*

As

fied: “During the time I was in the east, Mr. Hill stayed at my house, and transacted my business for me here. He paid my family expenses. I sent the money to my wife, and she turned it over to him." And Mrs. Brinkley testified: "During my husband's absence, he sent me about $100 per month. Sometimes he sent the money to me, and sometimes to Mr. Hill, to pay the family expenses. When Mr. Hill was at our house as our guest, he was very kind. He took care of the children, when they were sick, and looked after the household expenses. He paid the doctor's bills, the grocer, and he paid the electrician who put in the electric plant in our house. I never handled a cent, unless he gave it to me. soon as I got the money I indorsed it, and gave it to him." Brinkley was indebted to De Groot on a promissory note which became due August 10th, and was secured by a mortgage on his household furniture. The amount due on the note for principal and interest at its maturity was $390. On July 20th he wrote defendant from Chicago: "By the way, my note to De Groot will be due on the 10th of August, and I have the money to meet it, and will send it to you as soon as I get back to Memphis. But if he will extend the note for three months longer by your paying the interest for three months $90, you had better pay Thiele, Clements, and others, and I will be in a position to meet the note at the time. I don't know whether he will or not, but you had better try him." Again, on August 1st, he wrote defendant from Memphis: "You had better draw on me for the money to pay De Groot, if he won't wait and extend the note. If he will, you can pay the others. Has June got the money to go home on? I will bet she has not, so I will have to pay for her ticket, I suppose. Let me know, but don't push me too hard, as you know Will gets the bulk of the profits from the opera company and theater." On the 10th of August, Brinkley caused a telegram to be sent by a bank in Memphis to a bank in Los Angeles, directing the payment to defendant of $390, and the money was promptly paid. Shortly after receiving the money, defendant paid to De Groot $90, and he (De Groot) agreed to wait for the balance.

In October, Brinkley came to San Francisco, and remained there about two weeks. While there, defendant was with him all the time, but nothing was said about the money. He then went to Los Angeles, and there saw De Groot, and was told by him that only $90 had been paid on his note. After two days, he returned to San Francisco, and again met defendant and told him what De Groot said about the payment. Defendant said he had paid the whole debt, and he would go to Los Angeles and prove it. The two then went to Los Angeles, anu met De Groot, and defendant and De Groot contradicted each other, and had a quarrel about

*

the matter. The next day, defendant told Brinkley that he had paid De Groot all the $390, excepting $25, and that if Brinkley would let him have that sum he would go over and pay De Groot, and get a receipt for the whole business. Brinkley gave him the $25, and he went away, but returned shortly, and said De Groot would not accept the money. Brinkley owed Niles Pease $89, and he then handed the defendant $64 more, and told him to go and pay Pease. Defendant went into Pease's store, and, when he came out, said to Brinkley: "Come on home, and I will tell you something." They then got on a cable car, and went home, and Brinkley says: "In my parlor or library, he told me he hadn't paid the money to De Groot. He said he had used the money for other things. He didn't tell me right then what he did with it. He told me later in the day." On cross-examination, Brinkley testified: "A few days before this trial, and after Hill's examining trial, I received * a letter, in Hill's hand writing, containing a list of things which it was claimed he paid out money for. He never would tell me before how he paid out the De Groot money I sent him. I do not know that he paid for my sister-in-law's ticket when she went east. Mr. Hill was attending to the payment of my family expenses. I didn't know whether he paid out this three hundred dollars for family expenses or not. I don't know what he did with The only thing I know about it is that Dr. Thiele was paid, and I didn't know until a few days ago that he was paid. That was $50 that I owed Dr. Thiele. I thought it was strange that he did not present his bill, and I heard that he had been paid, and I went around to see him, and he said that he had received fifty dollars. I didn't know, as a matter of fact, that Mr. Hill ever took a dollar of my three hundred dollars for his own personal purposes. I couldn't tell what he did with it. I asked him, and he said that he spent it. That is all." The defendant, in his own behalf, testified: "With this $390 that I received,

it.

**

*

* I went immediately to Mr. De Groot, and paid this $90, this interest, which I was to pay as soon as the money arrived, and Mr. De Groot said it was all right, and he would allow the principal to go on. I went immediately, and paid Dr. Thiele $50, and paid this electrician claim of $17.50, and I paid his sister's expenses back east, which amounted to a hundred and some odd dollars, and some small bills, drug bills, or something like that; and in that way the money was all expended for Mr. Brinkley's household expenses, and I received not a dollar benefit for myself. • debts here were very numerous. There was the grocer bill, doctor bill, electrician, and, well, most every kind of a bill that could go to make up household expenses, ranging from $10 up to $125, * the general expens

His

es, which amounted to between a hundred and twenty and a hundred and thirty dollars. He sent a hundred dollars per month expense money, but the general expenses run over that."

