ted, said: "I am shot; William Kirby has shot me." Not more than two minutes had elapsed from the time of the shooting. The court held that these declarations were proper in evidence against Kirby on an indictment. Kirby v. Com., 77 Va. 681.

(69 Cal. 169)

PEOPLE v. FRENCH. (No. 20,071.)

Filed March 26, 1886.

1. WITNESS-EXAMINATION-FORMER CONTRADICTORY STATEMENTS.

On a trial for murder, if a witness for the defense testifies to facts from which the jury might infer that the deceased, on the day of the homicide, left his house for the purpose of bringing about an encounter with the defendant, the prosecution may cross-examine him as to any former statements made by him relative to the matter inconsistent with his direct testimony, and to any matter connected with it tending to show the mental condition of the deceased towards the defendant.

2. SAME TESTIMONY BY WITNESS AS TO MEANING OF WORDS USED.

On a trial for murder, a witness cannot testify as to his understanding of the meaning of words used by another, or to inferences drawn by him from a combination of circumstances tending to throw light on the question of feeling between the defendant and the deceased. Such matter is for the jury, on proof of the words or circumstances themselves, and if the testimony concerning the witness' understanding or inference is stricken out, and the jury is instructed to disregard it, the court does not in so ordering commit any error prejudicial to the defendant.

3. SAME-WITNESSES IN MURDER TRIAL-REDIRECT EXAMINATION.

On a trial for murder, a witness for the prosecution may, on redirect examination, testify as to a statement made by the defendant relating to and connected with the circumstances of the homicide, as detailed on the examination in chief and on his cross-examination.

4. HOMICIDE-MURDER-TRIAL-PROVINCE OF JURY IN FIXING PUNISHMENT. On a trial for murder, if the jury, after agreeing to find the defendant guilty of murder in the first degree, are unable to agree upon the punishment, and thereupon come into court; and the judge instructs them explicitly that they have the right to fix the penalty at death, or imprisonment for life, or to bring in a verdict of guilty of murder in the first degree without specifying the penalty; and the jury subsequently returns for further instructions, when the judge again charges them as above stated, adding that "if there is nothing specified in your verdict as to the penalty, the court will have its duty to perform, but what that duty will be the court will not say;" and the jury subsequently brings in a verdict of guilty of murder in the first degree, without specifying the penalty; and counsel for the defendant then state to the jury that the effect of their verdict is to impose upon him the death penalty, whereupon one of the jurors says: "If that is the effect of the verdict, it is not my verdict;" but upon polling the jury such juror, after considerable hesitation, consents to the verdict, and states that he leaves "the responsibility to the court, "-such instructions are without error, as the jury could not have been misled thereby on the question of punishment.

5. SAME-FAILURE OF JURY TO FIX PUNISHMENT.

Where, upon a trial for murder, the defendant is convicted of murder in the first degree, he cannot escape punishment because the jury that convicted him by a valid verdict may have disagreed upon the question of punishment, or returned a verdict which was silent as to the penalty.

In bank. Appel from superior court, county of San Joaquin. Eagon & Armstrong, for appellant.

E. C. Marshall, Atty. Gen., for the State.

MCKEE, J. Uzza F. French, defendant and appellant in this case, was convicted by the verdict and judgment of the superior court of San Joaquin county of murder in the first degree, for the unlawful killing of Peter Wells, and sentenced to suffer the death penalty; and

he appeals from the judgment, and the order denying a motion made by him for a new trial.

The homicide was committed on the fourteenth of March, 1884, in the town of Oleta, in Amador county.

The contention made on the appeal is that the conviction is illegal because of irregularities and errors in law committed at the trial, against the exceptions of defendant. The errors assigned are predicated upon the admission of testimony against the defendant's objections and exceptions, and upon instructions given to the jury to his prejudice.

