NOT

ID.—EXCEPTIONS NOT AVAILABLE-RULING ASKED FOR.—Excep

tions to the remarks of the district attorney, which were not called to the attention of the court and upon which no ruling was asked, are not available. In case of objectionable remarks by the district attorney, defendant's counsel must invoke the aid of the court to prevent the remarks from injuring the defendant, before he will

be allowed to urge the matter as error in this court. ID.—NEWLY DISCOVERED EVIDENCE-DISCRETION OF COURT.— Where the

affidavits of newly discovered evidence showed that it was mainly cumulative and partly impeaching evidence, and there were counteraffidavits, the court might consider them in the light of all that had occurred during the trial, and where no abuse of discretion appears in refusing to grant a new trial on that ground, its action will not be disturbed upon appeal.

APPEAL from a judgment of the Superior Court of Fresno County, and from an order denying a new trial. George E. Church, Judge.

The facts are stated in the opinion of the court.

Everts & Ewing, for Appellant.

The whereabouts of the defendant at the time of the crime was part of the original case, and is not evidence in rebuttal. (2 Bishop on Criminal Law, sec. 32; People v. Quick, 58 Mich. 321, 25 N. W. 302; People v. Hallhouse, 80 Mich. 580, 45 N. W. 482; State v. Hunsaker, 16 Or. 497, 19 Pac. 605, 607.) The record should disclose the fact that the statutory admonition was given. (Pen. Code, sec. 1122; People v. Thompson, 84 Cal. 598, 24 Pac. 384; People v. Maughs, 144 Cal. 253, 268, 86 Pac. 187.) There was error in the instructions given and refused. (People v. Maughs, 144 Cal. 253, 86 Pac. 187; People v. Winthrop, 118 Cal. 85, 50 Pac. 390; State v. Ryno, 68 Kan. 348, 74 Pac. 1114, 64 L. R. A. 303.) There was prejudicial misconduct of the district attorney in the course of his argument in assuming facts not proved. (People v. Mitchell, 62 Cal. 411; People v. Valliere, 127 Cal. 67, 59 Pac. 295; People v. Wells, 100 Cal. 459, 34 Pac. 1078; Ivey v. State, 113 Ga. 1062, 39 S. E. 423, 54 L. R. A. 959; People v. Cook, 148 Cal. 334, 83 Pac. 43; People v. Smith, 121 Cal. 355, 53 Pac. 802.) It was prejudicial error for him to allude to the failure of any defendant or codefendant to testify. (People v. Brown, 53 Cal. 66; People v. Taylor,

36 Cal. 522; People v. McGungill, 41 Cal. 429; People v. Sansome, 98 Cal. 285, 33 Pac. 202; Conn v. State, 11 Tex. App. 390; State v. Harper, 33 Or. 524, 55 Pac. 1075; Brooks v. State, 123 Ala. 24, 26 South. 329; Coppin v. State, 123 Ala. 58, 26 South. 333.) The court improperly allowed evidence to impeach the witness Quong Wow Lung, no sufficient foundation having been laid for that purpose.

U. S. Webb, Attorney General, C. N. Post, Assistant Attor. ney General, J. Charles Jones, and Frank H. Kauke, Deputy District Attorney, for Respondent.

