Howard
People v. Howard
Opinion
Lead Opinion
Temple, J.
Defendant having been convicted of the crime of murder in the first degree and sentenced to suffer death, takes this appeal from the judgment and from an order refusing a new trial.
The first point has reference to certain rulings sustain *139 ing objections to questions propounded by the defense on cross-examination of witnesses for the people.
The deceased, prior to the homicide, was living with a prostitute named Susana Del Gardo. She testified for the prosecution that on the day preceding the killing the defendant called at her house and inquired for the deceased, and that being informed that he was not there, proceeded to utter some threats in regard to him. On cross-examination she was asked by counsel for the defense if she had sent for a policeman by one Bradley. This was objected to on the ground that it was not proper cross-examination. Counsel for the defense stated that they proposed to show that she had sent for a policeman, and that defendant, who was acting as a deputy marshal, went in response to such request. The objection was sustained, the court saying: “You have the liberty to recall the witness as your own.”
I think the question should have been allowed,…
Concurring Opinion
Beatty, J.
concurring.—I concur in the judgment. As to the ruling of the court upon the question to the witness Del Gardo, it was clearly erroneous, and the propriety of the question, in my opinion, not open to *143 debate. It was also highly material, and the exclusion, of the evidence could not be defended upon the ground that it was within the discretion of the court. But the witness subsequently answered questions to the same effect, and therefore, it can be seen that the ruling though erroneous, was not prejudicial.
As to the instruction refused by the court, and commented upon by Justice Temple, it was perhaps not suffi- ■ ciently explicit in some respects, but is not, in my opinion, open to the second ground of objection stated by him. Its refusal was justified, however, upon the ground that there was no evidence to "which it was pertinent.
Rehearing denied.