1. Marcellus Lee, a witness for defendant, on his examination in chief, gave testimony tending to show that between 8 and 9 o'clock of the morning of the day of the homicide, Wells, having made preparation to leave his house for the town of Oleta, asked the witness, who was then in his employment, to go with him; but the witness refused to go, and urged Wells not to go, because he believed "from what had occurred a day or two before that French would be at Oleta;" and he said to Wells, "It would be going into the enemy's camp;" to which Wells replied, "He could not help that; he was going, and if there was to be trouble, there was no use in trying to stave it off." About 9 o'clock A. M. Wells rode off to Oleta in company with his son. On cross-examination the witness testified, without objection, that he and Wells were the only persons present at the conversation stated in his direct testimony; but that he had had on that morning two or three other conversations with Wells, at which other persons were present; and that, on the day before the conversation, he had heard Wells say he was going to Oleta to hunt for one of his horses which was lost. After so testifying on his crossexamination, the state asked him this question: "Within three or four days after the shooting did you have any conversation with Mrs. Wells, in which you said you had told Peter Wells that if he would. let you have a rifle you would put French in a prospect hole, and that Wells replied he didn't want anything of that kind in his.'" To that question defendant's counsel objected: "The answer must be immaterial, and to lay the foundation for a contradiction of an immaterial statement; it is immaterial." The objections were overruled and the defendant excepted. Answering the question, the witness testified "that in a conversation which occurred a day or two before the trouble, I told Wells, If I thought that man [French] was hunting us in the chaparral, I would take a rifle and go down and get him;' and Wells said to me, No;' and I think I told Mrs. Wells what, in substance, I said

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to Wells."

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It is contended that neither question nor answer was in response to the matter testified by the witness in his examination in chief. But the matter of the direct testimony of the witness was the fact that Wells, being armed, left his own house, on the morning of the

day of the homicide, to go to Oleta, where he knew French was, and the statement made by him, before starting, as to the trouble between French and himself, from which the jury could have drawn the inference that the object of Wells in going to Oleta, under the circumstances, was to bring about a rencounter between French and himself. Whether Wells went to Oleta with a hostile or peaceable intent towards French-with a determination to force a fight or quarrel upon him or not-was therefore a matter presented to the consideration of the jury by the direct testimony of the witness; and in the consideration of that question the jury were entitled, on the cross-examination of the witness, to any former statements made by him. relative to the matter inconsistent with his direct testimony, and to any matter connected with it tending to show the mental condition of the deceased towards the defendant. The Code rule is that a witness in a civil or criminal action may be asked, on cross-examination, whether he has made any statement inconsistent with his direct testimony relative to any fact therein stated, and may also be examined as to any matter relevant to or connected therewith. Sections 2048, 2049, 2052, Code Civil Proc. Besides, in the cross-examination of a witness, much must be left to the discretion of the judge who presides at the trial. Unless the record on appeal shows an abuse of discretion, appellate tribunals do not interfere. We think there was no abuse of discretion in overruling the objections made to the question. The matter stated in the question and answer was not irrelevant or immaterial.

2. The next assignment of error is that the court, at the close of the evidence given for defendant, permitted the prosecution to ask of Joseph Young, a witness called by the prosecution in rebuttal of certain evidence given by defendant, the following question: "During your association with the deceased, Wells, and the actions on his part, from words of his, and a combination of all the circumstances that would tend to throw light on the subject,-what was the feeling, and the expressed feeling, between the deceased, Wells, and the defendant ?" The question was asked of the witness on his redirect examination. It was objected that the question was incompetent, irrelevant, and immaterial; but the court, against the objections and exceptions taken, permitted the witness to answer.

We think the ruling was erroneous. A witness cannot testify to his understanding of the meaning of words used by another, or to inferences drawn by him from a combination of circumstances tending to throw light on the question of feeling between two persons. That is a matter for the jury, upon proof of the words or circumstances themselves. But although the question was answered, the answers of the witness were afterwards stricken out. In answering the questions the following took place:

Witness. "He [Wells] told me if Uz [French] would come there he would be treated just as well as ever.' I never heard him make any threats at all.”

The Court. "The last part of his answer is stricken out." Witness continued: "He said if Uz would come to his house he would be treated just as well as he ever was; this was said two or three days before the shooting. * * * "" Question. "I understand the remark made was two or three days before the killing?" Answer. "Either two or three." Defendant's Counsel. "I move that that be stricken out. * ** *"The Court. "You have your exception." Defendant's Counsel. "We move to strike out the answer of the witness: If he had come to his house he would have been treated just as well as ever,' on the grounds that it is incompetent, irrelevant, and immaterial." District Attorney. "Let it be stricken out. We do not care anything about it."

