People v. Davis , 47 Cal. 93 ( 1873 )

By the Court:

The defendant was indicted for the murder of one Thompson and convicted of murder in the second degree.

1. The first point presented on the appeal is that the Court erred in not allowing a challenge to the panel of the trial jury upon the ground that a jury was not drawn as required by law. The point is answered by Section 226 of the Code of Civil Procedure, whereby it is provided that whenever jurors are not drawn and summoned to attend any court of record the Court may, in its discretion, by an order entered on its minutes, direct the Sheriff of the county forthwith to summon so many good and lawful men of his county to serve as jurors as the case may require.

2. In the progress of the trial a witness for the people stated that he saw the defendant sitting on the porch of his hotel at the time of the funeral of Thompson, and was then asked by the District Attorney how near the funeral procession passed to the place where the defendant was sitting. The question was objected to on the ground that it was immaterial, and the objection was overruled. It may be admitted that the information sought by the question was immaterial, still it is quite impossible to see how the defendant was prejudiced by it.

3. A witness for the defense testified that some fifteen months before the homicide, Thompson asked the Avitness to go with him and help tear down the defendant’s fence; that the Avitness declined to do so, and thereupon Thompson made certain threats against the defendant, which the Avitness communicated to him some five or six days thereafter. The witness Avas then asked: “Do you know as a fact Avhether defendant’s fence Avas torn down that night or not?” The question was objected to and excluded by the Court, and we see no error in this ruling.

4. The sixth instruction asked by the defendant and refused by the Court was substantially given in the charge of the Court. The jury was told that every witness who had testified was competent, and that they should carefully consider and weigh all the evidence.

The ninth instruction was abstract and was properly refused because not applicable to the case. It was wholly unimportant that the jury be told that the defendant had the right to regain possession of a horse which had been wrongfully taken from his possession, “if it could be done without violence and without trespassing on the premises of the deceased.”

The twelfth instruction the Court gave as requested, with an addition that in no respect changed or modified the sense of what preceded, but' only stated a further principle germane to the point of the instruction asked and given. In this there was no error. (People v. Dodge, 30 Cal. 448.)

■ On the whole we see no error in the case prejudicial to the defendant, and the judgment is affirmed.