course, this instruction in the Phelan Case was absurd, because the degrees of burglary are founded on the time of the commission of the crime, whether in the daytime or nighttime, ard have no reference to the intent of the party charged; but the case was reversed for the giving of the instruction because it took away from the jury the right to consider the drunkenness of the defendant in determining the intent or purpose with which he entered the building. The principle would have been the same if burglary had not beea divided into degrees at all. The court say: "As given, the instruction withdrew from the consideration of the jury evidence which the Code says a jury may consider in determining the intent with which an act is committed. * * * The instruction that the jury could not consider that evidence for any other purpose than that of determining the degree of the crime is clearly erroneous, and for that error the judgment appealed from must be reversed." And in People v. Vincent, supra, the court, commenting upon the Phelan Case said: "Burglary consists in entering a house

'with intent to commit grand or petit larceny, or any felony'; and it is apparent to the dullest apprehension that a drunken man might unlawfully enter a house without any intent whatever to commit larceny or felony. And it is equally apparent that a jury, in determining with what intent he entered, might well consider the fact that he was intoxicated: but the degree of the crime would have nothing to do with it. The court, in delivering the decision in People v. Phelan, 93 Cal. 111, 28 Pac. 855, did not consider it necessary to state that they were not dealing with a murder trial." We think therefore that in the case at bar the court clearly erred in using the language which we have considered: and any instruction in that abstract form should never be given. Whenever an essential element of a crime is the particular intent or purpose with which the act is done, drunkenness may be considered by a jury in determining whether such intent or purpose actuated the defendant; and this is so whether or not there are any degrees of the crime with which the defendant is charged.

(151 Cal. 619)

PEOPLE v. SMITH. (Cr. 1,378.) (Supreme Court of California. Aug. 9, 1907.)

1. CRIMINAL LAW-INSTRUCTIONS.

Defendan: cannot complain of the refusal of his requested instructions, the court having given others embodying the same principles.

[Ed. Note. For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 2011.]

2. SAME MATTERS EXPLANATORY OF EVIDENCE-DECLARATIONS.

As explaining what defendant meant when, on having deceased pointed out to him by his brother, defendant asked deceased. "Can you repeat them words again?" evidence of the language previously used by deceased towards de

fendant's brother about their mother, though uttered in the absence of defendant, is admissible.

3. SAME-MOTION TO STRIKE OUT EVIDENCE -NECESSITY.

There being nothing on the face of a question to indicate that an answer to it might not be relevant, material, and competent, it was necessary after its admission over the objection to the question that it was irrelevant, immaterial, and incompetent to move to strike out the answer that error may be predicated on the overruling of the objection.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 15. Criminal Law. § 2674.]

4. SAME DECLARATIONS OF CO-CONSPIRATOR. Though there was proof of conspiracy of defendant and his brother to kill deceased, yet the statement of the brother made after he had fled and was looking on at a distance, and between the first and second shots fired by defendant. "I knew he was going to get it," is inadmissible; it not being made while the declarant was aiding in furthering the object of the conspiracy, and not being a declaration in any manner in aid or furtherance of the conspiracy. [Ed. Note. For cases in point, see Cent. Dig. vol. 14. Criminal Law. § 996.]

5. HOMICIDE-SELF-DEFENSE EVIDENCE.

The defense in a homicide case being selfdefense, defendant on the issue of whether he acted on a reasonable apprehension may show not only that he was much smaller than deceased. but that he had for a long time had a disease and as a result was weak and enfeebled.

[Ed. Note. For cases in point, see Cent. Dig. vol. 26. Homicide, $ 419.]

6. SAME-HARMLESS ERROR.

The refusal to allow a physician to testify in a homicide case, in which the defense was self-defense, that defendant was afflicted with a certain disease, and as a result was weak and sick, at the time of the homicide, is not harmless, though defendant testified that he had been afflicted with the disease for a long time, and there was no evidence to the contrary.

[Ed. Note. For cases in point, see Cent. Dig. vol. 26. Homicide, § 714.]

In Bank. Appeal from Superior Court, City and County of San Francisco; F. II. Dunne, Judge.

Henry Smith was convicted of manslaughter and appeals. Reversed, and remanded for new trial.

Frank J. Murphy, for appellant. U. S. Webb. Atty. Gen., C. N. Post, Asst. Atty. Gen., and J. Charles Jones, Dist. Atty., for respondent.