The rebuttal evidence for the prosecution was admissible to disprove the alibi testified to for the defendant. (Wade v. Thayer, 40 Cal. 584; People v. Freeman, 92 Cal. 365, 28 Pac. 261; Sampson v. Hughes, 147 Cal. 62, 81 Pac. 292; State v. Lewis, 69 Mo. 92; Commonwealth v. Moulton, 4 Gray, 39; State v. Maher, 74 Iowa, 77, 37 N. W. 2; Goldsby v. United States, 160 U. S. 70, 16 Sup. Ct. Rep. 216; Perkins v. State (Tex. App.), 80 S. W. 619; State v. Cooper, 83 Mo. 638.) A sufficient foundation was laid to contradict the witness Quong Wow Lung on the subject of corruptly attempting to bribe the witness Edgar. (Lewis v. Steiger, 68 Cal. 200, 8 Pac. 884; People v. Lambert, 120 Cal. 176, 52 Pac. 307; Barkly v. Copeland, 86 Cal. 486, 487, 25 Pac. 1.) The fact that the record does not show affirmatively that at every adjournment the jury were admonished is not ground for reversal. (People v. Coyne, 116 Cal. 295, 48 Pac. 218; People v. Kramer, 117 Cal. €59, 49 Pac. 842; People v. Thompson, 84 Cal. 606, 24 Pac. 384.) There was no error in the instructions taken as a whole, as they must be. (People v. Worden, 173 Cal. 569, 45 Pac. 844; People v. Weber, 125 Cal. 562, 58 Pac. 133; People v. Mendenhall, 135 Cal. 346, 67 Pac. 325; People v. Davis, 1 Cal. App. 8, 81 Pac. 716, 88 Pac. 1101; People v. Armstrong, 114 Cal. 573, 46 Pac. 611.) A hald exception to remarks of the district attorney without request for the action of the court is insufficient. (St. Louis v. Irwin, 37 Kan. 701, 1 Am. St. Rep. 274, 16 Pac. 146; Lunsford v. Deitrich, 93 Ala. 565, 30 Am. St. Rep. 86, 9 South. 308; People v. Shears, 133 Cal. 159, 65 Pac. 295; People v. Beaver, 83 Cal. 120, 23 Pac. 321; People v. Shem Ah Fook, 64 Cal. 383, 1 Pac. 347; People v. Kramer, 117 Cal. 650, 49 Pac. 842; People v. Lane, 101 Cal.

518, 36 Pac. 16; People v. Warner, 147 Cal. 553, 82 Pac. 196; People v. Kelly, 146 Cal. 122, 79 Pac. 846; People v. Frigerio, 107 Cal. 153, 40 Pac. 107.) There was no misconduct in the argument of the district attorney. (People v. McMahon, 124 Cal. 436, 57 Pac. 224; People v. Salas, 2 Cal. App. 537, 84 Pac. 295; People v. Glaze, 139 Cal. 159, 72 Pac. 965; People v. Wheeler, 65 Cal. 77, 2 Pac. 892; People v. Warren, 147 Cal. 546, 553, 82 Pac. 196; Tucker v. Heniker, 41 N. H. 323.) It was not error to refer to the failure of a codefendant to testify. (State v. Mathews, 98 Mo. 125, 10 S. W. 144, 11 S. W. 1135; State v. Millmeier, 102 Iowa, 692, 63 Am. St. Rep. 479, 72 N. W. 275.) The prosecuting attorney may allude to the failure of defendant to produce any witnesses within his power to produce. (2 Ency, of Pl. & Pr. 722; United States v. Cundler, 65 Fed. 308; Commonwealth v. McCabe, 163 Mass. 98, 39 N. E. 777; Commonwealth v. Clark. 14 Gray, 367; Hall v. State (Tex.), 22 S. W. 141; Crumes v. State, 28 Tex. App. 516, 19 Am. St. Rep. 853, 13 S. W. 868; Jackson v. State, 31 Tex. Cr. App. 342, 20 S. W. 921; Mayes v. State, 33 Tex. Cr. 33, 24 S. W. 421; State v. Kiger, 115 N. C. 746, 20 S. E. 456; State v. Toombs, 79 Iowa, 741, 45 N. W. 300; People v. Hovey, 92 N. Y. 559.)

COOPER, P. J.-Defendant was charged by the district attorney of the crime of murder in killing one Louie Mong with malice aforethought on the third day of October, 1905, in the city of Fresno. After a trial, he was found guilty of murder in the first degree and judgment was accordingly entered, sentencing him to imprisonment for life. This appeal is from the judgment and order denying his motion for a new trial.