The above is a brief statement of the material evidence in this case, and certainly it appears to be by no means strong or conclusive. Looking at all the evidence, it seems to us that the jurors might well have entertained a reasonable doubt as to whether the defendant was guilty or not. There was, however, some evidence, and the verdict cannot, in our opinion, be disturbed on appeal upon the ground that the evidence was insufficient to justify it.

Appellant further contends that several errors of law were committed by the court which also call for a reversal. One of these alleged errors only need be noticed. Brinkley testified, as before stated, that he handed defendant $25, and then $64, and told him to go and pay his debt to Niles Pease with it; that they shortly after went to his house, and defendant then told him that he had not paid the money to De Groot, but had used it for other things. Mr. Dupuy, the deputy district attorney, then asked the witness, "When he told you that, what did you say to him, if anything?" The question was objected to by defendant on the ground that it was immaterial, irrelevant, and incompetent, and the objection was overruled and an exception reserved. The witness answered: "I asked him to give back the eightynine dollars that I had given him to pay Pease, and he would not do it. He says: 'No, you have lost confidence in me, and I won't give you this money, and you go back to San Francisco, and leave me here in the lurch to hustle for myself."'" During his argument of the case, Mr. Dupuy said to the jury: "There was an embezzlement of the $89 he had given to him to pay other debts." Counsel for defendant interrupted the attorney for the people, and objected to any argument about the $89. The court said: "The Niles Pease matter, of course, cannot have any bearing upon the present charge, except, perhaps, since it was admitted in evidence as bearing upon the intent; but, even though he had absolutely embezzled that money of Pease, it has nothing to do with this case. But it is in evidence, and is a part of the evidence in this case, and, as bearing on the intent, I think counsel has a right to comment upon it." Counsel for Defendant: "My objection is that it cannot be a proof of intent, and of something that occurred in November, from which it is sought to prove or support the intent of something that occurred in August. He might

have stolen a cow in November, and it would not prove intent in August." The Court: "This was brought as a part of the transaction and talk between the defendant and Brinkley. Objection overruled." Mr. Dupuy, continuing, then said: "The two trans

actions came together then, and while this young man was finding out the flood of this stream, the very flood involved in that stream commingled with it other inferal rascality of this defendant." The evidence objected to was clearly inadmissible. What the parties said about the $89 was not a part of the res gestae, and had no conser tion with the alleged embezzlement two months before. The prosecution had no right to introduce such evidence for the purp of showing an intent to embezzle the Se and its attorney had no right to comment upon it as a circumstance tending to show defendant's guilt. The rule is that every error is presumed to work injury, unless it appears that no injury could have resulted That the defendant here might have been and probably was, prejudiced by the errone ous rulings of the court, is quite apparent It results, in our opinion, that the judgment and order appealed from should be reversed, and the cause remanded for a new trial.

We concur: VANCLIEF, C.; SEARLS, C.

GAROUTTE and HARRISON, JJ. For the reasons given in the foregoing opinion, the judgment and order appealed from are re versed, and the cause is remanded for a new trial.

PATERSON, J. I concur. The evidence relating to the defendant's retention of the $89 does not bring the case within the decision in People v. Gray, 66 Cal. 275, 5 Pac 240. "It is a dangerous species of evidence" in any case. Com. v. Shepard, 1 Allen, 581.

PEOPLE. LANE. (No. 20,906.) (Supreme Court of California. Dec. 1, 1893) HOMICIDE-RES GESTAE-EVIDENCE OF INTENTION -SUBSEQUENT OFFENSE-INTOXICATION.

1. During a struggle between defendant and deceased in a house to which defendant had come to arrest deceased and another person, the fatal wound was given. Held, on prosecution for the homicide, that the shooting of defendant at the other person outside the house, where such person followed defendant a few minutes after the homicide, was not part of the res ges tae.

2. Such subsequent offense is not admissible on the issues of whether the homicide was acci dental or intentional, and, if intentional, whether it was deliberate and premeditated.

3. In a homicide case, an instruction that no act of a voluntarily intoxicated person is less criminal by reason of such condition, is proper in connection with qualifications as to cases where the actual existence of an intention is a necessary element of the offense.

Commissioners' decision. Department 2 Appeal from superior court, Fresno county; S. A. Holmes, Judge.