LORIGAN, J. The appellant was charged with murder in the killing of one Joseph McCann in the city of San Francisco, and on trial was convicted of manslaughter. He appeals from the judgment and order denying his motion for a new trial.

It was insisted by the defendant upon the trial that the killing of McCann was committed by him in necessary self-defense. Several grounds are urged for a reversal, and in order that these may be properly considered it is necessary to refer to some of the evidence in the case. That evidence tended to show that on the afternoon of the day of the homicide (January 11, 1905) the deceased

by the defendant. The jury were entitled to know what was meant by the inquiry of defendant as to whether deceased could repeat "them words again," and to know what words of deceased defendant referred to in order to clearly understand the inquiry addressed by defendant to McCann, and as throwing light upon the purpose and motive of defendant in making it.

It is next urged that the court erred in overruling the objection of appellant to the admission in evidence of the declaration made by Fred Smith while the shooting was taking place, namely, "I knew he was going to get it." It is insisted by the respondent that the defendant cannot avail himself upon this appeal of the alleged error in the admission of this evidence, because, although he objected to the question asked, he did not, after it was answered, move to strike out the response. This point is undoubtedly good. There was nothing on the face of the question to indicate that an answer to it; might not be relevant, material, and competent evidence, and hence it was not improper to overrule the objection urged against the inquiry upon the only ground urged, namely, that it was irrelevant, immaterial, and incompetent. The question only appeared to be vulnerable to all these objections when the answer to it was given, and as that was the first and only time it appeared to be so, it was the duty of the defendant to move to strike the answer out, and having failed to do so, no error can be predicated on the overruling of the objection. People v. Williams, 127 Cal. 216, 59 Pac. 581; People v. Lawrence, 143 Cal. 148, 156, 76 Pac. 893, 68 L. R. A. 193. If this were the only point made for a reversal of the judgment, we would, for that reason, have to hold that it was not well taken; but, as the cause must go back for a new trial, we feel impelled to dispose of the question as to the admissibility of this evidence upon its merits, and now proceed to do so.

The theory of the prosecution on the trial of the case was that after McCann had used the language to Fred Smith when he first came in the saloon concerning his mother and sister the latter sought the defendant and a conspiracy was entered into between them to kill McCann, and in defense of this ruling of the trial court it is insisted by respondent that there was evidence in the case tending to show such conspiracy; that it was still existent, and its object had not been finally accomplished when the declaration was made, as the second shot had not then been fired by defendant; that, as Fred Smith was a conspirator with defendant when this declaration was made by him and was made pending the conspiracy and in furtherance of its design, it was admissible evidence against his co-consp.rator, the defendant. We cannot agree with the position of respondent, 91 P.-33

and are of the opinion this evidence is inadmissible.

We do not discuss the claim made by appellant that there was no evidence in the case supporting the theory of a conspiracy. It was insisted, on the trial, that there was, and evidence was introduced, which, it is asserted now, supported that claim. Whether there was, or was not, a conspiracy entered into between these brothers having for its object the killing of McCann is a question of fact to be determined by a jury from the evidence under appropriate instructions from the court, and as the question immediately under consideration does not involve any inquiry as to whether there was, or was not, sufficient proof of the conspiracy, that question is left, where it properly belongs upon a new trial, namely, to the jury. For the purposes of present consideration, if it should be conceded there was sufficient proof of a conspiracy, still we do not think that this declaration of Fred Smith was admissible. The rule allowing statements or declarations of one conspirator to be given in evidence as against his co-conspirator requires, not only that the conspiracy be pending and its object not consummated when the statements or declarations are made, but also that such statements, in order to be admissible, must be in aid and furtherance of the common purpose or design of the conspiracy.

The rule is stated in Cyc., vol. 8, p. 680: "Acts or declarations of a conspirator cannot be admitted as against a co-conspirator, unless such acts were performed or declarations made in aid or execution of the conspiracy." And, as to the admission of such statements or declarations, it is said in People v. Irwin, 77 Cal. 494, 504, 20 Pac. 56, 59: "No declarations except those made 'during the pendency of the conspiracy and in furtherance of its objects,' can be used against a co-conspirator. Declarations showing past acts, or expressing merely the opinion or desire of the conspirator making them, are not binding upon any one except himself, or those in whose presence they are made"-citing cases. Now, examining the declaration of Fred Smith admitted in evidence in the light of the principle declared in these authorities, it is readily observable that such declaration was in no manner in aid or execution of the asserted conspiracy, or in any way in furtherance of its objects. A declaration, statement, or act of a conspirator, to be admissible as in "furtherance" of the conspiracy, must, as the word "furtherance" ex vi termini imports, be an act, statement, or declaration which in some measure, or to some extent, aids or assists towards the consummation of the object of the conspiracy. How can it be claimed that the declaration in question was of this character? When this declaration was made by Fred Smith, the conflict between his brother and McCann was practically on, and he had fled from the scene

