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Defendant was indicted for the murder of Albert N. McVicar. Upon trial she was found guilty of murder in the first degree and the death penalty was imposed. From the judgment and from the order denying her motion for a new trial she prosecutes her appeal.
It is not contended that the evidence is insufficient to sustain the verdict and judgment, but complaint is made of the ruling of the court upon challenge to the panel of jurors, of certain of its rulings in admitting and refusing to admit evidence, and of other rulings refusing to give instructions proffered by the defendant. To the better understanding of these questions, the facts which the prosecution undertook to establish, require brief narration. Evidence was offered to show that the defendant married Albert N. McVicar, the deceased, in Bisbee, Arizona, in 1902. Thereafter she separated from him and lived more or less continuously with her mother near Jackson, Amador County, California. In August, 1905, she went with one Eugene Le Doux, who resided near her mother's home in Amador County, to Yolo County, where a marriage license was procured and the two were married before a justice of the peace. After this marriage to Le Doux she returned with him to her mother's house, where they lived together as man and wife. Upon March 11, 1906, she met McVicar by appointment at Stockton, California. McVicar was employed as a timberman in a mine at Jamestown, was about thirty-seven years of age, weighed about one hundred and eighty-five pounds, was vigorous and in good health. Defendant and McVicar engaged a room at the California Hotel at Stockton and remained there one night, McVicar registering, in the presence of the defendant, as "A.N. McVicar and wife." The next day the two went to a furniture store in Stockton, purchased household furniture, gave their residence as Jamestown, and ordered the furniture shipped to that place. That day or the next day they went to San Francisco, and from San Francisco the furniture company in Stockton received a telephone message from the defendant,
asking if the furniture had as yet been shipped to Jamestown, and stating that if it had been it was to her regret, as she desired to make other shipping arrangements. On the fifteenth day of March the defendant and McVicar left San Francisco and traveled to Jamestown, spending the night at one of the hotels, where again they were registered by McVicar as "A.N. McVicar and wife." On the following day McVicar resumed his work at the mine. The defendant informed the friends and acquaintances of McVicar that they had come to Jamestown to reside, and the two visited houses located near the mine with the apparent purpose of selecting a residence. The furniture which they purchased had arrived and was at the depot. McVicar continued in his employment until Wednesday, the twenty-first day of March. At that time he ceased work and drew from the company all the money due him, amounting to $163. The two left Jamestown together by train on the morning of March 23, 1906, which was Friday, and went to Stockton, reaching the city just before the noon hour. They gave as a reason for their change of plans that defendant had represented to McVicar that her mother in Amador County would employ and pay him better wages than he was receiving; that he was to aid in farming operations, and in driving or superintending the driving of her mother's teams. About two o'clock in the afternoon of the day of their arrival at Stockton they went again to the furniture store to make substitutions for furniture which they had purchased, stating that because of a change in their plans many of the articles which they had selected would be of no use to them. The proposed exchanges were agreed to by the furniture company, and McVicar in the presence of the defendant, said that the articles were to be shipped to Amador County, and upon the suggestion of the defendant gave the consignee's name as Eugene Le Doux, "my brother-in-law." After transacting this business the two went again together to the California hotel, again registered as "A.N. McVicar and wife" and were assigned to the room which they had previously occupied. They were seen going in and out of the building together upon the afternoon and evening of that day. McVicar appeared on the streets at half-past eight o'clock in the evening and purchased two or three flasks of whiskey at a neighboring saloon. The two were in the room at nine fifteen o'clock, and their light
was burning as late as half-past twelve o'clock. Early on the following morning, which was Saturday, the defendant was seen by several persons in a corridor of the hotel. At about ten o'clock in the morning she went to a store about half a block from the hotel and purchased a trunk, for which she paid, giving directions to have it sent to the California hotel and to room 97, which was the room she and McVicar had been occupying. Soon after this she went again to the furniture company and discussed the matter of the exchange of the goods which had been purchased. She spent about an hour in the store looking over different articles and purchased several. She left the store about half-past eleven. A few minutes thereafter she entered another store, where she purchased a rope, stating that she wanted to use it to bind a heavy trunk in which she intended to ship some dishes. This rope she carried away with her. From there she went to an express stand upon the street and engaged an expressman, sending him to the depot to bring a