William G. Lane was convicted of mur der, and appeals. Reversed.

R. B. Terry, S. J. Hinds, and W. B. Tyler. for appellant. W. D. Tupper and Atty. Gen. Hart, for the People.

The

HAYNES, C. The defendant was tried for the murder of William G. Canfield. jury returned a verdict of guilty of murder in the first degree, with imprisonment for life. This appeal is from the judgment rendered upon the verdict, and from an order denying defendant's motion for a new trial. Appellant, at the time of the homicide, was a constable at Sanger, Fresno county. Late at night he went to a house of prostitution for the purpose of arresting the deceased and one Coleman for residing in a house of ill fame, taking two men whom he found upon the street as a posse to aid him in making the arrest. Arriving at the house, appellant knocked at the door, and replied to a question from one of the inmates that he was Lane, the constable. The girl opened the door, when appellant and the other two men entered, and appellant then said he "wanted every man in the house." George Glenn, one of the men who went to the house with the constable, was called on behalf of the people, and testified that Lane told him he had to go with him, and that he was going to arrest "these men." That another man was with Lane, whom he did not know, and had never since seen. That when the door was opened he walked in with Lane. "That Canfield came out of one of the rooms, and Lane said, 'You can consider yourself under arrest,' or words to that effect. That Canfield said: 'What authority have you to arrest me? Show me your warrant;' and Bill [meaning Lane] had his gun in his left hand, and at that Canfield made a grab for the gun, and Bill put out his right hand, and says, 'Come, go with me;' and he was grabbing the gun at that time; and when the scuffle started with the gun, I turned round and left. I ran away. I heard a shot when I got about fifty yards from the house." Loe Wilson, called for the people, testified that she opened the door when defendant said he was a constable, and he and two other men came in. That Lane then said he wanted every man in the house. That Canfield came forward, and asked Lane where his warrant was. That Lane had a revolver in his hand, and replied, "This is my warrant." That witness could not remember how he had the revolver. "He had it right in front of him. I think Mr. Canfield pushed his hand up, to keep him from shooting him." That just then she heard a shot. That she heard two shots in the house. After the second shot was fired, Canfield walked back in the hall, and said he was shot; and that she thought Lane had gone outside of the house. The witness could not tell how long a time elapsed between the two shots, but thought one was right after the other. That she did not see the second shot fired, because she had turned to go back in the hall. That when the first shot was fired they were standing close together, face to face. That at the time the second shot was fired they were standing up and Lane had

I supposed it

hold of Canfield. Emma Newman did not remember anything the defendant said. That Canfield said something about a warrant. That when Lane came in he had a pistol in his right hand. That there were some words between him and Canfield, and afterwards a scuffle, and then some shots fired. That she heard the first shot, and went back in the room, (the second room back from the front door,) and was in the room when the second shot was fired. That "after the second shot was fired Canfield came back to the room we were in, and said he was shot. He then turned and walked into the hall again." That she next saw Canfield lying by the first door on the righthand side. That the light was an ordinary lantern, and she did not know where that was. The light was dim. Upon cross-examination the witness testified that there was a scuffle, but she did not see Canfield grab the pistol. That he was trying to hold Lane with one hand and push him out of the house, and thought he was trying to get the pistol; and they were still struggling when she got back to the door. That they struggled "about three or four or five minutes, probably. Canfield was trying to throw him back, to throw him out. He was trying to get hold of something. was the pistol." They were not struggling when the first shot was fired. She thought they were not together; that Canfield was between the witness and Lane. That she was not noticing Canfield particularly; was anxious about Miss Wilson. Coleman testified to the conversation at the door substantially as the other witnesses. He remained in the back room, and it does not appear that he saw any part of the transaction, or that he was seen by Lane; that the first he saw was Canfield on the hall floor after he was shot, but that the two shots were close together,—“crack, crack, just as fast as you could pull;" and indicated by clapping his hands at an interval of about half a second. After Canfield fell in the hall, Coleman examined him, and found the wound in his back, which a medical witness described as about one inch and a half from the spinal column, fracturing the eleventh rib, and ranging inwards and upwards, and from which death resulted about a week later. After Coleman discovered the wound, he started to find a physician, and was permitted, against the objection of defendant, to testify as follows: "When I started, the defendant had gone out of the house. I went out of the front door. I went down, ran down the steps, and I got a short distance away when there were two shots fired. I heard this defendant say, "There is the son of a bitch I want,' and some one with him replied in a low tone to him. I don't know what he said. I did not see him. And immediately after saying that, as quick as possible, I heard the click of the gun, and I dropped. I throwed myself on the ground

