75 Cal. 41

PEOPLE v. O'BRIEN. (No. 20,456.)

(Supreme Court of California. December 29, 1888.)

1. CRIMINAL LAW-APPEAL-OBJECTIONS TO Evidence.

In a prosecution for murder, an objection to the admission in evidence of the coat worn by the deceased at the time of the homicide, because it was not shown to be in the same condition as when taken from the body of the deceased, will not be considered, where such objection was not specifically made, but counsel for the defendant objected on another ground.

2. SAME-TRIAL-INSTRUCTIONS.

An instruction that the jury should gather the intent with which the homicide was committed from all the circumstances surrounding it is not erroneous, as precluding the consideration of the testimony of the defendant on the question of intent, where the jury are also instructed to weigh the testimony of all the witnesses and to judge the testimony of defendant fairly, and apply the same tests to his testimony, so far as they were applicable, that they would apply to that of other wit

nesses.

3. HOMICIDE-INSTRUCTIONS-Self-Defense.

An instruction that the plea of self-defense cannot be sustained in behalf of a person who seeks his adversary, armed at the time with a deadly weapon, and pro vokes a quarrel, and during such quarrel feloniously uses a deadly weapon, and takes the life of his adversary, is not erroneous, where the jury are also instructed that a person is not deprived of the right to defend himself because he invited his opponent by words to a fight, or because he began the affray, if he afterwards, and before the fatal blow is struck, endeavors to withdraw from the combat.

4. CRIMINAL LAW-NEW TRIAL-NEWLY-DISCOVERED EVIDENCE.

A new trial will not be granted on account of newly-discovered evidence that the deceased was seen to raise a dagger to strike the defendant at the time of the homicide, where the defendant and another witness had testified to the same effect. 5. SAME REFUSAL TO GIVE INSTRUCTIONS.

Where the jury are fully and correctly instructed on certain points, the refusal of the court to give further instruction on the same points is not error. PATERSON, J., dissenting.

In bank. Appeal from superior court, city and county of San Francisco; D. J. MURPHY, Judge.

P. Reddy, for appellant. Geo. A. Johnson, Atty. Gen., for respondent.

PER CURIAM. Defendant was convicted of murder in the second degree. The judgment directs imprisonment for 10 years in the state prison at San Quentin.

The first point made by appellant is that the court erred in admitting in evidence the coat worn by the deceased at the time of his death. It is said that there was no evidence to show that it was in the same condition at the trial that it was in when taken from the body of the deceased,-no evidence that there were any cuts in the coat or vest, or that the part of the body on which the wound was inflicted was covered by the coat or vest. It has been held that clothing worn by the deceased at the time of the homicide is admissible in evidence as a part of the res gesta. It is frequently important evidence, tending to prove the violence of the blow, and the course or direction of the bullet or knife. People v. Hong Ah Duck, 61 Cal. 391; People v. Knapp, 71 Cal. 1,

11 Pac. Rep. 793.

It is true, as stated by counsel for appellant, that there is nothing to show whether the coat was in the same condition as when taken from the body of the deceased, but no objection was made to the introduction of the coat in evidence upon that ground. The ground of objection was "that the best evidence is already in,-the evidence of the wound as shown by the doctor,--and that is superior to any holes in the old clothes." To entitle the defendant to the benefit of the point he now makes, we think there should have been a specific objection to the clothes on the ground that the prosecution had not shown that they were in the same condition at the trial as when they were taken from the deceased.

It is claimed that the court erred in refusing to give the following instruction: "And if you entertain a reasonable doubt, after consideration of all the evidence in the case, as to whether the defendant acted in self-defense, you should acquit the defendant." The instruction was properly refused. The court fully and correctly instructed the jury on the question of self-defense and reasonable doubt.

are.