suit case, and enjoining him to make haste as, upon his return, she would have a trunk for him to take to the one o'clock train. The trunk had been delivered at room 97, but, the door being locked, it was left standing in the hall. The expressman obtained the suit case and in like manner and for the same reason left it in the hallway. At about fifteen minutes past twelve the defendant appeared again at the stand of the expressman and told him that she could not be ready to take the one o'clock train, asking him to come at two o'clock and get the trunk. She then went to a millinery store, purchased and paid eight dollars for a hat, next, to a dry-goods store, where she purchased and paid for articles of wearing apparel to the value of $15.75. In the store she stated that it was necessary for her to go to San Francisco but that she would return by the first train in the morning, as her husband was coming down from Jamestown to meet her. About two o'clock in the afternoon she sent a telegram to one Joseph Healy in San Francisco, asking him to meet her upon the train's arrival. About the same time the expressman went to the California Hotel and, assisted by another man, took the trunk which was in room 97, the trunk being packed, fastened it with the rope which was lying in the room, carried it to his wagon and delivered it at the Southern Pacific depot. The defendant had gone to the depot
before the expressman arrived and had displayed considerable uneasiness over the fact that her baggage had not come, and undertook to telephone to the California Hotel concerning it. It was at this time that the expressman came in sight and she abandoned her effort to telephone. The expressman delivered the trunk and the suit case in the baggage room of the depot and went away. The trunk was placed on one of the baggage trucks of the company and remained there for about an hour, until the four o'clock train reached the station. It was put into the baggage car of that train. It was then discovered that the trunk bore no check or other identification mark. Upon this discovery it was put back upon the truck, where it remained until five or six o'clock in the afternoon. It was then carried into the baggage room, where it remained until about half-past eight o'clock in the evening. In moving the trunk the suspicions of the baggageman were excited by a peculiar thumping noise which came from it when it was turned over or on end. One of the baggagemen, who had been in that employment for fourteen years and had handled dead bodies every week, smelled at the lock of the trunk and detected an odor which he believed to be that of a human body. The chief of police and the district attorney were sent for, and the trunk was opened. Inside of the trunk was found the body of Albert N. McVicar. The body was entirely dressed except for the absence of a coat and shoes. An autopsy was performed that evening and from a visual inspection every vital organ appeared in a normal and healthy condition, and there were no external wounds of consequence and no evidence of the use of any irritant or corrosive poison. Certain portions of the various organs of the body, including the bladder holding the urine, were removed for further examination. These parts were taken to San Francisco and there analyzed by a chemist, whose examination revealed the presence of morphine in quantity more than sufficient to have caused death. The defendant took the four o'clock train from Stockton to San Francisco, and remained in San Francisco at a hotel registered under the name of M.T. Williams. Joseph Healy met her in San Francisco. The next day she purchased a ticket for Stockton and took the Santa Fe train, but proceeded no further than Antioch, in Contra Costa County. Healy accompanied her as far as Point Richmond.
Leaving the train at Antioch, she went to the Arlington Hotel and registered as Mrs. Jones. This was on Sunday. The following day she was placed under arrest. It was further shown in evidence that while McVicar and defendant were in San Francisco the defendant had received from Dr. Dillon a vial filled with half-grain morphine tablets, and that thus the defendant was in possession of the kind of poison which caused McVicar's death. It was also shown that the defendant had represented that McVicar was in very poor health and had not long to live, while, in fact, he was in excellent health. Defendant after her arrest asserted that there was a third person in the room at the time of McVicar's death, a man by the name of Joe Miller; that Miller had gone to San Francisco with her on the train after the death and came across the bay with her to San Francisco from Point Richmond, and then decided not to accompany her further. But it was shown by the witness Healy that it was he only who had accompanied her. The watch and chain of the deceased were in the possession of the defendant at the time of her arrest. From these facts the prosecution argues that the defendant deliberately planned to trick and deceive McVicar, for whom manifestly she could have had no affection, into drawing his money, going with her to Stockton, purchasing and paying for furniture to be shipped to Eugene Le Doux, whom she represented to be her brother-in-law; that then, out of love for Le Doux, and to avoid exposure of her dual life and bigamous relationship with him, it became necessary, as a part of her plot, to kill McVicar as she did. The defense offered to prove that the defendant had been a common prostitute and had been placed in a house of prostitution by McVicar.
