I dissent. I am of the opinion that the defendant did not have the fair trial to which he is entitled. The record is replete with testimony as to his vicious character, but is exceedingly meager in its relevant evidence concerning the alleged crime. There is perhaps some merit in the contention of the defendant that the evidence is insufficient to sustain the verdict. According to his testimony, he was shot through the chest and arm by the same men who murdered his wife; and the exhibits disclose substantial wounds in his body at those places. *Page 23 The theory of the prosecution was that he inflicted the wounds himself. No satisfactory evidence in support of this theory was presented. Considering the point where the bullet entered, we must attribute to the defendant extraordinary skill and marksmanship, as well as unusual recklessness, in order to accept this view, for a very slight mistake in aim would have proved fatal. I am not convinced that this element in the case has been properly explained. In any event, it cannot be denied that the evidence in support of the People's theory is so weak that the case is brought within the established principle that in a doubtful case any important errors must be deemed prejudicial and must compel a reversal. (See People v. Salaz, 66 Cal. App. 173 [225 P. 777].) I think the record discloses such errors.
There is, first, the testimony admitted to show bad feeling between the defendant and his wife. This came mainly from the witness Mildred Conrad, and from the mother of the deceased. Miss Conrad related in great detail the circumstances surrounding a bitter altercation which took place in May, 1928. At this time, it appears, defendant struck the deceased several times and pushed her downstairs. The admission of this evidence is sought to be justified on the ground that although the event occurred long before the alleged crime, remoteness goes only to the weight and not to the admissibility of the evidence. (See, e.g.,People v. Wilson, 23 Cal. App. 513 [138 P. 971].) This is undoubtedly true as a general rule, but in most of the cases the evidence of acts remote in point of time is connected with subsequent acts close to the crime, so as to show a course of conduct leading up to the time of its commission. (See People v. Palassou, 14 Cal. App. 123 [111 P. 109]; People v.Thomson, 92 Cal. 506 [28 P. 589].) There are no such circumstances here; the fact is that the altercation took place over a year prior to the marriage of defendant and the deceased, and their subsequent marriage makes the evidence of early disputes of exceedingly doubtful relevancy. Some cases have recognized that a later change in feeling makes remoteness a question of admissibility. In addition, it is generally held that the right to prove the fact of prior difficulties does not include the right to go into such detail as to focus the attention of the jury on crimes or bad conduct *Page 24 unconnected with the particular crime charged. (People v.Thomson, supra; Herman v. State, 75 Miss. 340 [22 So. 873];Keifer v. State, 199 Ind. 10 [154 N.E. 870]; State v.Nelson, 148 Minn. 285 [181 N.W. 850].)
Equally prejudicial because of lack of foundation and connection is the testimony concerning possession of guns at periods long before the killing. Mildred Conrad testified that he kept a pistol in his desk at the dancing college in 1928. The witness Galluzzo testified that he saw defendant with a small gun having a black handle "for quite a while", though he could not remember the time. The witness Gouveia testified that defendant carried a .25-calibre pistol at Maywood in July, 1929. Several other witnesses testified that he had a .25-calibre pistol in his room and that he brandished it before a party of guests. Without doubt, the testimony indicated the possibility of committing innumerable murders; but it does not connect defendant in the slightest degree with the alleged homicide. Possession of a gun, or of many guns, at various times, most of them long before the date of the crime, does not tend to prove the commission of a crime with any of them. The one essential fact, if it be a fact, that any of the guns allegedly possessed by defendant could have been the one which was used in the murder, is nowhere established. No attempt to compare bullet markings was made; there was no evidence that they were of the same make; and the mere similarity of calibre is not probative. (Jack v.Commonwealth, 222 Ky. 546 [1 S.W.2d 961]; Evans v.Commonwealth, 221 Ky. 648 [299 S.W. 553]; State v. Bennett, 137 Iowa, 427 [110 N.W. 150].) The only possible justification for any of this evidence was the contradiction of defendant's alleged declaration that he never owned a gun. But defendant never so testified on the stand, and hence evidence by way of impeachment was improper. Nor could the rule of impeachment justify such prolonged and immaterial stories as were related by the witnesses.
Another error was the admission of testimony concerning a fight at a dance-hall between defendant and a "red headed fellow" in July, 1929, in which defendant is said to have exclaimed: "I want my gun." It was in no way connected with the offense charged and merely tended to degrade the character of the defendant. *Page 25
Less serious, perhaps, but of the same type was the admission of evidence that defendant had altered his bank deposit book. No connection is shown, and there was evidence tending to establish a wholly independent object in this act. The effect of the evidence was merely to show that the defendant was an unscrupulous person.
