THE PEOPLE v. TERRENCE SMITH, 26 Cal. 665

By the Court, Sanderson, C. J. The defendant was indicted for the crime of murder, and upon the trial was convicted of murder in the second degree. The only error assigned relates to the exclusion of certain testimony offered on the part of the defendant.

It appears that the homicide was committed between nine and ten o’clock in the forenoon, and the defense offered to prove that there had been a quarrel and fight between the deceased and the defendant between three and four o’clock in the morning of the same day, in which the deceased had stabbed the defendant twice, and that the last fight was the result and a part of the first. This evidence was excluded by the Court upon the ground that it was irrelevant. It is claimed that the evidence was admissible because the facts offered to be shown thereby constituted a part of the res gestm.

This would be so if the first difficulty was a part of the last, as stated, but it is not easy to perceive how or by what kind of testimony two fights with an interval of six hours between them, during which time the parties had not met, can be proven to have been but one transaction. It seems to us that when counsel offered to prove that these two fights were in fact but one, they promised more, in view of the lapse of time and the separation of the parties, than their witness could have performed.

We think it is clear that the evidence was not admissible, upon the ground that the first fight was a part of the res gestee. If admissible at all on the part of the defense, it could be so only upon the ground that the first fight wras the provocation for the second. But if the first fight is regarded as a provocation for the second, the interval between them was sufficient for the voice of reason and humanity to be heard, and the killing therefore attributable to deliberate revenge, and punishable as murder. The second fight was sought by the defendant, 'armed with a knife and pistol.

The deceased told him that he was unarmed and unable to fight him; yet the defendant forced the quarrel, and ended it by stabbing and killing his adversary. Under all the circumstances, we think it is a little surprising that the District Attorney did not prove the first fight for the purpose of showing a grudge and deliberate revenge on the part of the defendant; and had he done so it is more than probable that the verdict would have been for murder in the first degree instead of the second.

The defendant has more cause to rejoice than to complain of the ruling of the Court. (Wharton on Homicide, 179, et sequens.) Judgment affirmed.