During the impanelment of the jury the court ordered a special venire to issue for seventy-five men. The order was directed to the sheriff of the county. (Code Civ. Proc., sec. 226) Upon the return of the venire the defendant challenged the panel under section 1064 of the Penal Code on account of the bias and prejudice of the sheriff. Evidence was taken upon this, from which it was made clearly to appear that the sheriff had been engaged in gathering evidence for the people, had procured witnesses for the people, had talked with these witnesses, and had thus come to entertain an unqualified opinion that the defendant was guilty. True, the
sheriff testified that, notwithstanding this opinion, he could try the case "probably as well as any man that would sit upon the jury," and that he would be governed entirely by the law and the evidence. But this answer does not to the slightest extent avoid the effect of his previous declarations. So far as the challenge for bias is concerned, the sheriff in such a case is put by the law precisely in the position of a trial juror (Pen. Code, sec. 1064), and a state of mind which would disqualify a juror equally disqualifies the sheriff. The possession of such an opinion absolutely disqualifies, saving only where the opinion is founded upon public rumor, statements in public journals, or common notoriety (Pen. Code, sec. 1076), and where, notwithstanding such an opinion so founded, it is made to appear to the court that the person can and will act impartially and fairly upon the matter to be submitted to him. But where the opinion is founded, as is here shown to be founded, not upon public rumor, or statements in the public journals, or common notoriety, but upon a direct investigation of the facts, the disqualification is absolute, and the testimony of the juror or sheriff that, notwithstanding such opinion, he could and would act fairly and impartially, is utterly without substance or weight. (People v. Landis, 139 Cal. 429, [73 P. 153]; People v. Helm, 152 Cal. 532, [93 P. 99].)
Section 1064 of the Penal Code declares that when the panel is formed from persons whose names are not drawn as jurors, a challenge may be taken to the panel on account of any bias of the officer who summoned them which would be good ground for challenge to a juror. The sheriff to whom the order was issued having clearly been shown to be disqualified, the question is presented, Does the disqualification of the sheriff extend to his deputy? or, phrasing it differently, Is a deputy qualified to act where his principal is disqualified? It is not disputed, and indeed has been decided, that the deputy who actually summons the veniremen under section 1064 may be disqualified and the panel successfully challenged for such disqualification under the section above cited. (People v. Ryan, 108 Cal. 583, [41 P. 451].) Moreover, it is unquestioned that a disqualification of the deputy does not disqualify the principal. But, within the range of an extended investigation, we have discovered no authority, and none has been
pointed out to us by the respondent, which holds that the disqualification of the principal does not disqualify his deputies. Yet this is the position which the respondent takes, and which manifestly, from the necessity of the case, it is obliged to take. The contention is that the disqualification under section 1064 is a personal disqualification going only to and extending no further than the person actually summoning the jurymen. But to this position there are insuperable objections. A deputy is merely the agent of his principal. He acts solely by virtue of the power conferred upon his principal, and when the power of the principal is withdrawn, the legal ability of the deputy to act ceases absolutely. The law recognizes deputies only through their principals, and their acts must be done in the name of their principals. (Joyce v. Joyce, 5 Cal. 449; Rowley v.Howard, 23 Cal. 402.) The law has never recognized the existence of the power of the deputy to act in a given matter where that same power has been withdrawn or withheld from the principal. The reasons for this are twofold: 1. As a matter of simple logic, since a deputy is but an agent acting solely and exclusively within the power conferred upon the principal, if upon the principal has not been conferred a given power, the attempted act of the deputy is wholly without the principal's authority, and therefore absolutely void. 2. In case of the disqualification of the principal, as by interest, whatever may be the nature of that interest, it would be manifestly unjust to the adverse party if, while the law forbade the sheriff to execute a process for this reason, he could direct the execution by a deputy owing his position and its emoluments to his favor. It is too plain to require discussion that in such case the possibility of wrong or evil sought by the law to be avoided in the disqualification of the principal, would be but perpetuated, if his deputies were allowed to act. So it will be found that in no case where a principal is disqualified does the law make the slightest recognition of the deputies, or ever attempt to empower them to act. Says Blackstone (3 Blackstone's Commentaries 355): "If the sheriff be not an indifferent person; as if he be a party in the suit, or be related by either blood or affinity to either of the parties, he is not then to be trusted to return the jury, but the venire shall be directed to the coroners, who in this, as in many other instances, are the substitutes of the sheriff,
to execute process when he is deemed an improper person." Sections 4191 and 4192 of the Political Code are but enactments of this common law rule, and, as declared in People v. Fellows,122 Cal. 233, [54 P. 830], are to be construed with section 226
of the Code of Civil Procedure, from which authority to direct the special venire in this case is drawn.