Ruby Abbott, former employer of defendant, was permitted to testify at length that he had abused her on the dance floor and had once come to her apartment under the influence of dope and had attacked and beaten her. This testimony was apparently admitted in explanation of Mrs. Abbott's admitted bias against defendant. But I see no reason why, having admitted her bias, she may proceed to accuse the defendant of crimes unrelated to the charge.
The surgeon who removed the bullet from defendant's arm testified as to the position of the arm when the bullet was fired, with the object of contradicting defendant's version of the killing. No attempt was made to qualify the surgeon as an expert, and, indeed, he declared that he knew nothing of ballistics. The same witness was permitted to testify that the bullet which he took from defendant's arm had not encountered a bone, the purpose, of course, being to suggest that the wound was not serious and was self-inflicted. Here again his testimony was a mere opinion, made without the necessary foundation qualifying him as an expert, or showing any scientific examination of the bullet and the wound. The testimony of this witness was plainly inadmissible. (People v. Salaz, 66 Cal. App. 173 [225 P. 777]; People v. Milner, 122 Cal. 171 [54 P. 833]; Keifer v. State, 199 Ind. 10 [154 N.E. 870].) This point was conceded by the court when it subsequently ordered most of this testimony stricken from the record.
Various minor errors in the admission of evidence also appear. The discharged slug found in defendant's room was identified and remained before the jury for many days before being rejected as having no connection with the alleged crime. Pawn tickets also found in defendant's room were presented, and testimony concerning them was admitted and later stricken. Error was further committed in an instruction to the jury to the effect that upon proof of the commission of a homicide, the burden of proving circumstances of mitigation or justification devolves upon the defendant. *Page 26 The correctness of this statement need not be disputed, but it was wholly irrelevant here, for defendant denied the fact of commission of the homicide, and in no way attempted to raise an issue as to mitigation or justification. (See People v.Tapia, 131 Cal. 647 [63 P. 1001]; People v. Atherton,51 Cal. 495; 8 Cal. Jur. 321, sec. 371.)
It can hardly be denied that these errors were seriously prejudicial to the rights of the defendant, and in a case where, as here, the evidence of guilt is quite meager, they should compel a reversal of the judgment of conviction. To avoid this conclusion it is urged on behalf of the prosecution that the trial court, upon motion, struck out some of the evidence erroneously admitted, particularly the testimony of the surgeon covering the position of defendant and the passage of the bullet, the evidence of the Maywood fight, the attack on Ruby Abbott, and the falsification of the bank-book. Not all of the errors to which we have referred were reached by this action of the court, and as to those that were, I am nevertheless of the opinion that their prejudicial effect could not be eliminated in the manner chosen by the court. It is, of course, presumed in the ordinary case where evidence is stricken out and the jury is instructed to disregard it, that the jury will follow the instruction, and that the error is thereby cured. But this rule is not of invariable application; and sometimes the seriousness or peculiar nature of the evidence, or the circumstances, are such that it cannot reasonably be said that its prejudicial effect was eradicated by the instruction. (People v. Anthony, 185 Cal. 152 [196 P. 47]; Stephens v. State, 17 Ala. App. 548 [86 So. 111];Ratliff v. State, 19 Ala. App. 505 [98 So. 493]; State v. Burns, 286 Mo. 665 [228 S.W. 769].) Particularly is this so where the instruction is not timely. (People v. Costa,24 Cal. App. 739 [142 P. 508]; People v. Oldham, 111 Cal. 648 [44 P. 312]; Brown v. State, 20 Ala. App. 39 [100 So. 616] .) In the instant case the trial court admitted all of the objectionable matter against strenuous objection, permitted most of it to remain before the jury throughout the trial, which lasted for over a week, and at practically the conclusion of the case granted defendant's motion to strike out portions of it. The court also struck out certain testimony on its own motion, but not until some time after its admission. Obviously the effect *Page 27 upon the jury of a blanket admonition, coming at the end of a trial, and after objections to the evidence had been overruled, is not the same as a prompt and forceful admonition given at the time of its presentation.
In view of this state of the record, I am of the opinion that the defendant did not receive a fair trial, and that the judgment should be reversed.