to a place of safety. Certainly, it cannot be pretended that at the time he answered the inquiry of the storekeeper he was doing any thing in aid of the killing of McCann, or which tended to effect that object. His declaration that he knew that the deceased was "going to get it" was simply a statement of his belief or opinion on the subject. It was not made at a time when Fred Smith was aiding in furthering the object of the asserted conspiracy, nor was it a declaration in any manner in aid or furtherance of the alleged conspiracy, and as any declaration made by him could only be admissible if it were, such declaration was inadmissible when it was not. The only authority cited by respondent in support of the ruling is the case of People v. Murphy, 45 Cal. 137, but in that case the exclamation of Mrs. Murphy, the wife of the defendant who was on trial, accompanied acts done by her in furtherance of an apparent conspiracy entered into between her husband and herself to kill the deceased. and occurred in the presence and hearing of her husband at the time of the homicide and was admissible for that reason under the rule.

The last ground for a reversal is predicated upon the refusal of the trial court to permit the appellant to show what his physical condition was on the day of the homicide. In his statement to the jury before presenting the evidence on behalf of defendant, his attorney stated that, among other matters which would be proven by the defense, it would be shown that some time prior to, and at the time of, the homicide, defendant was under the care and treatment of Dr. Newton, a physician of the city and county of San Francisco; that he was afflicted with catarrh of the stomach, and on the day of the homicide was weak and sick as a result of this disease. Dr. Newton was called as a witness by the defendant to prove these facts, but the court refused to permit him to testify on the subject. The rejection of this evidence by the court was error. The rule is uniform that, when the defense is self-defense, it is always competent to show the relative physical strength of the deceased and the defendant. The defense in this case was self-defense. It was claimed by the defendant that the deceased was a larger and more powerful man than himself; that he had pursued him, struck him, and thrown him down upon the street: that he had him clutched by the throat, had declared his intention of killing him, and was beating his head on the cobblestones; and that to prevent the deceased from inflicting great bodily injury upon him. or carrying his threat of death into execution, and under a reasonable apprehension that he would do so, he fired the shots which killed him.

In considering that defense, the defendant was entitled to have go before the jury all evidence which tended to support it. It is always a material issue to such a defense

whether defendant acted under a reasonable apprehension of the infliction upon him by deceased of great bodily injury, or death, at the time he killed him. And, as bearing upon that question, evidence of a great disparity of the relative physical condition of the deceased and the defendant is always an important and material fact to be considered by the jury. Common experience teaches that, when an attack is made without deadly weapons by one who is physically weak and feeble, upon another of vigorous physical condition and of superior strength, there is no room for asserting that any reasonable apprehension of injury from such an assault could exist, which would warrant killing the assailant. When, however, the assailant is a larger and more powerful man than the assailed, and the latter is unable to resist his attack, either on account of inferior natural physical vigor, or muscular debility occasioned through disease, it is equally general experience that such inability to resist on such account would naturally operate upon the mind of the assailed to create an apprehension of danger, which, if reasonably entertained, might justify him in killing his assailant. Whether he had grounds for a reasonable apprehension would be for the jury, and any evidence is competent which has a tendency to prove that fact. Certainly, evidence tending to show that a defendant was weak and enfeebled from disease would have a bearing upon that issue. It is only natural that one unable to successfully resist a dangerous assault made upon him because suffering from disease which has impaired his strength would more readily believe he was in imminent danger than if he were healthy and vigorous. Of course, the belief of the defendant that he was in such danger would not be conclusive. It would be for the jury to determine whether as a reasonable man he was justified in so believing. But, in determining that question, a defendant is entitled to have a jury take into consideration all the elements in the case which might be expected to operate on his mind, and, as a debilitated physical condition preventing him from successfully resisting his assailant might reasonably be expected so to do, defendant is entitled to have evidence of that fact, if it be a fact, go before the jury to be considered by them, with the other circumstances in the case, in ascertaining whether the plea of self-defense is sustained. The physical condition of the defendant is always important under such a plea in determining what a reasonable man in the position of the defendant would have done under the same conditions.