An examination of the authorities will disclose that they are in unison upon the proposition. In Minott v. Vineyard, 11 Iowa, 90, the question arose, and the court declared as follows: "By section 411 the sheriff is made responsible for the acts of his deputy, and when the principal is disqualified on account of interest, prejudice, partiality, consanguinity, or from being a party to the record, his deputy is also." In May v. Walters, 2 McCord, L. (S.C.) 470, the sheriff was disqualified. It was held that the writ should have been served by the coroner and not by the sheriff's deputy. In Wood v. Carpenter, 9 N.H. 153, a writ of replevin was directed to the sheriff or his deputy. The writ was served and returned in the name of the principal by a deputy. The sheriff was the person sued. It was held that the disqualification of the principal disqualified the deputy, and that the writ should have been directed to and served by the coroner. In Hillyer v. Pearson, 118 Ga. 815, [45 S.E. 701], the sheriff was a party to the suit. It was declared that where such a disqualification arises it is mandatory that process shall be directed, not to the sheriff or his deputies, but to the coroner, and that where process was directed to the sheriff and his deputies, service of the process was void, even though made by one of the sheriff's deputies. In Knott v. Jarboe, 58 Ky. 506, where the sheriff was a party to the suit, though not personally interested in it, and served process, the supreme court said the act of a sheriff in executing process in cases in which he is a party or is interested, is so manifestly inconsistent with public policy and with the impartial administration of justice that its performance has always been prohibited, and the court proceeds: "The sheriff is never allowed to execute his own process, and so careful is the law in guarding the interest of the defendant in such a case, not even the deputy is permitted to execute the process, but it must go to the coroner, an officer not supposed to be under the influence of the sheriff. A deputy, it is true, is appointed by the
principal sheriff and regularly acts in the name of the principal, and the principal is liable for any improper conduct of the deputy in the exercise of the office. But the recourse which may be had to the principal may not be adequate to guard the interest of the defendants against the wily acts of an interested deputy." In McLeod v. Harper, 43 Miss. 42, it is declared that a sheriff is incompetent to serve a process in a suit to which he is a party or in which he is interested, and process addressed to such interested officer will be quashed on timely application to the court. Thus it is seen that all of the authorities agree upon the principle and announce the rule that where the principal is disqualified his deputy is likewise disqualified, and process served under these circumstances is voidable. Therefore, the challenge to the panel should have been allowed.
It has been said that the motive which the people ascribed for the crime and in proof of which they introduced evidence was twofold: 1. Because of defendant's love for Le Doux, with whom the people contend she had contracted a bigamous marriage and, 2. To escape the legal consequences of this bigamous relationship, when it was apparent that that relationship could no longer be concealed from McVicar. As evidence under the first ground, the people introduced certain loving and endearing letters written by defendant to Le Doux. These letters were obtained by a deputy sheriff of Amador County, acting under instructions of the sheriff of San Joaquin County, but without warrant or authority. It appears that this deputy sheriff went to the house where defendant had resided, entered upon the premises and took such letters and papers as he found, without the authority of a search warrant or any other authority, though without the objection of any person present. The only person present, who in any sense could have represented the family, was a minor brother of defendant. It is contended, and indeed it may not be disputed, that such search and seizure were absolutely unwarranted in law, though had under color of authority by an officer of the law. It was in clear violation of the constitutional guaranty, state and federal, of the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures. (Const. Cal., art. I, sec. 19; Const. U.S., art. IV.) But the question here presented
