288 P. 106 | Cal. Ct. App. | 1930
Appellant was convicted of murder of the second degree and sentenced to the state prison. He appeals from the judgment and the order denying his motion for a new trial.
Upon this appeal it is contended: First, that the appellant had once been in jeopardy for the offense charged in the indictment; second, that the evidence does not support the verdict for the reason that it appears therefrom that the appellant acted in self-defense, and third, that the evidence does not support the verdict for the reason that it appears therefrom that the killing was done without malice.
In the early morning hours of May 30, 1929, the appellant shot and killed one Edward Prouty. On two or three occasions on the previous day the deceased and two companions had visited the "bootlegging establishment" conducted *333 by appellant. The final visit was made at about 10 o'clock in the evening and lasted until 4 o'clock in the morning, at which time the shooting occurred. It is unnecessary to set forth all of the sordid details of the events of the evening. The testimony shows that appellant's patrons engaged in a drunken debauch in the flat where appellant carried on his illegal occupation. Several persons present, including the deceased and his companions, had engaged in prolonged drinking, accompanied at various times by hilarity, quarreling and drunken slumber on the part of some of the participants. As might well be expected, there is considerable conflict in the testimony concerning the circumstances preceding and following the shooting. The body of the deceased was found about two hours later on a dump some distance from the house where the shot was fired. The appellant was arrested that night and denied knowing the deceased or having any knowledge of the shooting.
On his plea of once in jeopardy the appellant relies upon a so-called "statutory jeopardy" rather than a "common-law jeopardy." No previous trial was had, but two proceedings were instituted, one by information and the other by indictment, each charging the appellant with the murder of the deceased. Appellant was tried and convicted upon the indictment. While both the information proceeding and indictment proceeding were pending, the former was dismissed and the order of dismissal did not set forth the reasons for such dismissal. [1] Under the provisions of sections
The information proceeding was instituted by filing a complaint in the police court on June 3, 1929. A preliminary examination was held, appellant was held to answer and an information was filed in the Superior Court on July 18, 1929. On August 1, 1929, and before appellant had entered his plea to the charge contained in the information, the information was dismissed on motion of the district attorney. The order granting the order to dismiss did not *334 state the reasons therefor. In presenting the reasons for the motion to the trial court, the district attorney stated that appellant had been charged by indictment with the identical offense, had entered his plea thereto, and that said indictment proceeding had been theretofore set for trial. He further stated that the purpose of proceeding by way of preliminary hearing in the police court was to perpetuate the testimony of certain witnesses as he believed that said witnesses might not be available at the time of trial.
The indictment proceeding was commenced on June 7, 1929, by filing the indictment here involved. On June 24th, a plea of not guilty was entered. On the thirty-first day of August, and after the dismissal of the information proceeding, oral and written pleas of once in jeopardy and former acquittal were entered. Trial resulting in conviction was had on September 3d. At the time the case was called for trial appellant moved to dismiss the indictment. The motion was based upon the above facts, being the same facts relied upon to support his plea of once in jeopardy. The motion was denied and under the instructions of the court the jury found in favor of the People on the pleas of once in jeopardy and former acquittal.
We find no merit in appellant's first contention that he had been once in jeopardy for the offense charged by reason of the filing and dismissal of the information as above set forth. [2]
A statutory bar or statutory jeopardy, as it is sometimes termed, has been recognized, but such bar lacks the essential elements of common-law jeopardy and constitutes a bar solely for the reason that the legislature has so decreed. (Ex parte Hayter,
Although by the terms of section
Appellant relies mainly upon certain language in the decision of People v. Disperati,
[3] It is next claimed that it appears from the evidence that appellant acted in self-defense. Much of the conflicting testimony is referred to in support of this contention. From a review of the entire record it may be said that there was sufficient evidence to make self-defense an issue for the jury under instruction from the court. This issue was properly submitted to the jury and they impliedly found against appellant. There was ample evidence to support this implied finding.
[4] In order to justify the commission of a homicide in self-defense it must not only appear that the defendant believed himself to be in imminent danger, but also that as a reasonable person he had sufficient grounds for his belief. The circumstances must be sufficient to excite the fears of a reasonable person and the party killing must have acted under the influence of such fears alone. (Pen. Code, sec. 198.) In practically every case it is essentially a question for the jury to determine whether the circumstances were sufficient to excite the fears of a reasonable person and whether the defendant acted solely under the influence of such fears. (People v. Emerson,
Obviously neither the testimony of appellant to the effect that he believed himself in danger, nor the testimony concerning the character of the deceased, nor the testimony that the deceased had a knife in his possession, would be conclusive upon the issue of self-defense. They were proper matters for the consideration of the jury, together with all the testimony concerning the circumstances preceding the killing. Briefly relating some of these circumstances, the *338 testimony of the prosecution witnesses showed that for some time prior to the shooting the deceased and McCarthy, one of his companions, had been in the kitchen drinking with other patrons of appellant's place. This room was furnished with a couch, morris chair and other furniture not usually found in a kitchen, but adapted to the use of appellant in making his customers comfortable. About 4 o'clock in the morning Malezia, deceased's other companion who had been asleep in an adjoining room, entered the kitchen and sat on the couch. He said to one of the women present, "Come over here, baby, and sit by me." Another patron, a man of large stature, resented this remark and a quarrel ensued. No blows were struck, but a fight was threatened between the various patrons, including the deceased and his companions. Appellant said: "There will be no fight go on in here." The deceased then said: "What are you going to do about it?" Appellant then pulled out a gun and said to deceased: "You have been looking for it." The deceased said: "You haven't guts enough to shoot that." Whereupon the appellant shot the deceased. During the remarks between the deceased and appellant the deceased was standing several feet from the defendant with his hands behind his back. Several witnesses testified that they saw no knife in the possession of the deceased at the time. There was some conflict in the testimony regarding the positions of the various persons in the room, their actions and their words, but the details of the tragedy, as told by some of the witnesses, fully warranted the jury's conclusion that the circumstances were insufficient to render the homicide justifiable under the plea of self-defense.
[5] The recital of the foregoing testimony disposes of appellant's third point that the killing was done without malice. Section
[6] Although not referred to in the briefs, appellant during oral argument urged a reversal of the order denying his motion for a new trial, claiming that a new trial should have been granted on the ground of newly discovered evidence. The evidence referred to in the affidavits in support of the motion related solely to the testimony of one witness who claimed to have seen one of deceased's companions and another person apparently assisting a man into an automobile in front of appellant's place at about 4:30 that morning. The testimony offered at the trial left in doubt the manner in which deceased had traveled or been conveyed from appellant's place to the place where his body was found two hours later. The newly discovered evidence, if produced, would tend to show the manner in which the deceased left the premises after the shooting and to impeach certain testimony of deceased's companions. It had no direct bearing upon the shooting or the events preceding the shooting. It is extremely doubtful whether such evidence would have produced any different result upon the trial. The motion for a new trial under such circumstances is directed to the sound discretion of the trial court, and the action of the trial court will not be disturbed except in cases manifesting a clear abuse of such discretion. (People v. Sing Yow,
The judgment and order are affirmed.
Nourse, P.J., and Sturtevant, J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on May 7, 1930, and a petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on May 22, 1930, Nourse, J., pro tem., not voting. *340