Defendant was charged with murder, a jury found him guilty of manslaughter, and he appeals from the resulting judgment of conviction and from an order denying his motion for new trial. Defendant contends (1) that the giving of instructions concerning confessions and admissions was prejudicial error because there was no evidence that defendant made any confession or admission; (2) that if an extrajudicial admission of a party defendant is used as a prior self-contradictory statement to impeach him, it cannot also be considered as an admission evidencing the truth of the fact admitted; (3) that defendant was prejudiced by misconduct of the prosecuting attorney on cross-examination of defendant and his daughter; (4) that the trial court erroneously determined that as a matter of law defendant
The victim of the homicide, Ellsworth O'Donnell, was a former son-in-law of defendant. Ellsworth's former wife, Billie O'Donnell, and the O'Donnell's infant daughter resided with Billie's parents, Mr. and Mrs. Southack, during the period which is relevant here. The killing occurred on Sunday, May 15, 1951.
In March of 1950 Ellsworth had come into the Southack home, argued with Billie, put his hands at her throat, and said, "I should kill you ... I should kill the whole family." In April of 1950 Ellsworth, after having taken his child out for the afternoon, went to the Southack home with liquor on his breath. He argued with his former wife and with defendant; defendant ordered him to leave and started to telephone the police; Ellsworth ripped the telephone from the wall and broke a window and defendant's television set. As a result of this altercation Ellsworth was arrested on defendant's complaint. Defendant testified that the arresting officers told him at that time that "I would have a right to protect my home even if I had to shoot him."
On the afternoon of the killing Ellsworth made three visits to the Southack home. On the first two occasions he was alone. Billie went into the front yard and talked with him. Defendant heard him arguing with Billie about his right to see the child, cursing her, saw him kick over a garbage can on the first occasion and heard him say, on the second, "It's a good thing you came out or I'd have come in there and killed the whole damn bunch of you." On each of these two occasions Ellsworth left when Billie returned to the house and placed a call to the sheriff's office.
On his third visit of the afternoon Ellsworth was accompanied by his father. The father remained seated in his car in front of the Southack home. Ellsworth came to the front door and knocked. Billie said, "you had better go away from here because I am calling the police." Ellsworth called to his father, "They won't answer me. I will kick the God damned door in." He then kicked or struck the door violently. Defendant telephoned the sheriff's office and Ellsworth went to a neighbor's residence and also telephoned the sheriff's office. Ellsworth waited in the Southack's front yard until two deputy sheriffs came. Billie again
After further conversation with Ellsworth one of the officers went into the house and talked with defendant. This officer testified that defendant again said that if Ellsworth came into the house he would shoot him, and the officer replied that if defendant did so he would be charged with murder. The officers prepared to leave. Billie was on the front porch and Ellsworth was standing by the steps talking with her. Defendant opened the front door; Ellsworth stated that he would return at 8 o'clock with a doctor to examine the child; defendant replied that the doctor could come into the house but that Ellsworth could not and if he attempted to do so defendant would shoot him. After further argument defendant cursed Ellsworth, said, "I could shoot you without batting an eye," and fatally shot Ellsworth. Defendant rushed from the house crying, "Oh my God, I did it, I did it." The deputy sheriffs immediately took defendant into custody.
The gun with which Ellsworth was shot was a 12-gauge shotgun with a "hair trigger." Defendant testified that when Ellsworth came to the house earlier in the day he had loaded the gun and it had discharged accidentally; that when Ellsworth returned to the house for the third time he reloaded it in case he should need it to protect himself; that when he went to the doorway the daughter, Billie, was standing in it; and that he did not fire the gun at Ellsworth but that "Something hit me to the left side; I am blind on that side. I do not know what it was" and "the gun went off of its own free will." The daughter testified that she "bumped into" her father. Defendant and others testified that defendant did not threaten to shoot Ellsworth or curse him. Billie testified that the curse attributed to defendant by the prosecution was uttered by Ellsworth, who also said, "come on out and fight like a man."