is whether these documents thus improperly obtained under the circumstances indicated, were for that reason not entitled to be received. In Boyd v. United States, 116 U.S. 616, [6 Sup. Ct. 524], there came under the court's review the provisions of a customs revenue law which authorized a court of the United States, in revenue cases, on motion of the government attorney, to require the defendant or claimant to produce in court his private books, invoices, and papers, or else the allegations of the attorney were to be taken as confessed. It was held that the law does not require actual entry upon the premises and search for and seizure of papers to constitute an unreasonable search and seizure within the meaning of the fourth amendment. A compulsory production of a party's private books and papers to be used against himself or his property in a criminal or penal proceeding or for a forfeiture is within the spirit and meaning of the fifth amendment of the constitution of the United States, which declares that in a criminal case a defendant shall not be compelled to be a witness against himself. It is further said that the seizure or compulsory production of a man's private papers to be used in evidence against him is equivalent to compelling him to be a witness against himself, and, in a prosecution for a crime, penalty, or forfeiture, is equally within the inhibition of the fifth amendment. In the later case of Adams v. New York, 192 U.S. 585, [24 Sup. Ct. 372], the question arose as to the admissibility in evidence of papers and documents illegally taken from the possession of the defendant. It was there decided that the court considers only the competency of the evidence and not the method by which it was obtained. The rule laid down in 1 Greenleaf, sec. 254, is quoted as the correct rule. It is to the following effect: "It may be mentioned in this place, that though papers and other subjects of evidence may have been illegally taken from the possession of the party against whom they are offered, or otherwise unlawfully obtained, this is no valid objection to their admissibility, if they are pertinent to the issue. The court will not take notice of how they were obtained, whether lawfully or unlawfully, nor will it form an issue to determine that question." In the Adams case it was contended that the incriminatory evidence was illegally obtained because the search warrant under which the officer acted was limited in
character, but the supreme court held that the ground was untenable, saying: "Evidence which is pertinent to the issue is admissible, although it may have been procured in an irregular, or even in an illegal manner." Boyd v. United States,116 U.S. 616, [6 Sup. Ct. 524], is reviewed and distinguished, and the decision in the Boyd case, however general its language may be, is limited solely to the instance where the defendant is compelled himself to give evidence against himself, or, where if he did not produce the demanded evidence, it was to be a confession of the truth of the matters charged. It thus appears that whatever wrong may be perpetrated by the invasion of one's constitutional rights against unreasonable search and seizure, the redress for that wrong is not in the exclusion of pertinent evidence which may be obtained by the seizure. The courts, upon the mere question of admitting or rejecting evidence, will not take cognizance of the mode of its production, unless it be shown that the defendant has been compelled himself to give or produce it. So it is said by this court in People v. Alden, 113 Cal. 264, [45 P. 327], "nor does the competency of evidence in any way depend upon the means by which it is brought to the court where it is offered in evidence."
The letters were, therefore, properly admitted in evidence.
The evidence to establish the marriage between defendant and the deceased consisted of declarations by defendant to several people, introductions to many people of the defendant by McVicar as his wife, her acceptance of this role, a telegram from defendant signed by herself as Mrs. McVicar, the repeated registration in hotels by McVicar, in the presence of defendant, of her as his wife, the cohabitation of the two, and their repute as husband and wife. The rule of Lord Mansfield, declared inMorris v. Miller, 4 Burr. 257, making necessary proof of a marriage in fact, where the charge is bigamy or criminal conversation, has been adopted and consistently adhered to in this state. (Case v. Case, 17 Cal. 598; People v. Anderson,26 Cal. 129; White v. White, 82 Cal. 427, [23 P. 276]; People v.Beavers, 99 Cal. 289, [33 P. 844].) Even the declarations or admissions of a defendant, together with proof of cohabitation and repute, are not sufficient evidence to establish such a criminal charge, without some further proof of an actual marriage. (People v. Beavers, 99 Cal. 289,
[33 P. 844].) As tending to prove the marriage in fact, the court admitted in evidence the original of a marriage license issued in the territory of Arizona, authorizing the marriage of the deceased and this defendant under the name of Emma T. Williams, and also the indorsement upon the same instrument of the certificate of the Reverend H.W. Studley, to the effect that at Bisbee, Arizona, he, a minister of the gospel, did join "in the holy bonds of matrimony, according to the laws of this territory, A.N. McVicar of the county of Cochise, territory of Arizona, and Emma T. Williams, county of Cochise, territory of Arizona." The court also admitted in evidence a duly certificated and authenticated copy from the records of the county of this license and certificate. It is contended that these papers were improperly admitted, in that there was no independent proof, either of the facts contained in the declaration of the minister, no proof that Studley was an "ordained" minister, and thus authorized under the laws of the territory to join in marriage, and no authentication of the signature of Studley. And