People v. Matthews

COOPER, C. The defendant was charged with the crime of murder, alleged to have been committed in the felonious [342]killing of one Heinrich Hopken on the twenty-eighth day of June, 1898. It appears that defendant was, at the time of the homicide, a constable of Milpitas township, in Santa Clara county. He had been in and around the saloon of one Pancera nearly all the afternoon, and had been drinking. About 8 o’clock or later in. the evening defendant was engaged in playing cards with one McCarron and others in the saloon, when Pancera came in and informed the parties in the saloon that if any of them had any articles in, their vehicles outside that they did not want stolen they had better go out and see about them. Defendant and McCarron immediately went out to where defendant’s horse, attached to a light spring wagon, was tied to a hitching-post. Defendant looked into his wagon, and informed McCarron that his whip was missing. The defendant immediately unhitched his horse, got into his wagon, and, with McCarron, started south on the Berryessa road, and after the two had gone about a hundred yards the defendant claimed that he had discovered that his coat was also missing from the wagon. After driving rapidly along the road until they had passed Fourteenth street they overtook deceased, who was walking along the south side of the road, and, as the horse was traveling rapidly, they passed him some ten or twelve feet, and stopped. No coat or whip was seen in the possession of deceased other than the coat he was wearing, which was not claimed to be the coat of defendant. When defendant came to within five or six feet of deceased, he addressed him, in substance, “What did you do with that whip 1 ’ ’ The deceased said he did not have any whip, and turned and ran; whereupon defendant took out his pistol, and immediately fired, and deceased fell to the ground, some ten or twelve steps from defendant. The defendant and McCarron immediately went up to deceased, and he was lying on his back, with blood on his face, dead. The jury, by its verdict, found the defendant guilty of manslaughter, and the court sentenced him to a term of five years in San Quentin. He made a motion for a new trial, which was denied, and this appeal is from the judgment and order. The case comes here on a bill of exceptions and the judgment-roll.

1. There was no error in admitting the evidence of the witness Cothran. The witness testified that on the evening of the homicide he saw deceased at the house of his brother, E. E. Cothran, 229 Ninth street, and that deceased left about [343]