to get out of range. There were two shots fired. They both went over me or by me. Then I went for the doctor, got him, and came back with him." The time between the shooting of Canfield and the firing of the shots outside of the house is variously estimated by the witnesses. Emma Newman placed it at about 10 minutes; Loe Wilson said, "a few minutes;" and Coleman, "two or three minutes." Appellant duly excepted to the admission of the evidence of the shooting at Coleman, and contends that the ruling admitting it was erroneous. Respondent contends that it was admissible upon either of two grounds: (1) That the shooting of Coleman after he left the house was a part of the res gestae; (2) that, considering it as a distinct offense, it was competent to show motive, or intention to kill, and that the killing of Canfield was not, as defendant claimed, accidental.

The importance of the questions here presented can scarcely be overestimated. If the evidence as to what occurred in the house made it clear that appellant, of his willful, deliberate, and premeditated malice, murdered Canfield, no necessity existed to prove the subsequent shooting at Coleman; while if it did not make it clear that the killing was of the deliberate, willful, and premeditated malice of appellant, the verdict finding appellant guilty of murder in the first degree was wrong, unless the jury could find from the subsequent occurrence that the killing of Canfield was deliberate and premeditated. No one except the jurors can tell whether the deliberation and premeditation which the jury found to have existed were based upon the one set of facts or the other, or upon both. That the shooting at Coleman was not part of the res gestae is clear. The thing in litigation was the killing of Canfield during a struggle in the house. The fatal wound had been given, the struggle ended, and appellant had left the house. How long a time had elapsed-whether three minutes or ten minutes-is immaterial. What occurred outside of the house was no part of the transaction which occurred in the house. That was entirely ended, so far as appellant was concerned. "As soon as we pass the line which distinguishes between the transaction talking of itself, and talking as modifying the transaction,-in other words, as soon as we pass the line between the time of the transaction and the time that follows it,-we have no limits that can be imposed." Whart. Crim. Ev. (9th Ed.) § 262. "An act cannot be varied, qualified, or explained either by a declaration which amounts to no more than a mere narrative of a past occurrence, or of an isolated conversation held, or an isolated act done, at a later period." 1 Tayl. Ev. 52. It is urged by counsel for respondent that the two acts could not be more contemporaneous than they were; that "the double shooting esprang as offshoot performances from one

central impulse and impetus, to wit, the drunken, brutal assault upon the house." But the assault upon the house was not the issue being tried. It was the murder of Ca field, a single substantive offense. If, during the struggle between appellant d Canfield, Coleman had appeared, and, to pre vent his interference, or with a deliberate purpose, he had killed him, it would have formed a part of the transaction, and as such could have been given in evidence. I car perceive no such relation between the two acts as make the second a part of the one act under investigation. People v. Ah Le, 60 Cal. 85, and People v. Wong Ark, 96 Cal. 126, 30 Pac. 1115, discuss the question. especially in relation to declarations; but the principles there announced, I think, fully sustain my conclusion that the shooting at Coleman was not a part of the res gestae which were then under investigation by the jury. Nor do I think the admission of the evidence in question can be sustained upon the second ground above mentioned. The learned counsel for the people say that it is claimed that the killing of Canfield was aecidental; that, "since motive is the only question now to be investigated, this testimony was rightly introduced;" and ask the significant question: "Will it be maintained for an instant that the jury must be denied this light, and must be compelled to grope about in the dark to determine how the shooting was done, and in what frame of mind defendant was when he killed de ceased?"-while appellant contends that without that testimony the jury could not have found the defendant guilty of a higher offense than manslaughter. It would therefore seem to be conceded that this evidence was controlling in its effect; and its admissibility, should therefore be carefully considered, lest the appellant should escape the just punishment of his offense, or be punished for an offense he did not commit.

That evidence of a distinct and substantive offense cannot be admitted in support of the charge of the commission of another offense. is a general rule laid down by all the authorities. This rule excludes all evidence of collateral facts, or those which are incapable of affording any reasonable presumption or inference as to the principal fact or matter in dispute. The most familiar exceptions to the general rule above stated are cases of passing or offering to pass counterfeit money. As one may innocently pass or offer to pass a counterfeit bill or coin, not knowing that it is such, proof of prior passing or offers to pass the same or similar counterfeits is competent for the purpose of proving guilty knowledge, even though such proof shows the commission of another and complete offense. The general rule above stated is in fact but the reiteration of the still more general rule that in all cases, civil or criminal. the evidence must be confined to the point in issue. "No fact which, on principles of