it is said, and truly said, that such a marriage certificate is but a private writing, that proof of its execution and truth of its contents should have been made, and that the mere fact that it was a miscellaneous record of the county of Cochise, Arizona, did not prove any of these matters, nor entitle it to admission in evidence without such proof; that the certificate of recordation did not render it admissible, but merely placed the foreign record on the same footing as a domestic, leaving its admissibility depending entirely upon the pertinent rules of evidence. (Ordway v. Conroe, 4 Wis. 45; Ferguson v. Harwood, 7 Cranch, 408.) Appellant's position in this respect is absolutely sound. Wherever it is necessary, as in a criminal charge of bigamy or criminal conversation, to prove a marriage in fact as distinguished from a marriage by inference and circumstance, often termed a "common law marriage," it must be shown that the person who solemnized the marriage was one having authority so to do (26 Cyc. 358), and a paper purporting to be a marriage certificate signed by one purporting to be authorized by the laws to solemnize a marriage, is not competent evidence of the marriage unless accompanied by proof that the person making the certificate was in fact authorized to solemnize such marriage.(State v. Horn, 43 Vt. 21; Faustre v. Commonwealth, 92 Ky. 34, [17 S.W. 189].) A marriage certificate does not prove itself. Proof of the signature of the person by whom it purports to have been signed and of his authority to perform the marriage ceremony is necessary. (Hill v.Hill, 32 Pa. St. 511; Erwin v. English, 61 Conn. 502, [23 A. 753]; State v. Hodgkins, 19 Me. 155, [36 Am. Dec. 742]; State v.Winkley, 14 N.H. 480; People v. Crawford, 62 Hun, 160, [16 N.Y. Supp. 575]; Finlay v. Finlay, 31 L.J.P. M. 149; People v. Imes,110 Mich. 250, [68 N.W. 157]; Ellis v. Ellis, 11 Mass. 92.) The record of such an unacknowledged private writing as this is not made evidence of the truth of the recitals contained in it.(Brown v. Griffith, 70 Cal. 15, [11 P. 500]; Grant v. Oliver,91 Cal. 163, [27 P. 596, 861]; McCarthy v. Hart, 8 L.C. Rep. 369; Bowman v. Little, 101 Md. 273, [61 A. 1084]; State v.Thompson, 31 Utah, 228, [87 P. 709].) Where a private writing is acknowledged, the certificate thereof becomes prima facie
evidence of the execution (Code Civ. Proc., sec. 1948), but these writings were not acknowledged. Where not acknowledged, a writing must be proved in one of three ways: By any one who saw the writing executed, or by evidence of the genuineness of the handwriting of the maker, or by a subscribing witness. (Code Civ. Proc., sec. 1940.) Such execution must be shown before it is entitled to admission. (Sinclaire v. Wood, 3 Cal. 98.) In an effort then to establish a marriage in fact in proof of a criminal charge of bigamy, the evidence here offered, without supporting proof of the facts and the execution, would be clearly inadmissible. But, it is to be remembered that the criminal charge in this case was not bigamy. The evidence was offered as tending to establish a motive, and not to convict the defendant of the crime of bigamy. In establishing the motive, it was not compulsory upon the people to prove that the relation was in fact bigamous. It was sufficient to prove that the defendant believed that it was bigamous, or, in other words, believed that she was in law the wife of McVicar at the time when she subsequently married Le Doux, and at the time when, as alleged, she took McVicar's life. The motive for the crime would be as strong in the one case as in the other. Her conduct would be governed by her belief of the fact and not by the existence of the fact. To prove her
guilty of bigamy the marriage in fact would have to be shown, as otherwise there could be no second illegal marriage, and, consequently, no corpus delicti, no crime. But a motive for the homicide is satisfactorily established by showing the defendant's belief in the existence of a former legal marriage. The truth of the matter upon which that belief is founded becomes an inconsequential matter. Now, in admitting the license and certificate, it was established that the affidavit required by the laws of Arizona for the procurement of a marriage license was made by this defendant and that the signature to this affidavit was her own. It is thus shown that she contemplated contracting a marriage with McVicar in Arizona, and took steps to the end that such marriage might be legally consummated. Additionally it was shown that to the marriage certificate signed by the minister Studley were subscribed "A.N. McVicar, groom, Emma T. Williams, bride," and the signature "Emma T. Williams" was proved to be that of the defendant. Here is furnished some evidence so far as this defendant is concerned, of the truth of the declarations contained in the certificate, and whether or not this marriage to McVicar was in point of law legal, the evidence certainly went to establish that the defendant had contracted a marriage in fact which she believed to be legal, and we hold that by virtue of the proved signature of the defendant to this certificate it was admissible in evidence upon the question of her motive.
