The defendant was accused by the information of the crime of murder in the unlawful killing with malice aforethought of one McCartney in the city and county of San Francisco on the third day of September, 1907. The jury returned a verdict finding him guilty of manslaughter, and judgment was accordingly entered. This appeal is from the judgment and the order made by the court denying defendant's motion for a new trial.
The main contention of the defendant is that the court erred in giving to the jury the following instruction: "The court instructs you that if, from all the evidence in the case and the law applicable thereto, you should be satisfied to a moral certainty and beyond all reasonable doubt that the defendant here is guilty of any offense under the law, and within the information in this case, you may find him guilty as follows: you may find the defendant guilty of murder in the first degree; or you may find the defendant guilty of murder in the second degree; or you may find the defendant guilty of the crime of manslaughter."
The argument is based upon the statement that the evidence clearly shows that the person who killed McCartney was guilty of willful and deliberate murder without any provocation or *Page 222 any extenuating circumstances, and that the only question for the determination of the jury was the question as to the identity of the defendant, or in other words, whether or not defendant was the party who did the killing. It is said with much plausibility that the giving of such an instruction in a case where there is no question about the fact that the killing was deliberate murder, but the sole question is as to whether or not the defendant is the party who did the killing, would in many cases result in a compromise verdict when, but for such instruction, the jury would never have agreed upon a verdict.
It will be sufficient to decide such question when it is squarely presented by the record. In this case it is a sufficient answer to the contention to say that the record contains evidence which justifies the verdict of manslaughter. Indeed, if the jury believed defendant and the testimony he gave when upon the stand, it had the right to conclude that the killing was the result of sudden passion and in the heat of blood caused by the acts of deceased and the personal violence committed by deceased upon defendant. The defendant testified as follows: "As Bell and I were crossing Shotwell street on our way, two police officers met us. We were just walking along the street and were not making any noise or disturbance of any kind. The police officers got hold of us by the coat collars and shoved us along the street. The officer in the blue uniform had a hold of me and butted me in the back with something — I thought it was a club; the other officer hit Bell and shoved us along the street. I cannot say whether he used his club or fist. Bell was bleeding after he got down past Folsom street. I don't know whether it was from the nose or whether he was cut around the eye, but he was wiping off the blood from his face."
It appears by the record that the killing was done within a brief space of time after the transactions thus narrated by defendant. The police officer was attempting to arrest the defendant and Bell, and it was then that the shots were fired by which the deceased met his death. The jury might well have concluded that the defendant, having been shoved along and butted in the back with a club, was till angry, and that his passions had not cooled so as to make the crime deliberate *Page 223 murder. At least the jury gave the defendant the benefit of the doubt and found the lesser offense, evidently based upon his testimony as to the assaults made upon him. Therefore the giving of the instruction under the circumstances of this case was not error.
It is claimed further that the court erred in sustaining objections made to certain questions asked of the witness Dr. Kusich in cross-examination relative to certain powder marks found on the face of deceased, the questions relating to the distance of the muzzle of the pistol from the face when the shots were fired in order to have produced such powder marks. It is sufficient to say that there is no theory of the case upon which the question as to the distance of the party who did the killing from the body of the deceased at the time the shots were fired could have been material. The defendant's counsel concede that the killing was murder, and there is no dispute as to the fact that powder marks were found upon the face of deceased in and around the wound. The shots killed the deceased and left powder marks upon his face; and whether the powder marks could have been left upon the face if the shots were fired from a distance could only have been material in case the evidence showed that defendant was at a distance from deceased when he was killed, and that shots other than these fired by defendant could have produced the death. Not only this, but the evidence does not show that the witness was qualified to give an opinion upon such question or questions that were asked him.
Other errors are assigned by defendant in sustaining objections to questions asked of certain witnesses, but they do not appear to be urged, and it is sufficient to say that we have examined them and find that there was no material error committed by the court which would justify a reversal of the case.
It therefore follows that the judgment and order must be affirmed, and it is so ordered.
Kerrigan, J., and Hall, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on October 26, 1909. *Page 224