sound logic, does not sustain or impeach a pertinent hypothesis is relevant; and no such fact, therefore, unless otherwise provided by some positive prescription of law, should be admitted as evidence on a trial. The reason of the rule is obvious. To admit evidence of such collateral facts would be to oppress the party implicated, by trying him on a case for preparing which he has no notice, and sometimes by prejudicing the jury against him." Whart. Crim. Ev. § 29. "In criminal cases there are peculiar reasons why the test before us should be applied to proof of collateral crimes." Whart. Crim. Ev. 30. Applying these tests to the evidence in question, it must be remembered that there was no question that the fatal wound was inflicted by a ball discharged from appellant's pistol, and the questions to be resolved were: (1) Was the shooting accidental or intentional? (2) If intentional, was it deliberate and premeditated? Any inference to be drawn from a subsequent offense, or act constituting an offense, must be a logical inference. It is true that it is not necessary that the collateral offense, whether prior or subsequent, should conclusively prove the guilt of the accused of the offense for the commission of which he is being tried, in order to render it admissible in evidence; but, as evidence of another toffense manifestly tends to his prejudice, there ought to be some clear connection between the two offenses by which it may be logically inferred that, if guilty of the one, he is of the other. It is not like the admission of some collateral fact, which, if it does not, in the opinion of the jury, prove the fact intended, yet leaves no stain or prejudice to color or pervert the direct evidence of the offense under investigation. That there was no logical or necessary connection between the intent with which the shots were fired at Coleman and the intention or absence of intention with which the shots were fired in the house, is, I think, clear. The circumstances were different, the persons were different, the result was different, and the times of the two transactions, though not widely separated, were different. The only link connecting the two, if it may be so called, was that appellant went to the house to arrest both, and that fact, therefore, only proves the intention to arrest; not to kill. It is obvious that Lane may have fired the shots in the house accidentally, or without any intention of taking the life of Canfield, or in necessary self-defense, and yet have instantly formed the purpose to kill Coleman when he saw him come out of the house. None of the circumstances of the case indicate that appellant went to the house with a pre-existing intention of taking the life of any one, and the court correctly charged the jury that no appreciable time was necessary for deliberation or premeditation, and certainly that was true of the intention to kill Coleman, if it existed.

Counsel for appellant cites the case of Farris v. People, 129 Ill. 521, 21 N. E. 821, in which this question was fully considered and many cases cited. The court, after stating that testimony which is relevant to the issue is not to be excluded because it tends to prove the commission of another crime, said: "But the general rule is against receiving evidence of another offense, and no authority can be found to justify its admission, unless it clearly appears that such evidence tends in some way to prove the accused guilty of the crime for which he is on trial." Agnew, J., in Shaffner v. Com., 72 Pa. St. 65, said: "If the evidence be so dubious that the judge does not clearly perceive the connection, the benefit of the doubt should be given to the prisoner, instead of suffering the minds of the jurors to be prejudiced by an independent fact, carrying with it no proper evidence of the particular guilt." In that case the prisoner was indicted for the murder of his wife by poison. There was evidence of his criminal intimacy with the wife of S., on whose life there was an insurance, the proceeds of which, on his death, the defendant had tried to procure. It was held that evidence that S. died with the same symptoms as the defendant's wife, and had been attended by the defendant, was inadmissible. In the case of Farris v. People, supra, Farris went to the house of McGehee when the family were at dinner, and, declaring that he had come there to kill him, shot and killed him. Within half an hour after, and before he left the premises he committed a rape upon Mrs. McGehee, and this was put in evidence upon his trial, over his objection. It was contended there, as here, that the prosecution had a right to show all the defendant did from the time he came to the place of the killing until he left it, as part of one and the same transaction; but the appellate court held that the admission of the evidence was error, and reversed the judgment, and this, notwithstanding the opinion of the appellate court that the direct evidence of the homicide was sufficient to justify the verdict of guilty of murder in the first degree, as it could not be known but that the jury, in the absence of the evidence erroneously received, would have spared his life. In State v. Lapage, 57 N. H. 245, it was said by Cushing, C. J.: "I take it to be generally true that any act of the prisoner may be put in evidence against him, provided it has any logical and legal tendency to prove any matter which is in issue between him and the state, notwithstanding it might have an indirect bearing, which, in strictness, it ought not to have, upon some other matter in issue. It may be that in some cases the danger resulting from such indirect bearing might be so great in comparison with its importance in regard to matters on which its bearing was legitimate that it ought not to be admitted." In that case the learned judge, after putting an extreme case, further said: "I