As has been stated, the theory of the prosecution was that the defendant killed the deceased because of the love she bore Le Doux and by reason of the fact that McVicar was about to discover that her relations with Le Doux were bigamous. As tending to disprove this theory of motive, the defendant offered to show and endeavored to show that her relations with McVicar were and had been illicit since 1903; that she had been placed in a house of prostitution by McVicar, and that he lived off of her earnings as a common prostitute. Appellant contends that she was entitled to have this evidence go before a jury upon the question of motive; that upon this evidence could be founded a reasonable argument against the prosecution's theory; that it would tend to overthrow any inference of her love for Le Doux; that it was not probable that a man would place his wife in a house of prostitution, while he might be willing that a mere mistress should so live;
that it would be evidence of her love and devotion to McVicar that she would so prostitute herself at his request, and give him the earnings of her shame; that it would tend to establish that her affections were centered rather upon McVicar than upon Le Doux. Clearly we think this evidence was admissible. Its weight, of course, was for the jury. Where marriage is asserted by one party and denied by the other, and where, as here, the motive of a crime is sought to be established before a jury, the whole conduct, life, and character of the parties as affecting this question, is open to inquiry. (Bell v. Clark, 45 Misc. 272, [92 N Y Supp. 163].)
Finally, upon the question of motive, the defendant asked certain instructions as follows: —
"The jury are further especially charged that the presumption of innocence is the only presumption allowable in a criminal case, and it is not overcome by any other presumption. There cannot be two presumptions standing together, one for the guilt and the other for the innocence of the accused. Consequently the presumption of knowledge, the presumption of the continuance of a fact, state or condition shown once to exist, the presumption of the continuance of life, or of marriage, are all overcome by the presumption of innocence.
"You are instructed that the presumption of innocence overcomes all other presumptions, of whatsoever kind or nature.
"If you believe from the evidence that the defendant and Albert N. McVicar were married in September, 1902, at Bisbee, Arizona, and further believe that the defendant married Eugene Le Doux in August, 1905, at Woodland, California, then, in that event, the court instructs you that before you can ascribe to the defendant as a motive for committing the crime charged a desire to avoid any question of a bigamous marriage, or any result therefrom, it must be fully and satisfactorily proved beyond all reasonable doubt that the marriage between Albert N. McVicar and the defendant had never been annulled, and that the defendant knew that it had not been."
These instructions were refused. In support of the refusal it is not asserted that the matter of these instructions was covered by others actually given. It is contended that the court repeatedly instructed upon the presumption of innocence and that this was sufficient. It was not. Since so much of the evidence had been directed to this question of motive,
the defendant was entitled to have the jury instructed with particularity as to the application of the presumption of innocence where conflicting presumptions might be said to arise. The matter is discussed in Hunter v. Hunter, 111 Cal. 261, [52 Am St. Rep. 180, 43 P. 756]. Speaking now without specific reference to the instructions asked, we hold that the defendant was entitled upon request to proper instructions upon this subject-matter. As to instructions actually propounded, the court was justified in its refusal to give them, for they go further than is warranted by the law. The instructions declare that the presumption of innocence is the only presumption allowable in a criminal case, that it is not overcome by any other presumption, but does overcome all other presumptions of whatsoever kind or nature. Such, however, is not the law. All presumptions are evidence. Conclusive presumptions (Code Civ. Proc., secs. 1961, 1962) are not overcome by the presumption of innocence, nor are many disputable presumptions so overcome. Over certain disputable presumptions, though not over all, the presumption of innocence will prevail. Instances of disputable presumptions over which the presumption of innocence will prevail are given in Hunter v.Hunter, 111 Cal. 261, [52 Am. St. Rep.180, 43 P. 756]. But, on the other hand, it is a presumption that every person is sane. Insanity may be shown and thus overcome the presumption. Yet, in the absence of evidence, the presumption of innocence would not prevail so as to justify a jury in presuming against sanity. Furthermore, the proposed instructions declare that the prosecution must fully and satisfactorily prove beyond all reasonable doubt that the marriage between McVicar and the defendant had never been annulled, and that the defendant knew it had not been. So far as motive is concerned, to which this evidence was introduced, it was sufficient for the prosecution to satisfy the jury that the defendant believed that a legal marriage between herself and McVicar existed, or, stating it conversely, and more nearly in the language of the proposed instruction, it was only necessary for the prosecution to establish that the defendant believed that she had been legally married to McVicar and that the marriage had not been annulled.