The following instruction was refused: "You are instructed that if, after consideration of all evidence in the case, you have a reasonable doubt as to whether the defendant or the deceased was the aggressor, you should give the defendant the benefit of that doubt." For the same reasons, in holding that the refusal to give the first instruction quoted was not error, we think there was no error prejudicial to the defendant in refusing to give this instruction. The court gave the following instruction: "As to the question of intention, gentlemen, you must arrive at it from all the circumstances surrounding the commission of the alleged act which is charged to be criminal. Of course you will understand that we cannot look into the mind, and see what its workings are. We cannot bring a photograph of the human mind, and exhibit it to you so as to demonstrate clearly and absolutely what the workings of such minds Hence, from necessity, the law says you shall gather the intention with which an act is done from all the circumstances surrounding the commission." It is contended that the jury were bound under this instruction to look to the circumstances alone for evidence or proof of the intent with which the act of the defendant was committed. The latter testified that he stabbed the deceased with the intention and for the purpose of preventing the deceased from stabbing him. It is said that the defendant's testimony on the question of intent, being no part of the res gestæ, or of the "circumstances surrounding the commission of the act," therefore, under the instruction last quoted, the jury could not consider the defendant's testimony on the question of intention. We cannot agree with counsel in his view of the effect of this instruction. The jury were instructed that, in determining whether the defendant had reasonable grounds for believing that he was in danger of losing his life or receiving great bodily harm, etc, they "should consider all these facts, in connection with all the other evidence in the case, in determining whether the deceased commenced the affray, and whether the defendant acted in self-defense." The court further said: "You will weigh carefully the testimony of all the witnesses in the case, and give to their testimony such credit and weight as in your consciences you believe them entitled to.' Speaking of the defendant's testimony, the jury were told not to disregard or discredit it solely because the defendant was accused of crime, but that they should judge of his testimony fairly and considerately, applying the same tests, as far as they were applicable to his testimony, that they would apply to all the other witnesses in the case.

The most serious question in the case is that which relates to the following instruction, which was given by the court: "To justify a homicide, the danger menacing the defendant must be present, or apparently so to him; and it must be imminent, or appear so to him, at the time of his acting; and the killing must be done on a well-founded belief that it was necessary for the defendant to kill the deceased at the time to save himself from death, or from great bodily injury. The appearance of danger to life or limb which will justify a man in taking the life of another, must be an honest one,-one that is well grounded, or apparently so to him, and must arise out of a reasonable cause. A case which originates in the fault of the person himself, in a quarrel which he has provoked and brought on, in a danger which he has voluntarily brought upon himself by his own misconduct, cannot be considered reasonabis ir sufficient in law to support a well-grounded apprehension of imminent danger to his person, and which will support the plea of self-defense. * * * And again, let me say to you, gentlemen, that no person, when he is safe and secure from danger,

has a right to seek his adversary, being armed at the time with a dangerous or deadly weapon, and, after seeking his adversary, then provoke a quarrel with that adversary; and during that quarrel, thus provoked or invited by himself, to feloniously use a dangerous or deadly weapon, and take his life, and then come into court and claim that he acted in self-defense. The right to take human life, and justify it on the ground of self-defense, is based upon necessity, or apparent necessity, at the time of the killing."

It is claimed that under this instruction the defendant could not have the benefit of the plea of self-defense, however remote or trifling the fault might be, and no matter what the intention of the defendant was at the time the cause originated with him; that the jury were informed, if they found ' defendant guilty of any misconduct, they should deny him the benefit of the plea of self-defense without regard to the degree or character of his misconduct. If the instruction had not been qualified by others given directly in connection with it, we should be inclined to hold with the appellant, but the court in the same instruction said: "And in that connection, gentlemen, I am asked to instruct you, and I do instruct you in the words asked, and which you will consider as part of the charge of the court, binding upon you, that a party is not deprived of the right to defend himself because he may have by words invited the other to fight. Such invitation does not warrant the party challenged to make an assault with a deadly weapon. Neither is a party deprived of the right to defend his person from a felonious assault because he began the affray, if he afterwards, and before the fatal blow was struck, in good faith endeavored to withdraw from the combat. To justify a person in killing another in self-defense it must appear that the person killed was the assailant, or that the slayer had really and in good faith endeavored to decline any further struggle before the mortal blow was given."

