139 Cal. App. 679 | Cal. Ct. App. | 1934
About 1 or 2 o’clock on the morning of April 14, 1932, one Joe Brooks, a colored man, broke into a chicken-house at the home of the defendant and while there was shot and killed by the defendant. The defendant at once reported the matter to the police authorities and an investigation was immediately made, the result of which
It is first urged that the evidence is insufficient to support the finding that the homicide was justifiable. The respondent owned his own home in the city of Fresno. There was a fence along the alley at the rear of his lot and on the evening before the shooting occurred the gate in this fence was left shut. About twenty feet away from this fence there was a chicken-house and chicken-yard, in which were a large number of chickens. The door to the chicken-house was locked with a padlock. The respondent was awakened by the barking of his dog which was chained up in the back yard. ITe heard a noise coming from the direction of the chicken-house which sounded like something breaking and, after arming himself, went out to investigate. It was quite dark but he saw a man move at the chicken-house door, either just inside or just outside of the chicken-house. He also heard the chain on the chicken-house door rattle. He immediately fired three shots, one of which killed the deceased. He testified that he was afraid to call out or give a warning for fear the man he saw would kill him and that he had previously known a man who was killed after giving such a warning. When the officers arrived they found the door to the chicken-house broken, the body of the deceased just outside this door and what was apparently the intruder’s hat inside of the chicken-house. The gate through the rear fence was found open.
The second point raised by the appellants is that the respondent was himself guilty of a felony at the time in question and that a homicide perpetrated while in the commission of a separate and distinct felony cannot be justified. This contention is based upon the claim that the respondent was not a citizen of the United States and that under section 2 of Act 1970, General Laws of California, he was guilty of a felony in that he was then in the possession of a firearm capable of being concealed upon the person. Not only is there no evidence that the barrel of the firearm used by the respondent was less than twelve inches in length but there is no evidence in the record that the respondent was not, at the time, a citizen of the United States. Upon cross-examination the respondent testified that he was born in Italy. The cross-examination stopped at that point and he was not asked whether he had been naturalized, and it is perhaps a fair inference that the question was not asked because it was known that the answer would be unfavorable. The respondent testified upon direct examination that he had
The judgment is affirmed.