The People introduced testimony of a ballistics expert who had experimented with the shotgun. Such evidence tends to show that it was most unlikely that the gun could be
Instructions as to Confessions and Admissions
Use of Prior Oral Admission to Impeach a Party Witness
Misconduct of Prosecuting Attorney
Defendant first complains of a line of questions which were asked him on cross-examination and of which the following are illustrative:
"Q [by Mr. Finnerty, deputy district attorney]. Now, at the time the gun went off in the doorway ... you did not fire that gun to defend yourself, did you? A. No, I did not fire the gun at all.
"Q. Well, then, your answer is you didn't fire it to defend yourself? A. I didn't fire the gun.
"Q. And at the time the gun went off you weren't trying to protect yourself, your daughter, your granddaughter, your house or your property, were you? A. The only thing I was doing with the gun was to scare the boy, that was all. That was the only thing the gun was taken there for."
Defendant gave a similar explanation of a variance between his statement that on Ellsworth's second visit "the only thing I know, my daughter went out to see him, I guess it was about the child, I don't know, but I didn't hear anything about that" and his testimony that on the second visit he heard specific threatening and cursing statements of Ellsworth. Defendant admitted that in his statement he had said that the night chain was on the door when the fatal shot was fired, whereas according to his testimony the door was open and he and his daughter were standing in it.
Each of the above matters, although inherently of slight significance, was relevant as having some tendency to impeach defendant; from them the jury could infer a significant change in defendant's description of the occurrences. The picture suggested by the impeaching statements is that of a man who, after having observed no particularly violent conduct on the part of Ellsworth immediately preceeding the event, shot Ellsworth through the crack of a securely chained door. The picture presented by defendant's testimony at the trial, if the testimony that the shooting was accidental is disbelieved, is that of a man who shot Ellsworth after being goaded beyond control by Ellsworth's violent and profane denunciations of and threats toward defendant and his family.
On cross-examination defendant's counsel objected to the question as to the statement on the ground that it was not impeaching. After some discussion Billie was allowed to testify that on the morning in question she had tried to telephone Ellsworth's home but that no one had answered. The trial court said, "The record has cleared itself up. Proceed." The matter was a trifling one; Billie was neither confused nor impeached; and defendant was not harmed by the asking of the question.
Defendant asserts that in two instances the trial judge erred to his prejudice in overruling objections to the cross-examiner's questions as to whether prior statements of Billie
On further cross-examination Billie was asked if she knew of her own knowledge whether or not defendant had invited a deputy sheriff and Ellsworth's father into the house shortly before the shooting; she testified that she did not know of her own knowledge. She was then asked whether in her statement at the sheriff's substation she had said that defendant "asked the sheriff to come into the house, but he didn't ask Mr. O'Donnell." She testified that she had made the statement, "but I didn't finish to what I had started to say"; the clear implication of her further testimony is that if she had been given the opportunity or questioned further she would have explained that her knowledge as to the invitation was based on hearsay and deduction. The prosecuting attorney again asked whether her prior statement was true; defendant's counsel again objected that the question invaded the province of the jury; the objection was overruled; and the witness again testified that she "didn't get a chance to finish" and that at the time the statement was taken "I wasn't in a condition of saying just exactly what had happened because I knew but I didn't remember until after this was taken."
As previously stated, defendant argues that the cross-examination as to whether the witnesses' prior statements were true was prejudicially erroneous. The cases in which this problem is presented are in conflict. (See 70 C.J., Witnesses, § 1274, p. 1081.) People v. Cordero (1925), 72 Cal.App. 526, 528 [237 P. 786], held that it was error (but not prejudicial) to ask whether prior conflicting statements were true, on the ground that it was for the jury, not the witness, to determine which of the conflicting statements were true.
