Opinion
Department Two
Appeal from a judgment of the Superior Court of the City and County of San Francisco. Edward A. Belcher, Judge.
COUNSEL:
The lower court erred in permitting the witness Marie E. Newlands to testify concerning the statements of the deceased made to the witness nearly four days prior to the homicide, as to what was said and done by the defendant, as they were wholly hearsay and purely narrative of a past event, and were not a part of the res gestae. (Wharton on Evidence, sec. 259; People v. Wong Ark , 96 Cal. 129-40; People v. Smith , 26 Cal. 666.) The lower court erred in admitting in evidence the letters of the girl Truly, as evidence of prior unchastity of the daughter was entirely inadmissible, unless knowledge of the same, prior to the killing, was brought home to the mother. (People v. Hurtado , 63 Cal. 288.) The representations made by a sick person of the nature and effects of the malady under which he is laboring are receivable as original evidence, whether they be made to a medical attendant or any other person, and the question of whether they are real or feigned is for the jury to determine. (Travellers' Ins. Co. v. Mosley, 8 Wall. 397-420; Aveson v. Kinniard, 6 East, 188; 1 Taylor on Evidence, sec. 580, p. 516; 1 Greenleaf on Evidence, Redfield's ed., sec. 102; Wharton's Criminal Law, 3d ed., 305.) The lower court erred in charging the jury with regard to the credibility of the testimony of the relatives of the defendant, as it was instructing the jury with respect to questions of fact. (People v. Hertz , 105 Cal. 660; Kauffman v. Maier , 94 Cal. 283, 284; People v. O'Brien , 96 Cal. 181; People v. Bonney , 98 Cal. 280.)
T. J. Lennon, Burnette G. Haskell, and J. J. Guilfoyle, for Appellant.
W. F. Fitzgerald, Attorney General, and C. N. Post, Deputy Attorney General, for Respondent.
The lower court did not err in admitting the testimony of Marie Newlands as to certain things said and done by deceased on January 4, 1894, as evidence which tends to show a material fact, or motive, is relevant, and admissible in a criminal action. (People v. Lane , 101 Cal. 517, 518, and cases there cited. See, also 7 Am. & Eng. Ency. of Law, 47, note 2.) The charge to the jury with regard to the credibility of the testimony of the relatives of the defendant was proper. (People v. Bush , 71 Cal. 607.) The lower court did not err in excluding the testimony of Dr. Gavigan as to declarations of defendant made to him on the day before the commencement of her trial, with reference to her physical and mental condition years before. (Wharton's Criminal Evidence, 9th ed., 351.)
JUDGES: Temple, J. McFarland, J., and Henshaw, J., concurred.
OPINION
TEMPLE, Judge
The defendant was tried upon the charge of murder and convicted of murder in the first degree, and appeals from the judgment and from an order refusing a new trial. Her defense was insanity.
The prosecution and defense each made an opening statement at the beginning of the trial. Among other things the district attorney stated that he would prove that the deceased, Harry G. Poole, was a young man who had expectations, and that defendant desired to induce him to marry her daughter; there had been some love passages between them, but deceased never expected to marry Miss Shattuck. On the 4th of January defendant sent Poole a note demanding that he declare his intentions. Miss Shattuck was a chorus girl in an opera troupe, and was expecting to go east on Monday, January 8th. On the Sunday preceding, defendant caused her daughter to write deceased a letter couched in endearing and yet alarming terms, requesting his immediate presence. Deceased received this letter, and in response went to the house, when defendant shot him through the head and he immediately died. He claimed that the killing was deliberate and malicious, and out of revenge because Poole would not marry her daughter.
Defendant's counsel announced that they would rely to a great extent on the same facts. He claimed that deceased pretended an honest attachment for Miss Shattuck and pretended that he desired to marry her, and so won her affections and the confidence of her mother. His visits to the residence of the Shattucks were frequent and his engagement understood, and he addressed the defendant as "ma" and her mother as "grandma." He claimed that the pretended affection was put on to enable him to seduce the daughter, which he finally succeeded in doing.
He claimed that his client was suffering from a brain disease and was already in the border lands of insanity. Insanity was already present in a latent form and only required a sufficient exciting cause to render it active. This cause was furnished by the sudden discovery on that fatal Sunday that her daughter had been ruined and she deceived by the arts of the seducer. His defense was, therefore, insanity, pure and simple.