Taking the different portions of the instruction together, we think the jury must have understood the court to say that a person who arms himself with a deadly weapon for the purpose of seeking his adversary, and provoking a quarrel with him, cannot feloniously use such weapon to take the life of his adversary, and then come into court and claim that he acted in self-defense. The jury were told in very clear terms that a party is not deprived of the right to defend his person from a felonious assault because he began the affray, if he afterwards, and before the fatal blow was struck, in good faith endeavored to withdraw from the combat. We therefore cannot say that the court erred. We have discussed the charge of the court upon the assumption that it is a part of the record herein. On the 27th day of April, 1888, there was filed in the court below a bill of exceptions, duly certified and signed by the judge, but the oral charge of the court is not incorporated into the bill. There is in the transcript a copy of what purports to be a charge to the jury given by the judge at the trial of this case, and filed by the clerk on February 8, 1888, but it is in no way authenticated. The clerk certifies "the foregoing [including this document] to be full, true, and correct copies of the various papers of record and on file in my [his] office in the above-entitled cause, and that the same constitute the transcript on appeal;" but the copy is not approved by the judge, and has not even the certificate of the official reporter as to its correctness. As was said in People v. January, 19 Pac. Rep. 258, "the clerk cannot give verity to what purports to be the instructions given or refused, by inserting them in the judgment roll."

It is claimed that the motion for a new trial ought to have been granted on the ground of newly-discovered evidence. Waiving the objection which is made by the attorney general that acts of diligence in discovering what the witnesses would testify to are not shown in the transcript, we think that the newly-discovered evidence is cumulative. The court below doubtless considered it to be such, and was of the opinion that the verdict of the jury would

not be different if the testimony of the proposed witnesses could be had on a new trial. The principai fact stated in the affidavits on motion for a new trial is that the affiants therein saw Rosengrave raise a knife or dagger to strike the defendant at the time of the difficulty. But the testimony of the defendant, and of the witness White, is to the same effect, and the case, so far as the defendant's theory is concerned, was put fairly before the jury upon the hypothesis that Rosengrave had, in fact, first assaulted the defendant with a knife or dagger.

Judgment and order affirmed.

I dissent: PATERSON, J.

78 Cal. 136

In re CASEMENT'S ESTATE. (No. 12,815.)

(Supreme Court of California. January 17, 1889.)

1. WILLS-CONTEST-DECISION AS TO LEGATEES-FINAL ORDER-APPEAL.

In an action to determine which of three corporations is the legatee meant in a will, an order awarding the legacy to the executors as part of the residuary fund, and determining that neither claimant is entitled thereto, is not a final distribution from which an appeal can be taken by one of the claimants.

2. SAME-HARMLESS ERROR.

In such case it is not error of which the claimant can complain that the court improperly vacated an order previously made, by which the executors were discharged from their trust, and reinstated them, and awarded the fund to them, as the claimant, not being the legatee entitled thereto, could not be affected by the orders mentioned.

In bank. Appeal from superior court, Placer county; B. F. MYRES, Judge. Proceedings for distribution under the will of Emily Casement, deceased. From an order made therein the Old People's Home, a corporation claiming a legacy under the will, appeals.

Charles F. Hanlon, for appellant. J. M Fulweiler, for respondents.

