Reset A A Font size: Print

District Court of Appeal, Third District, California.


Cr. 1875.

Decided: December 12, 1944

J. Oscar Goldstein and Burton J. Goldstein, all of Chico, for appellant. Robert W. Kenny, Atty. Gen., and David K. Lener, Deputy Atty. Gen., for respondent.

On motion for a rehearing appellant's attorney, who did not represent him at the trial of the case, earnestly contends that we have misquoted and omitted important evidence in our opinion. It is claimed our abridgment of testimony in the interest of brevity has resulted in misconstruction of evidence. Many pages of evidence are correctly quoted in the petition, but they merely show a conflict of evidence. One quotation of evidence in the opinion is challenged on the ground that it was stricken from the record. But the identical answer of the witness, which was stricken out, was restated by him on the following page of the transcript and remained in the record without objection. That fact was evidently overlooked by the petitioner. On examination we found each challenged quotation of evidence to be supported by the record. The absolute accuracy of the abridgment or interpretation of evidence is always open to argument owing to the inherent infirmity of language to express the exact thought of a witness. With the object of brevity, we assume a court is not warranted in unnecessarily quoting evidence at great length. We are convinced the opinion correctly construes the evidence in every essential respect. To be sure we have quoted evidence favorable to the support of the verdict, which is the duty of a reviewing court. In is not the province of a reviewing court to weigh evidence or to pass on the credibility of witnesses. The petitioner has apparently overlooked that rule. As an illustration, appellant challenges our statement that Stafford asked permission to get his clothes from the bunkhouse or that the defendant previously threatened to get his gun. On page 376 of the transcript Stafford testified: ‘I asked him to give me time to get my clothes. * * * He hollered he would get him gun.’ On the following page Stafford said, ‘I told him to give me time to get my clothes.’ Of course Stafford had to go to the bunkhouse to get his clothes. The defendant said at page 694 of the transcript: ‘I looked north and I seen his car parked in front of the bankhouse * * * so I went downstairs and got my gun and walked out and got in my car and drove over to the bunkhouse * * * to look after my property.’

The evidence indicates that the defendant knew that Stafford had breakfast at the ranch Sunday morning. At page 689 he stated: ‘I was on the porch by the kitchen. * * * As I was fixing the lunches I noticed Stafford come out of the dining room.’ Mr. Griffin testified that Mr. Corlett ‘appeared there,’ in the dining room. Mr. Corlett testified at page 693: ‘Usually when you fire a man he stays all night and has breakfast the next morning before leaving.’ He therefore conceded that Stafford was rightfully on the premises according to his own custom, and that he was therefore not a trespasser.

Moreover, the appellant now definitely admits that the evidence is sufficient to support the judgment. We assumed the defendant challenged the sufficiency of the evidence to support the judgment. It seems inconsistent to challenge alleged inaccuracies of quotations of evidence and at the same time admit that the evidence is sufficient to support the judgment.

The appellant insists that the court failed to pass upon assignments of errors in rulings upon the evidence in the course of the trial ‘totalling in number some 94 and 95, which were highly prejudicial.’ We did examine the record with relation to each of those assignments of error and concluded there was no prejudicial error in any of them. We so stated in our opinion. We assume a court is not warranted in extending an opinion to undue length to specifically pass upon 94 separate assignments of that nature, none of which, upon examination, appears to have substantial merit.

The petition for rehearing is denied.


Copied to clipboard