It will be noticed that, while proof of the charge was not waived, the defense assumes that the corpus delicti being made out defendant was guilty as charged, unless she was insane. The killing was shown, and in the proof on the part of the prosecution there were no circumstances in mitigation.
1. The first objection which it is necessary to notice relates to the objections of defendant to the evidence of a conversation between [42 P. 316] Mrs. Newlands, mother of the deceased, and the deceased, January 4th, three days and more before the homicide.
The witness testified that at half past six o'clock on that evening her son received a letter from Mrs. Shattuck -- the letter alluded to in the opening statement -- and immediately went out. He returned about 8 o'clock. The district attorney asked: "What did he do then?" Here counsel for the defense objected, when the following occurred:
" Mr. Peixotto. It is part of the res gestae .
" Mr. Lennon. I object to it as irrelevant, immaterial, and incompetent. " The Court. The objection is overruled.
" Mr. Lennon. We take an exception.
" Mr. Peixotto. We introduce, may it please the court, what was done upon the evening of January 4th, as being part of the res gestae, as the first matter which led to the unfortunate matter on the Sunday.
" The Court. I suppose for the purpose of leading up to the motive or intent.
" Mr. Peixotto (interrupting). Also showing motive, deliberation, and malice.
" Mr. Peixotto. You said he came home about 8 o'clock.
A. Yes, sir.
" Q. What did he do then? A. I was sitting in the kitchen reading and he came in, and his eyes looked as though he had been crying. I did not say very much. I watched him, and he took his things off and he said he never was going into that house again. He spoke of the woman. I said: 'What woman?' He said: 'That girl's mother.' I asked him why. 'Well,' he said, 'she was no good.'"
As this was three and one-half days prior to the homicide, we need not discuss the question as to whether this conversation was res gestae. It is suggested that the conversation was res gestae as to the receipt of the letter, and if such proof of the fact was proper this must be so. But proof characterizing his receipt of the letter was not material, and the conversation did not occur at the time he received the letter and had no reference to it. It was only to show something which had transpired during his absence between himself and defendant, and was purely hearsay.
It is not disputed that it was proper for the prosecution to show malice, deliberation, and motive, but this must be done by competent evidence, and the declarations of the deceased are not competent.
It is said that the defense did not make a proper objection, because the question was what did he do then, not what did he say, and there was no motion to strike the testimony out. What he did was to have the conversation with his mother, and the record shows that all parties, including the court, understood that the evidence came in under the exception. What he did then would have been no more relevant than what he said. When it is plain that the defense intended to take the exception, and his intention could not be misunderstood, we are not disposed to criticise in order to find a reason for not considering it, especially in a criminal case. (See People v. Yee Fook Din , 106 Cal. 163.)
A great deal was made of this evidence by the prosecution. It was contended that there had been an estrangement; that in fact the deceased had answered the letter by refusing to marry the daughter, and hence arose a desire for revenge. It was error which would of itself necessitate a reversal.
2. A medical witness was called by the defense to show the mental condition of the defendant and establish the defense of insanity. It was contended that defendant was suffering from a tumor upon the brain which caused pressure there and the mental condition which made her liable to become insane upon any great excitement.
The witness proceeded to tell of what pains the patient complained, and said that it was necessary to give a clinical history of the case to understand the significance of her symptoms. He was asked if he got the history of her past sufferings from the defendant herself, and he said he did. Thereupon the district attorney objected to her statements as to past suffering and condition. The objection was sustained. The witness then said: "It is necessary to refer to previous condition in order to explain why I treated her, and why I came to the conclusion." "The Court. The previous condition of the defendant, as she may have told him, is hearsay testimony and cannot be permitted." Due exception was taken. Such declarations and statements, when they constitute in part the basis upon which the opinion of an expert is based, and are by him declared to be necessary to enable him to form an opinion as to the nature of the disease, are admissible. (Rogers on Expert Testimony, sec. 74; Cleveland etc. R. R. Co. v. Newell , 104 Ind. 264; 54 Am. Rep. 312; Yeatman v. Hart, 6 Humph. 375.)
The party is entitled to have the reasons for the opinion so that the jury can estimate its value. If the evidence justifies it they may conclude that the sufferings were feigned, or may themselves form an independent judgment upon the facts.
