Cook

The defendant was convicted of murder in the first degree and sentenced to be hanged. He appeals from the judgment and from an order denying his motion *Page 336 for a new trial. The attorney-general objects to any consideration of the appeal from the order, upon the ground that it does not appear from the bill of exceptions that a motion for a new trial was made or that it was denied, or that the order, if made, was excepted to. This is all true, but it is also true that the clerk's minutes of the proceedings upon the arraignment of the defendant for judgment show that he then moved for a new trial, that his motion was overruled, and that he reserved an exception to the order. The minutes of the court do not show the particular grounds of the motion, but in other respects the case is the same as in People v. Ward, 145 Cal. 736 , [ 79 P. 435 ], where this point was somewhat considered, though not decided. It is unnecessary, however, to dwell upon this feature of the case, for the appeal from the judgment presents every question that could have been raised on an appeal from the order, except that of the sufficiency of the evidence to sustain the verdict; and it would avail the…

A rehearing of this cause is denied, but it is proper to say that the petition of counsel for the people points out a mistake in my opinion which requires correction. The superior court did not err in refusing defendant's requested instruction 18. It was rendered erroneous by the insertion of the word "misdemeanor." This fault in the instruction was not adverted to in the argument upon which the cause was submitted, and escaped the attention of the court, as it seems to have done in People v. Glover, 141 Cal. 237 , 238, [ 74 P. 745 ], where a similar instruction was said clearly to express the law. In that case, as in this, however, the attention of the court was directed exclusively to other questions affecting the ruling complained of, and this particular fault in the wording of the instruction overlooked. The law on the point is correctly stated in People v. Hecker, 109 Cal. 461 , [ 42 P. 307 ]. It is proper, also, to state that for another reason there was no error in refusing to give either the eighth or eighteenth instruction requested by defendant. The points to which they were directed were fully covered by instructions 9, 10, and 11, given at request of the defendant.…

I dissent. I do not think the propriety of the admission of the evidence tending to prove the existence of incestuous relations between the defendant and his daughter should under the circumstances of this case have been left in doubt. That such evidence would tend to show motive on the part of the father to kill a man whom he knew to be paying attentions to her of an amatory character, whether honorable or dishonorable, seems to me too clear to admit of doubt or justify elaborate discussion. The instruction quoted in the main opinion on the subject of the purpose for which the evidence of incest should be considered by the jury, and which was refused by the court, was, in my opinion, clearly objectionable. It purported to give a positive direction to the jury, in effect, that the evidence of incest by the defendant and his daughter could not be considered as a reason for convicting him of murder. The rule is, and it is supported by the main opinion, that if they should believe from the evidence of such incest and the other evidence in the case that the motive for the killing was to prevent exposure of the incest, or was rage or jealousy growing out of the incestuous relations,…

I concur in the opinion of the chief justice and in the judgment. That opinion, however, treats only of the case as it is presented upon this appeal, while, in contemplation of the new trial which must necessarily result, it seems to me obligatory upon us to direct the trial court upon the new phases of the question which are certain to arise. Of these, the first is as to the admissibility under any circumstances of this highly injurious testimony tending to show motive. It has been said by this court: "In every criminal case proof of the moving cause is permissible, and oftentimes is valuable." (People v. Durrant, 116 Cal. 179 , [ 48 P. 75 ].) As stated in the opinion of the chief justice, the admissibility or non-admissibility of such offered evidence presents a legal question, to be determined in the first instance by the trial court, and evidence, even though injurious, is not therefore inadmissible if it pertinently and logically tends to show motive for the crime, and thus to solve any doubt which may exist in the case, either as to the identity of the slayer, the degree of the offense, the insanity of the defendant, or to the justification or excusability of his act. It…