WORKS, J. The deceased died testate, and by her will bequeathed "to the Old Ladies' Home of San Francisco $1,000." After the issuance of letters testamentary, the Protestant Episcopal Old Ladies' Home filed a complaint, claiming to be entitled to the legacy above mentioned, and asking that the same be distributed to it. An answer was filed by the Old People's Home, making the same claim, and a like answer and claim was made by the Sisters of Mercy. While these different claims were pending, there was an order made by the court that the executors be finally discharged from their trust, and that the money be paid to the clerk of the court, to be held by him until the rights of the claimants thereto be determined by the court. Subsequently the court ordered that "J. W. Fulweiler be, and he is hereby, appointed to represent the executors of the estate of Emily Casement, deceased, as the residuary legatee in the matter of the contested legacy, and that said matter be heard March 20, 1888." Thereafter the said Fulweiler, pursuant to said order, filed what is termed a complaint on the part of O. W. Hollenbeck and John Butler, alleging that they, as such executors, were the residuary legatees under said will, and were the executors of said estate, setting out the bequest contained in said will; and further alleging that there was no such institution in said San Francisco, Cal., known as the "Old Ladies' Home;" that there were three institutions in said city that, among other things, cared for old ladies, or old women, as follows: "The Protestant Episcopal Old Ladies' Home," "The Old People's Home," and the "Sisters of Mercy;" that it was not the intention of the said deceased to bequeath the said sum of $1,000 to either of said claimants; that each of them were corporations organized under the laws of the state of California prior to the year 1870, and were inhibited

by the laws of said state from taking property by will; that, theretofore, said court had made its order discharging said petitioners from their trust as the executors of the last will and testament of said deceased; and praying that said order of the court, discharging said petitioners as such executors, be vacated and set aside. Each of the corporations above named filed answers to this complaint, reasserting their claims to the legacy, and denying the material allegations of the petition. The court entered an order vacating the former order of the court, discharging the executors, and proceeded to a hearing of the questions presented by the several claims of said legacy. The findings of the court are to the effect that neither of said claimants is entitled to said legacy; that the executors are the residuary legatees under said will, and, as such, entitled to the same; and the judgment of the court is rendered accordingly. The Old People's Home moved for a new trial, which was denied, and it appeals from the judgment and the order denying a new trial.

The appellant contends that the court below had no power to vacate the order discharging the executors, and to reinstate them as such executors by a subsequent order. Conceding this, we do not see how the appellant was or could have been injured thereby. The only material questions presented by the several claimants were whether either, and, if so, which one, of them was entitled to the legacy in question. The reinstatement of the executors was unnecessary to the determination of these questions. The court found and adjudged that the appellant was not the legatee named in the will, and that it was not, therefore, entitled to the money. This being the case, it was wholly immaterial to it whether the legacy went to one of the other claimants, or back to the persons who were claiming to be the executors of the will, and, as such, entitled to the money as residuary legatees. Therefore, if the court erred in making the order complained of, it was harmless.

It is contended that the order of distribution, made in connection with the order discharging the executors, was conclusive, and could not be set aside on motion. This may also be conceded, for the purposes of this case, as it in no way affected the rights of the appellant, or any of the other claimants of this legacy. It simply provided that the money be paid to the clerk, and held by him until the rights of the claimants be determined.

So it is urged that the judgment of the court that the executors were entitled to the legacy as residuary legatees was void, because there were no executors. We may concede this, also, and how is the appellant injured? It was enough that the judgment was against the appellant's claim. So much of the decree as provides that the same be paid to the executors may be treated as surplusage, so far as this appeal is concerned. The same may be said of the claim made that the court erred in failing to find upon the issue that the executors were barred and estopped to claim the legacy by said decree of distribution, and by failing to file a petition for the legacy within the time required by law. If the appellant was not entitled, it cannot be heard to complain that the property was decreed to some one else in the same condition, and therefore these were immaterial issues, in view of the finding and judgment against appellant's claim.

The next contention is that parol evidence was competent to show that the testatrix meant the appellant by the ambiguous term she adopted in her will. The court may have so understood it, as such evidence was heard without objection. It is argued by counsel for appellant, with great earnestness, that such evidence was competent to explain what is claimed to be an ambiguity in the terms of the will, but there is no such question before us. All of the evidence offered by the appellant was admitted by the court below. We think it may be seriously questioned whether the court did not err, in this respect, in appellant's favor, but we express no opinion upon it.

The question whether or not a charitable corporation can take by will is very elaborately argued, but there is nothing in the record to indicate that the