On the other hand in People v. Voiler (1934), 2 Cal.App.2d 724, 728 [38 P.2d 833], defendant was asked, "Are you telling the truth now, or were you telling the truth before the grand jury?"; it was held that the question was "in substance proper cross-examination." And in People v. Campos (1935), 10 Cal.App.2d 310, 316 [52 P.2d 251], it was held proper for the cross-examiner to ask whether prior statements inconsistent with the testimony of the witness were true. Neither the Voiler nor the Campos case discusses the objections to this sort of questions which are presented by defendant here.
In People v. Glover (1903), 141 Cal. 233, 244 [74 P. 745], a witness was permitted to testify that a previous statement which was contradictory of her testimony, and which she admittedly made, was untrue. It was urged that the untruth of the statement should have been shown "by competent and relevant testimony, and not by the sweeping statement of the witness." The appellate court held, "the testimony of the witness was both competent and relevant on this point. She best of all knew which of her statements was true. She had given the one and was confronted by the other; they were inconsistent, and she had a right to explain, under section 2052 of the Code of Civil Procedure, her former statements. If, in the explanation, she declared that her former statements were untrue, this certainly was an explanation, as far as it went, and no reasonable objection could be made to this method of explaining it."
Right to be Considered as Eligible for Probation
Section 1203 of the Penal Code provides, as to eligibility for probation, that "probation shall not be granted to any defendant... who used or attempted to use a deadly weapon upon a human being in connection with the perpetration of the crime of which he was convicted ..."
For the reasons above stated the order denying a new trial is affirmed; the judgment is reversed and the cause is remanded for further proceedings in accordance with law and with specific directions to the trial court to entertain the application for probation and to determine, in accordance with the views expressed herein, whether defendant used the gun upon Ellsworth; if it determines that defendant did use the gun upon Ellsworth, the application must be denied; if it determines that defendant did not use the gun upon Ellsworth then it may grant or deny probation as may appear proper under all the circumstances.
Gibson, C.J., Shenk, J., Carter, J., and Spence, J., concurred.
Appellant's petition for a rehearing was denied October 23, 1952.
"Q. I appreciate that. Would you answer my question, however: At the time the gun went off you were not trying to protect yourself, your daughter, your granddaughter, or your property, were you?
"MR. Ross [defendant's counsel]: Just a moment before you answer that. It is objected to on the following grounds: it is incompetent, irrelevant and immaterial; it calls for a conclusion and opinion of the witness, and is improper cross examination; argumentative also.
"THE COURT: Objection overruled.
"THE WITNESS: In the matter — I don't know how you put the question, or how you want me to answer it. Yes, if any man would have come at me, naturally, I would have protected myself, or if anybody would have come to break into my home.
"Q. By MR. FINNERTY: At the time the gun was fired, was it your intention that by the firing of the gun you were protecting yourself? A. I did not fire the gun. I had no intention of firing the gun.
"Q. Then you didn't fire it to protect yourself? A. I didn't fire the gun.
"Q. The gun wasn't fired to protect yourself? A. The gun wasn't fired by me; I did not fire the gun.
"Q. At the time the gun fired, it was not fired — it was not your intention that it should be fired to protect yourself, was it? A. The gun went off accidentally; I did not fire the gun at any time.
"Q. Well, that means, then, I take it, that you weren't protecting yourself? A. I wasn't.
"MR. ROSS: I submit the question has been asked and answered.
"THE COURT: Objection is overruled. He may answer.
"Q. By MR. FINNERTY: Were you trying to protect yourself at the time the gun went off? A. I wasn't trying to do anything at that particular time because I didn't — the gun went off of its own free will.
"Q. Were you trying to protect your daughter at the time the gun went off? A. I would have if anything would have happened.
"Q. Were you, at that particular time? A. I was not trying to protect anything.
"Q. Were you trying to protect your granddaughter? A. No, I wasn't.
"Q. Were your trying to protect your property? A. Only in so far as if there would have been any violence, —
"Q. Well, at that time? A. — which there had been on plenty of occasions, and that is why I had the gun, because of the fear I had of the boy.
"Q. At that particular time, though, you did not use the gun to protect yourself; is that right? A. I did not use the gun; I did not fire the gun."