To certain physicians called as expert witnesses, the prosecution addressed the preliminary question whether they had
heard the testimony of certain other witnesses. Upon answering in the affirmative, they were then asked the following question: "Now, doctor, assuming each and all of the facts and circumstances testified to by these gentlemen I have named as true, what in your opinion was the cause of the death of A.N. McVicar, the deceased person mentioned in this case?" The objection of the defendant to this question was overruled. It should have been sustained. The best way to obtain the opinion of an expert witness upon a matter which is the subject of expert evidence, is through the medium of a hypothetical question. Unsatisfactory as that method unquestionably is, it is the least objectionable known to the law. To countenance the practice here adopted would but aggravate existing evils, and destroy whatever value may attach to such evidence. It assumes that every fact which the witness has heard is in his mind, while some may have been forgotten. It allows the expert to assume that unstated evidence upon which he bases his opinion has been proved to his satisfaction, while, to the minds of the jurors, it may not have been proved at all. It permits the expert to base his opinion upon some undeclared fact or set of facts to which he may give great weight, yet which in the minds of the jurors may be entitled to little or no consideration whatever. It makes it impossible for the jury ever to determine upon precisely what facts the expert has based his opinion, and thus makes it forever impossible for them to say what weight should be accorded to that opinion. And in this view it matters not whether the evidence in the case be actually conflicting or not. The vice still remains, if it be said that the evidence is unconflicting, since it is for the jurors alone to say what weight shall be given to this or that or the other evidence tending to establish a given fact. And where the evidence is unconflicting, the jurors may hold that the evidence offered is insufficient to prove some particular fact. So it is said in People v. Akin, 66 Mich. 475, [11 Am. St. Rep. 512, 33 N.W. 828]: "An expert can never be safely permitted to state that he has heard or read the testimony of a witness or witnesses, and then base his opinion upon such testimony, without stating the particular points of the evidence, the facts upon which he rests his conclusion. There is no reputable authority for any such method of examining an expert witness." In People v.McElvaine, 121 N.Y. 250, [18
Am. St. Rep. 820, 24 N.E. 465], it is said: "We think it is not competent in any case to predicate a hypothetical question to an expert upon all of the evidence in the case, whether he has heard it all or not, upon the assumption that he then recollects it, for it would then be impossible for the jury to determine the facts upon which the witness based his opinion, and whether such facts were proved or not."
In thus pointing out what we conceive to be the best method for obtaining the expert opinion of a witness, we would not be understood as saying that every departure from that method involves error, necessitating the reversal of a case. Cases may arise where the facts upon which the opinion is sought are simple, salient, and few. If it be made to appear that the expert has heard the testimony by which those facts have been presented, it would not necesasrily be held ground for reversal that he was asked to express his opinion upon those facts, without a restatement of them. (Howland v. Oakland etc. Ry. Co., 115 Cal. 487, [47 P. 255].) But the danger in a departure from the approved procedure is that, in the generality of cases, the facts themselves are in question and dispute, are numerous and complicated, and, under these circumstances, injury may be worked to a litigant by an adverse expert opinion so adduced.
We have thus discussed all of the matters which we deem necessary in contemplation of the new trial which must be ordered, and for the foregoing reasons the judgment and order are reversed and the cause is remanded for a new trial.
Lorigan, J., and Melvin, J., concurred.