination,—A subpoena for the prosecuting witness, a farm laborer, issued more than two weeks before the trial, and like writs sent and specially commended to the sheriffs of four adjoining counties, were all returned unserved. The county officer testified that inquiry had been made of the farmers in the chief towns of the county, and all over the county. Held, a predicate for a sworn stenographer’s report of his evidence in the preliminary examination.

Criminal Trial—Admission of Evidence Taken at Preliminary Examination.—On error assigned to the admission of the reporter’s record of evidence on preliminary examination, the certificate, if not set out in the record, is presumed to have been in proper form.

Criminal Trial—District Attorney Beading Instructions.—There is no objection to the district attorney’s reading to the jury parts of the court’s instructions, if the court permits.

Criminal Trial.—In the Absence of a Plea of Insanity? evidence that defendant had long ago been hit on the head and mentally and physically injured is immaterial.1

Assault.—An Assault With a Knife, where prosecutor is cut on the head and neck, is not a simple assault.

BELCHER, C. The defendant was convicted of an assault with a deadly weapon upon one Charles Schmidt, and this appeal is from the judgment and an order denying his motion for a new trial.

It is contended for appellant that he was prejudiced by the conduct of the district attorney, and by numerous alleged erroneous rulings of the court, during the progress of the trial, and hence that the judgment should be reversed. The matters complained of will be noticed briefly in their order.

[526]When the juror first called was being examined on his voir dire, he was asked by counsel for defendant if he had any special prejudice against offenses “committed during Sunday broils.” The district attorney objected to the question, and remarked: “Nobody broiled but the defendant.” It is said that this remark was uncalled for, and tended to prejudice the juror against the defendant. The juror was accepted without challenge; and, conceding that the remark was uncalled for, and should not have been made, still we are unable to see how any prejudice necessarily did result, or could have resulted, therefrom.

Again, when the district attorney was making his opening argument, he read to the jury portions of the instructions of the court; and it is said that, conceding counsel in his argument may read the instructions of the court, still it is improper to read only portions thereof, “and those portions presumably the part bearing most strongly against the defendant; thus emphasizing that portion of the charge of the court most damaging to the defendant. ’ ’ The district attorney had the undoubted right to state to the jury the facts of the case and the law applicable thereto, and it must be presumed that, when he read portions of the charge, he was permitted by the court to do so, and that the portions read were applicable to the facts under discussion, and declared the law correctly. In this we fail to see any misconduct on the part of the attorney, or anything of which the defendant should be heard to complain.

One of the jurors called was a German. On his examination as to his fitness to serve, he was asked by counsel for defendant if he could speak and understand the English language with ease. He answered: “Well, I understand the English pretty well. Can talk it, but I can't write much. Can write a little. I can read pretty well.” “Q. Can you always understand what anyone says when they speak in English 1 A. I would not say I could always. In some cases I don’t think I could.” Other like questions were asked and answered, and the counsel then challenged the juror upon the ground that, according to his own statement, he did not understand the English language so as to comprehend all that might be said in his hearing. The challenge was denied, and an exception reserved. There was no error in this ruling. It

People v. Davis

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