The evidence is not all in the record. The bill of exceptions recites substantially that there was evidence tending to show that the appellant shot and killed one Yen Yuen on one of the streets of the city of San Francisco; that he attempted to escape, was followed by an officer, whom he also attempted to shoot, was arrested, and found to be armed with four revolvers, and protected by a coat of mail, made of links of steel, worn under his clothing; that at the time of the shooting he was accompanied by several other persons, who also ran away immediately afterwards; that the deceased had a pistol on his person which was fully loaded, none of the chambers having been discharged. There is no general statement showing what the defendant proved in his defense or its tendency.

1. During the cross-examination of one Chow Hin, a witness for the prosecution, he was asked by the defense how long he had known the defendant. He answered: "Several years ago, because it was on last year six months twenty-eight day that he killed Yen Yuen, and I knew him about a year before that." The defendant moved the court to strike out so much of the answer as referred to the killing of Yen Yuen by the defendant, on the ground that it was not responsive to the question. The motion should have been sustained, but, as the record comes to us, we cannot say that any injury could have resulted from the ruling of the court. The killing of the deceased by the defendant may have been, and we infer from the matters appearing in the record was, an undisputed, though perhaps not an admitted fact, the defense being that the killing was justifiable. If so, the statement of the witness was harmless.

The same witness was asked whether he did not testify to certain things before the police court, and answered that he did; whereupon the prosecution asked him whether he did not at the same time make certain other statements. To this the defendant objected, and

LXXVIII. CAL.-21

the objection was overruled, but there is nothing in the record to show that the question was answered by the witness. To render a ruling in favor of the admission of evidence material, the record must show that the question objected to was answered, thereby carrying the objectionable evidence to to the jury. It is unnecessary, therefore, for us to determine whether the evidence that might have been elicited was competent or not.

The defense, on cross-examination of one Sorr Sinn, asked whether he did not, on a former trial of this case, make certain statements, when the following occurred: The district attorney objected on the authority of People v. Ching Hing Chang, 74 Cal. 389, holding that whatever the witness might have said at the former trial he had the statutory right to have it presented to him, and read, if in writing. The court remarked to counsel for defendant: "I would sustain you if I could reverse the supreme court, but I cannot." As the rule referred to is well established, and one in every respect fair and just, it is fortunate that the court below was not possessed of the power to reverse it. There was no error

in this ruling.

The bill of exceptions recites: "Evidence having been introduced by the prosecution tending to show that Lee Chuck, the defendant, and Quan Gee and Chung Kit and Chung Wye and Chung Sam were present at and participated in the killing of Yen Yuen, the deceased, the defense then introduced evidence tending to show an alibi for Quan Gee and Chung Kit, and also tending to show that Lee Chuck and Chung Wye and Shung Sam were first attacked by Yen Yuen and Chow Hin and others, and that Lee Chuck and Chung Wye and Chung Sam shot in self-defense at Yen Yuen and his party." The prosecution then proved by the witness Cox that he was an officer; that he had received certain warrants of arrest for the persons above named, and that he had never been able to serve two of them, although he had

made every effort to find the parties, and the warrants not served were offered in evidence and excluded; but the court permitted the witness to testify that he had searched diligently for the parties who had not been found, and that if he could have found them he would have arrested them on the charge set out in them, which the district attorney had openly stated to the jury was the same offense for which the defendant was being tried. As to the other party named, the prosecution was permitted to prove that he had been arrested where he had been found several hours after the shooting in a small "cubby hole" at the top of a house near the place of the shooting. The witness was permitted to testify minutely to the nature of the room, its furniture, the means of reaching it, with the view, we suppose, of showing that he was there in hiding to avoid arrest. The evidence was objected to by the defense on the general grounds that it was immaterial and incompetent. For what purpose or upon what theory the evidence was admitted does not clearly appear. We can only infer it from the statement of the district attorney, made in support of his offer, which will be set out hereafter in connection with another point made. His position, in brief, was, that as to those who were not found it tended to show that they were not innocent and acting in selfdefense, as claimed, or they would not have run away; and that the fact that they were not present to explain what occurred at the time of the shooting was a circumstance against the defendant, and was "offered to show the utter improbability of this self-defense fabrication; that is why this is offered."

There is nothing to show that the defendant was in any way responsible for their absence, or that he was not as desirous that they should be present as the prosecution. This is to permit the act or conduct of one party, after a crime is claimed to have been committed, indicating his guilt, to be proved as against another in

We are

no way connected with such act or conduct. wholly unable to see upon what rule of law or justice such a ruling can be upheld. People v. Sharp, 107 N. Y. 427, is a case in point. There the defendant was charged with bribery. The prosecutor, as a part of his evidence, offered to show by a detective officer that he was employed to serve subpoenas upon three other parties, all of whom the district attorney claimed to be material and competent witnesses, and to show further, that the detective was unable to find them in the state, but did find one of them in Canada, and learned that the others were there, but did not see them. These persons were named in the indictment as co-defendants with Sharp, and the evidence already in tended to show that they were mediaries between the persons offending against the statutes relating to bribery. It was not claimed by the prosecution that the defendant was privy to their absence. The district attorney disclaimed any intention of proving the flight of those persons as co-conspirators, and so make use of their absence as evidence of guilt, or as proof by their conduct that the accusation against the defendant was true, but for the purpose of explaining his inability to produce them as witnesses. In the case before us, the district attorney openly avowed that the evidence was offered to disprove the defendant's defense, or, in other words, to prove his guilt. In the case referred to, the court says: "The evidence already in was, so far as Sharp was concerned, altogether circumstantial, but tended to show that the persons named, or some of them, were qualified from actual knowledge to give evidence bearing more or less directly upon the very point in issue. We think evidence of their absence was inadmissible. It could have no legitimate bearing upon the issue, and the danger is very great, that such testimony will prejudice a party against whom it is 'offered. It may be, and frequently is, admissible in 'answer to evidence from the other side, which would

naturally call for an explanation. But the absence out of the jurisdiction of the court of an associate, or one seemingly connected with the with the defendant in the the act charged, is easily construed as evidence of guilt, and unless the occasion calls for such proof, it should not be allowed. It is an old maxim that 'he confesses the fault, who avoids the trial,' but in its application, even to the fugitive, there is great danger of error. A man may avoid the trial for many motives besides consciousness of guilt, but however actuated, his conduct can in no degree, in a court of justice, reflect upon another. Its admission in this case was virtually saying to the jury: "There is better evidence, and it might be had from the defendant's associates. It is not the fault of the prosecution that the evidence is not before you, but because of the voluntary act of those who, with the defendant, stand charged with the offense.' Thus the nonproduction of the witnesses is made to supply the place of proof of the issue; with that issue the evidence has no possible connection. The rule is, that where a party to an issue on trial has proof in his power which, if produced, would render material, but doubtful, facts certain, the law presumes against him, if he omits to produce that proof, and authorizes a jury to resolve all doubts adversely to his defense. But the rule cannot be applied unless it appears that the proof, whether it is a living witness or paper, is within his power. It is easy to see that the evidence offered here might be used for an ulterior purpose, although not pressed by the prosecution, yet entertained and made effective by the jury, and there certaintly could be no presumption that the prosecution had the power to produce any particular witness, certaintly not one of those named, nor did the law require it of them. It is, therefore, impossible to find any reason for, or lawful purpose to be gained by, the proof offered, and its admission was a very dangerous innovation upon the general rule, which excludes it