People v. McSweeney

VANCLIEF, C. The defendant was convicted of the crime of murder in the first degree, and sentenced to imprisonment for life in the state prison, and appeals from the judgment, and from an order denying his motion for a new trial.

The only question presented for decision is whether or not the trial court erred in sustaining the objections of the district attorney to certain questions asked ,John McFee, a witness for defendant, on his re-examination by defendant’s attorney. The record does not show what questions were asked by defendant’s attorney on the direct examination, but shows that the witness testified that he was acquainted with the defendant; that he had known defendant for the last four or five years at Holcomb Valley, in San Bernardino county, where the homicide occurred; and that defendant’s “general reputation during the past four years, in the vicinity where he has resided, for peace and quietude, has been fair.” Upon cross-examination as to his means of knowledge of defendant’s character, he said he had not resided at Holcomb Valley prior to the homicide, but resided six or seven miles from there, and went up there only occasionally, and was “somewhat acquainted with the reputation of McSweeney in Holcomb Valley,” but that he did not remember whether he had heard defendant’s “reputation for peace and quietude discussed in Holcomb Valley at all prior to the shooting.” [926]He further said: “I think I have talked about it—about some of his actions, and that sort of thing.” The following re-examination of this witness by defendant’s attorney shows the action of the court assigned as error: “Mr. Paris: Q. State whether or not you have heard of his being in any difficulties there, or of a turbulent nature. Have you ever heard anything against him as a man of peace and quiet ? Mr. Oster: We object to the question as irrelevant, immaterial, and incompetent. The Court: Sustained. (Defendant then and there duly excepts.) Q. State whether or not you have ever heard, in the neighborhood where you and McSweeney resided for four years, anything against the general peace and quietude of this man McSweeney’s character. Mr. Oster: We object ta the question as incompetent. The Court: You can answer the question ‘Yes’ or ‘No,’ if you can—just whether or not you have heard it. A. Well, yes; I have heard about it somewhat. Q. Well, what have you heard? Mr. Oster: We object to the question on the ground that it is incompetent. The Court: Sustained. (To which ruling the defendant then and there duly excepts.) Q. Have you, in that neighborhood, for the last four years, in which you and McSweeney have resided, have you ever heard anything against the peace and quiet of that man’s character? Mr. Oster: We object to the question as incompetent, on the ground that no proper foundation has been laid for it. The Court: Objection sustained. (To which ruling the defendant then and there duly excepts.) ” Inasmuch as the witness was permitted to answer, and did answer affirmatively, the twice repeated question as to whether he had heard anything said against the character of the defendant, the defendant could not have been injured by the temporary rulings against that question, even if they were erroneous, which, however, is not conceded.