This was the only testimony in the case stricken out by consent; and the court, in its charge to the jury, instructed upon the subject as follows:

"The court instructs the jury that they should carefully exclude from consideration all matters of evidence offered and excluded, and also that which was admitted and afterwards stricken out, either by express order of the court, or by consent of counsel by whom it was adduced.”

As, therefore, the answers of the witness were stricken out, and the question remained unanswered, the ruling of the court as to the question did not affect any substantial right of the defendant.

3. The next assignment of error is that the court overruled objections made by defendant to a question asked by the prosecution on the redirect examination of a son of the deceased, who had been examined in chief by the district attorney and cross-examined by defendant's counsel. The question was this: "State whether, as defendant passed by you, going down the street, did you hear him say anything about Joe Young." Defendant's Counsel. "We object to it; that is something not testified before." The court overruled the objection, and the witness answering, testified: "He [French] said: If I had the other load into Joe Young I would be satisfied.' We think there was no error committed in overruling the objection. The witness testified on his examination in chief to the effect that on the morning of the fourteenth of March he left home with his father to hunt for a horse which was tracked to a stable in Oleta; that they remained at the stable four or five minutes, and then walked from there into Main street, where, after walking about 150 yards, they saw defendant, with a double-barreled shotgun, sitting in front of a saloon on the opposite side of the street; and, according to the testimony of the witness, the following occurred in the street:

"French, when he saw us, called out: Stop, you s of a b―; I've got you where I wanted you!' 'Hold on,' said father; you are accusing me wrongfully.' About that time French raised the gun and cocked it. My father stopped, and did not move after that at all. My father said: Hold, now! you are too fast;' and French said: You are a damned liar;' and father said: You are accusing me wrongfully. I don't want any of this.' French said: 'I do; I have been hunting for it;' and father said: Uz, set down your gun, and come to me like a man, and we will settle it;' and French said: You are a liar and a s - of a b―;' and then he said: Take the children out of the way; get out of that window, woman!' and then he shot.

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Saw my father's hands,--there was nothing in them; they were by his side. My father did not make any attempt or demonstration towards drawing a weapon. After the shot my father fell backwards on the porch. He was shot in the forehead with a buckshot."

On his cross-examination the witness also testified:

"About four days before that French said he had heard considerable threats that my father and Joe Young had made against him. Father knew what French had said. My grandfather had told him."

After which the witness, being recalled by the prosecution, on his redirect examination testified, without objection, that French, just after he shot, stepped into the saloon, and immediately stepped out again, with his gun in his hand, and started to go down the street, passing within four or five feet of the witness. Upon this the question, to which the defendant objected, was asked and answered; and as both question and answer related to and were connected with the circumstances of the homicide, as detailed on the examination in chief and cross-examination of the witness, the objection taken to the question was properly overruled.

4. The last assignment of error is that the jury were misled by the instructions of the court, upon the question of punishment, to return a verdict of murder in the first degree, without a declaration of what the punishment should be. In its elaborate charge to the jury the court several times-twice of its own motion and once at the request of the prosecution-instructed them as to their powers and duties upon the question of punishment. In those given of its own motion. the court instructed them substantially in the language of section 190 of the Penal Code, which declares: "Every person guilty of murder in the first degree shall suffer death or confinement in the state prison for life, at the discretion of the jury trying the same." And the instruction upon the same subject, given at the request of the prosecution, was as follows:

"Should the jury believe from the evidence, and beyond a reasonable doubt, that the defendant is guilty of murder in the first degree, and should the jury so find, then the jury has the right, in such verdict, to fix the penalty of death or of imprisonment in the state prison for life. The jury has the right, in case they find a verdict of guilty of murder in the first degree, to do so without fixing the penalty. In other words, gentlemen of the jury, if you find the defendant guilty of murder in the first degree, and believe that he should be punished by death, you may say in your verdict, We, the jury, find the defendant guilty of murder in the first degree,' or if you find him guilty, and believe that his punishment should be confinement in the state prison for life, you should say so in your verdict."

The instructions which were given were correct. People v. Jones, 63 Cal. 168; People v. Murback, 64 Cal. 369.

Upon receiving the charge of the court the jury retired for deliberation, and afterwards returned into court, and by their foreman reported that they had not agreed upon a verdict, and that a juror desired to be further informed upon the question of punishment. The juror referred to then arose and the following proceeding took place: