People v. Mitchell

I concur in the judgment, and in the foregoing opinion of Commissioner Temple, except that part which holds that the court erred in overruling defendant’s objection to certain evidence given by the witness Morin. The defendant was permitted to introduce in evidence, without objection, the confession of Long, to the effect that he, Long, was the person who committed the murder for which defendant was being tried, and that he obtained from Morin the pistol with which the killing was done. This admission or confession of Long was not competent evidence in favor of defendant. It was only hearsay. (Smith v. State, 9 Ala. 994 ; Sharp v. State, 6 Tex. App. 650; Rhea v. State, 10 Yerg. 258 ; Daniel v. State, 65 Ga. 199 ; Kelly v. State, 82 Ga. 444 .) But the confession being in evidence, and the defendant insisting upon its truth, there was no error of which defendant - can complain in admitting the testimony of Morin, to the effect that he did not loan or give Long a pistol, as it tended in some slight degree to disprove the truth of the alleged confession.

The defendant, having been convicted of murder in the second degree, appeals from the judgment and a refusal of a new trial.

It appears that Oscar Crandall was fatally shot, about midnight, April 23, 1891, near Rathja’s saloon, in the town of Red Bluff. Crandall, who had been in the saloon, went out upon the back porch, where he was engaged for a time imitating Chinese talk. Two or three minutes after he went out, Rathja heard the report of a pistol, and went upon the back porch, but saw no one. The back yard was surrounded by a high fence. The saloon was at the corner of Main and Hickory streets, facing on Main. It was bright moonlight, and except as obstructed by the fence, Rathja could see both streets.

Two witnesses claim to have been eye-witnesses of the affray; Peterson, who testified for the prosecution, was 224 feet away, westerly on Hickory Street. He was positive that he recognized defendant’s voice, but he could distinguish no one by sight. He saw the flash of the *553 pistol, and the person who fired ran off south, along the alley back of the yard which incloses Eathja’s back porch.

This is all the direct testimony against defendant, but there was considerable…