People v. Callego

California Supreme Court

People v. Callego

65 P. 572, 133 Cal. 295, 1901 Cal. LEXIS 905

CourtCalifornia Supreme Court

DecidedJune 26, 1901

DocketCrim. No. 733.

StatusPublished

This text of 65 P. 572 (People v. Callego) is published on Counsel Stack Legal Research, covering California Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Callego, 65 P. 572, 133 Cal. 295, 1901 Cal. LEXIS 905 (Cal. 1901).

Pincite

Opinion

TEMPLE, J.

The defendant was convicted of murder in the second degree, and appeals from the judgment and from an order refusing a new trial. The only question of importance is, whether there was sufficient evidence to warrant the verdict. It is the old case where it is contended that the corpus delicti was not satisfactorily shown. It is a charge of child- *296 murder, and it is contended that there was no proof, — 1. That the child is dead; 2. If dead, that it was killed; and 3. That if it was killed, it was not shown that the defendant killed it.

I think all these contentions are well grounded, and especially the last. The child was born alive, and soon after was taken by the defendant, who was its father, under circumstances which indicated at least an intention that the mother, who was unmarried, should not have it. It appears that he put the child in a grain-sack and hung it in a tree so near the house that its cries could be heard in the cabin where the mother was, and were heard at times for three days and nights, and it was alive on the morning of the fourth day, when the defendant’s wife took it away. Since that time it has never been seen. Defendant lived about a mile and one half from the cabin in which the child was born, and the only proof of death was that the defendant’s wife carried it in a closely tied package attached to her saddle. This is hardly sufficient, but if it were, the presumption is that the child was alive when she took it. The defendant left the place where the child was born, a few minutes after the child was taken by him, and it does not appear that he was on the premises afterwards. He was not living with the mother of the child, but a brother and sister of the mother were there. He may have hung it in a tree with the intent that it should die of starvation, although if that was his purpose, it was a strange thing to do, since the mother and all in the house could hear its cries. But however that may be, there is no evidence which tends to prove that it did die of starvation, or without other cause.

The judgment is reversed and a new trial ordered.

McFarland, J., Garoutte, J., ,and Van Dyke, J., concurred.

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TEMPLE, J.

The defendant was convicted of murder in the second degree, and appeals from the judgment and from an order refusing a new trial. The only question of importance is, whether there was sufficient evidence to warrant the verdict. It is the old case where it is contended that the corpus delicti was not satisfactorily shown. It is a charge of child- *296 murder, and it is contended that there was no proof, — 1. That the child is dead; 2. If dead, that it was killed; and 3. That if it was killed, it was not shown that the defendant killed it.

I think all these contentions are well grounded, and especially the last. The child was born alive, and soon after was taken by the defendant, who was its father, under circumstances which indicated at least an intention that the mother, who was unmarried, should not have it. It appears that he put the child in a grain-sack and hung it in a tree so near the house that its cries could be heard in the cabin where the mother was, and were heard at times for three days and nights, and it was alive on the morning of the fourth day, when the defendant’s wife took it away. Since that time it has never been seen. Defendant lived about a mile and one half from the cabin in which the child was born, and the only proof of death was that the defendant’s wife carried it in a closely tied package attached to her saddle. This is hardly sufficient, but if it were, the presumption is that the child was alive when she took it. The defendant left the place where the child was born, a few minutes after the child was taken by him, and it does not appear that he was on the premises afterwards. He was not living with the mother of the child, but a brother and sister of the mother were there. He may have hung it in a tree with the intent that it should die of starvation, although if that was his purpose, it was a strange thing to do, since the mother and all in the house could hear its cries. But however that may be, there is no evidence which tends to prove that it did die of starvation, or without other cause.

The judgment is reversed and a new trial ordered.

McFarland, J., Garoutte, J., ,and Van Dyke, J., concurred.

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Bluebook (online)

65 P. 572, 133 Cal. 295, 1901 Cal. LEXIS 905, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-callego-cal-1901.