This principle of law is so well established that the citation of authorities is unnecessary. In fact, we do not understand the rule to be questioned by the respondent. Its position relative to this rejected evidence is that the defendant was not prejudiced by the ruling because he testified himself on the sub

ject of the disease from which he was suffering. It is true he did testify that he had been afflicted with the disease for almost three years and a half, and had been under the care of Dr. Newton for two years and a half prior to the homicide. IIe did not, however, testify as to the effect of such disease upon his physical condition; to what extent, if any, it affected him or impaired his strength or vigor-matters upon which it is to be assumed the physician would have intelligently and thoroughly enlightened the jury had he been permitted to do so. Nor would it be a sufficient answer to the claim of error in rejecting the evidence of the physician to say that no prejudice resulted to the defendant because the defendant himself testified on the subject, and no evidence to the contrary was offered by the prosecution. It was of the highest importance to the defendant that the fact of his debilitated physical condition at the time of the homicide should be presented to the jury in support of his claim that he acted in self-defense. He was not only entitled to testify himself on the subject, but to introduce evidence to corroborate his testimony. He was entitled to present the matter to the jury fully and under the most favorable circumstances. And in that regard it seems hardly necessary to suggest that the jury would be more inclined to favorably consider evidence as to the physical condition of the defendant coming from a reputable physician-a disinterested witness-qualified to speak accurately on the subject, than they might when coming from the defendant, whose testimony in that respect they might consider colored in vital self-interest, if for this same reason they did not reject it as untrue.

There is nothing further presented on this appeal for consideration. The judgment and order are reversed, and the cause remanded for a new trial.

ited to cases where defendant claimed the killing was justified as in self-defense, but extended to a case where defendant claimed the killing was accidental.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 26, Homicide, § 276.] 3. CRIMINAL LAW-TRIAL WEIGHT OF EVIDENCE.

INSTRUCTIONS —

An instruction that, on a trial for murder. "the commission of the homicide by the defendant being proved, the burden of proving circumstances of mitigation," etc., was on him, was not objectionable, as an intimation that the fact that defendant intentionally fired the shot that killed deceased had been proved; the jury being otherwise charged that they were the exclusive judges of the facts, and must decide only on evidence satisfying them of the existence of every essential fact beyond a reasonable doubt, that the corpus delicti must be proved by the state by competent evidence, and if the jury had a reasonable doubt as to whether or not deceased was killed by the accidental discharge of defendant's gun they must acquit him. 4. SAME-CREDIBILITY OF WITNESSES.

An instruction that a witness willfully false in a material part of his testimony is to be distrusted in others, as provided by Code Civ. Proc. § 2061, was not ground for reversal. [Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1893.] 5. SAME-FORMER -EFFECT.

CONVICTION-PUNISHMENT

Where accused after having been convicted of murder in the first degree and sentenced to life imprisonment was granted a new trial, on his application, at which he was again convicted of the same offense, his former conviction and sentence was no bar to a sentence of death on the second conviction.

[Ed. Note. For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 378. 394.] 6. SAME-EVIDENCE-PHOTOGRAPH.

Where, in a prosecution for homicide, defendant claimed that he accidentally shot deceased, and that after the shot was fired he placed the gun on the floor of the front room of deceased's cabin in front of the bed, and there was nothing in the case which made the exact position of the gun at all important, a photograph of the front room of the cabin taken six days after the homicide was not objectionable because there was some uncertainty in the evidence as to whether the gun was in exactly the same position when the photograph was taken as when first found after the shooting, there being evidence that the articles shown in the photograph, including the gun, were respectively in the same position as when the body of deceased was found the morning of the homicide. [Ed. Note.-For cases in point, see Cent. Dig. vol. 14. Criminal Law, § 893.]

7. SAME EVIDENCE AT FORMER HEARINGABSENCE OF WITNESS.

In a prosecution for homicide, evidence held to sustain a finding that a witness was out of the state at the time of the trial and could not be produced, so as to authorize the introduction of her testimony taken at the preliminary examination.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 14. Criminal Law. § 1236.] 8. SAME-ORDER OF PROOF.

That the court permitted the testimony of a witness at the preliminary examination of aceused to be admitted and read to the jury before all of the evidence to show the witness' absence from the state at the time of the trial had been produced was not an abuse of discretion, where the subsequent proof fully established such fact.

Ed. Note.-For cases in point. see Cent. Dig. vol. 14, Criminal Law, § 1611.]