There was evidence to the effect that shortly after 10 o'clock P. M. of the day named in the information the deceased was shot and killed while in his room in Chinatown in the city of Fresno, by the defendant, who had just entered the room accompanied by four other Chinamen, all of whom were armed. and some of whom took part in the killing. After the killing the defendant and the four other Chinamen who were evidiently acting in concert with him, left the room and came out of the stairway of the house into the lighted alley with their guns still in their hands. No claim is made as to the insufficiency of the evidence to justify the verdict, but it is argued that certain errors of law occurred during the trial to defendant's injury, for which a new trial should have been granted, and of such character as to call for a reversal of the judgment by this court.

The first claim made by defendant is that the court erred in allowing the prosecution to call witnesses in rebuttal upon the questions of an alibi relied upon by defendant, who had introduced several witnesses to prove that he was in San Francisco and not in Fresno at the time of the homicide. The claim is made that the testimony so received is not rebuttal, and that it was incumbent on the prosecution to prove as a part of its original case the whereabouts of defendant at the time of the killing, and to make such proof by all the witnesses it intended to call upon the question under any circumstances. In other words, the proposition contended for is, that if the prosecution should prove the commission of a crime at a certain time and place by the two or three witnesses who were present, and the defendant afterward calls ten witnesses who each testifies to the effect that at the same time the defendant was at a certain room in a certain house in a different place, the people should not be allowed to call any witnesses in rebuttal. If such a proposition could be maintained the people in many cases would be powerless and crime would go unpunished. The district attorney might have evidence to show that each of the ten witnesses was not in the place testified to by them, but in a different place at the time and at the moment of the homicide, and yet the rule contended for would preclude him from showing it. The defense of an alibi is an affirmative one, and if established, a complete one, and the burden is upon the defendant to prove it. The object of the trial is to get at the truth, and while the rights of the defendant should be always carefully guarded, and the procedure designed for his protection substantially followed, yet the law will not reduce its rules to an absurdity in order to prevent a fair and full investigation by the prosecution. The district attorney had no reason to anticipate the defense of an alibi, and the evidence was competent, and in rebuttal. (State v. Lewis, 69 Mo. 92; Commonwealth v. Moulton, 4 Gray, 39; State v. Maher, 74 Iowa, 77, (37 N. W. 2]; Goldsby v. United States, 160 U. S. 70, [16 Sup. Ct. Rep. 216); Wade v. Thayer, 40 Cal. 584.)

One Leu Tun was called by the prosecution, and under defendant's objection, was allowed to testify in rebuttal that on the fourth day of October, 1905, the day after the homicide, the defendant purchased a ticket at Madera, and there boarded the northbound train for San Francisco, and that witness went to San Francisco with him on the same train. It is said that the testimony was not rebuttal, but independent evidence tending to show flight of the defendant from the scene of the homicide. The evidence, if true, showed that the defendant was going away from the vicinity of Fresno toward San Fran. cisco the day after the homicide. The defendant claimed and endeavored to establish by witnesses that he was at a certain room in San Francisco on the night of October 3d when the homicide was committed. The fact that a little after noon on the following day he was seen to purchase a ticket and board a train at a station north of Fresno, and nearly two hundred miles south of San Francisco, tended at least in some degree to disprove the defendant's claim that he was in San Francisco at the time of the homicide. It also tended to prove the theory of the prosecution that he was in Fresno and committed the murder. The fact that the evidence might have tended to prove the flight of the defendant did not make it, for this reason, inadmissible. The main purpose and object of the testimony was to be considered in determining its admissibility. If all evidence should be excluded because it might be objectionable on certain theories for certain reasons, or because it might tend in a more or less degree to prove indirectly some other fact, the administration of justice would be impracticable, and in many cases impossible. The law aims to arrive at the truth upon broader lines and by all legal means which tend to prove the fact under investigation.

Defendant's counsel argue at considerable length that the court erred in permitting evidence tending to impeach defendant's witness, Jue Doe Men, who testified in direct examination that he was at the Chinese theater in the city of Fresno at the very time of the homicide, and that he then and there saw Wong Dock, who is jointly charged with defendant, at the theater. In cross-examination the district attorney called the attention of the witness to a conversation with one Edgar, who was a witness for the prosecution, in which conversation the witness was asked in effect if he did not offer, or intimate to Edgar, that he would give him twenty dollars if he would