People v. Lemperle

Citations

• 94 Cal. 45
• 29 P. 709
• 1892 Cal. LEXIS 632

Syllabus

<p>Criminal Law — Homicide — Evidence — Distance of Deceased from Muzzle of Pistol — Question for Jury — Opinion of Medical Expert— Error without Prejudice.—Upon the trial of a defendant charged with murder, the question as to the distance of the deceased from the muzzle of the pistol at the time of its discharge is properly a question of fact for the jury to determine, and is not a matter of special knowledge, nor a proper subject for expert testimony by a medical witness; yet the error in admitting such testimony for the prosecution is not prejudicial, where the opinion given is not inconsistent with the defendant’s evidence or theory of defense, and could not strengthen the claim of the prosecution.</p> <p>Id. — Circumstances of Mitigation — Burden of Proof—Instructions — Qualifying Words of Statute—Reasonable Doubt. —In a prosecution for murder, a charge to the jury as to the burden of proving circumstances of mitigation, justification, or excuses devolving upon the defendant, substantially embodying section 1105 of the Penal Code, but omitting the qualification contained therein, “unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable, ” is erroneous, and the error is not cured by a general charge as to reasonable doubt which may arise upon a consideration of the whole case.</p> <p>Id. — Instruction as to Self-defense. — An instruction to the jury upon the prosecution of a defendant charged with murder, that “to justify a person for killing another upon the ground of self-defense, the killing must be done under a well-founded belief that it was absolutely necessary for such person to kill the deceased to save himself from great bodily harm,” although not highly commendable, is not erroneous.</p> <p>Id.—Trial —Improper Argument of Counsel—Silence of Defendant at Coroner’s Inquest. — Where a defendant charged with murder was taken to the coroner’s inqu