It is contended that injury did not result from this error. But that we cannot tell. His opinion may have carried much more weight had he been permitted to state all the facts upon which he based it. He himself said, in effect, that his opinion and treatment could not be explained without it.
3. The next exception was to the introduction by the prosecution of certain letters written by Miss Truly Shattuck to Harry G. Poole. As stated, both the prosecution and the defense had claimed in their opening statements that the relation of lovers had existed between the deceased and Miss Shattuck, and that Harry G. Poole had not intended marriage. The prosecution really claimed that the relation was immoral and that defendant knew it, and yet insisted that deceased should marry her daughter, and when he refused killed him out of revenge.
The theory of the defense has already been stated. That was that deceased was engaged to Miss Truly, and that the relation was, on their side honest and honorable, and that defendant did not suspect that there was anything wrong or that her daughter had been seduced until the morning [42 P. 317] of the homicide.
The letters were introduced as a part of the cross-examination of Miss Truly Shattuck. At the very commencement of her testimony she said: "He [Poole] was keeping company with me. I was in love with him and engaged to marry him." The defense had never denied the relation or that both defendant and her daughter encouraged and favored the attentions paid by Poole to Miss Shattuck. It was part of their defense that they did so under the belief that his intentions were honorable.
During the testimony of Miss Shattuck counsel for the defense read three letters from deceased to Miss Truly, which had no apparent significance except as showing that he sought Miss Shattuck's society.
The letters introduced by the prosecution had no other relation to the letters read by the defense than that they were a part of the same amatory correspondence. There was nothing in them tending to disprove anything contained in the letters read in defense, nor did they explain anything contained therein or testified to by the witness. The real purpose of the letters was to enable the prosecution to argue from some dubious expressions contained in them that Miss Shattuck was not then a chaste woman. In other words, that she had been seduced. I do not say that I think they tended to prove that, but, if they did, they would not disprove the charge that Poole was the seducer. Furthermore, upon that subject the witness had given no testimony. It was not shown, nor was it claimed, that the defendant knew of these letters. Evidence that her daughter was unchaste had no bearing upon any question in the case except to show malice and to rebut the claim that the defendant discovered the fact for the first time on the morning of the homicide. Without proof that the defendant knew of the correspondence I am at a loss to discover upon what principle they were admissible. If the fact of the seduction or want of chastity -- admitting that it was shown by the letters -- was material, it does not matter when the daughter was seduced or became unchaste, but when did the defendant discover it.
But, it is said, if this was error, it was invited error. But, as we have seen, the evidence did not tend to disprove or explain anything which the letters put in by the defense tended to prove. Had the character of the relation between the deceased and Miss Shattuck been, of itself, independently of the knowledge of the defendant, a matter in controversy, I think the letters would have been relevant, but the character of that relation was immaterial, except as it affected the defendant's state of mind. This could not have been affected by such facts if she were ignorant of them. There was nothing in these letters which tended to show that the young people were not engaged to be married, or that deceased had not won the confidence of the defendant by pretending an honorable affection for her daughter.
4. It is next objected that the court erred in giving an instruction as follows: "Certain relatives of the defendant, to wit, the husband, mother, and daughter, have been examined as witnesses in behalf of the defense. This is their right. It is proper, however, for the jury to bear in mind the relationship between them and the defendant, and the manner in which they may be interested by your verdict, and the very grave interest they must feel in it. And it is proper for the jury to consider whether their position and interest may not affect their credibility or color of their testimony."
A charge of this character was held to be error in People v. Hertz , 105 Cal. 660. The court has frequently hinted that a similar instruction in regard to the defendant is erroneous, because it violates the constitutional provision that judges shall not charge juries with respect to matters of fact. The court has heretofore declined to reverse for such instruction, as it had been approved in some former cases. The reason for this was that cases might have been already tried where such instruction had been given in reliance upon the former decisions, and in regard to the defendant the instruction would not be likely to be so harmful, as the situation was obvious without being specially pointed out. This case was tried before the profession had become aware of the rule laid down in People v. Hertz, supra. We do not care to modify that rule.
There are other alleged errors which I do not deem it necessary to discuss. In view of the fact of a new trial, however, I suggest that the hypothetical question put to the medical expert be revised.
Judgment and order reversed, and new trial ordered.