156 P. 377 | Cal. Ct. App. | 1916
Defendant was convicted of the crime of murder in the second degree and sentenced to imprisonment for the term of twenty years. His appeal is from the judgment and from an order denying his motion for a new trial.
The principal assignment of error refers to the court's instruction to the jury that it might find the defendant guilty of murder in the first degree, or murder in the second degree, or not guilty, and the court's refusal to add to these alternatives an instruction that they might, if the evidence warranted it, find him guilty of manslaughter. The general rule is, as stated in the Penal Code, section
Manslaughter is the unlawful killing of a human being, without malice. One of the conditions described in the code definition is that of an involuntary killing "in the commission of an unlawful act, not amounting to felony." (Pen. Code, sec. 192.) If the jury believed the testimony of the defendant, they might have reached the conclusion that in striking at the deceased the defendant was committing an unlawful act amounting to an assault, but without intending to shoot. The firing of the pistol under the circumstances shown endangered the life of his daughter as well as the life of Brinkley. Her arm was around the young man and the bullet did in fact pass through the middle finger of her right hand. There is no evidence that the defendant had ever threatened the life of Brinkley or that he entertained animosity toward him beyond the mere fact that he was unwilling to have the young man paying attentions to his daughter, who was still a young school girl. The testimony to which we have referred, with much other evidence to which we might refer, was abundantly sufficient to entitle the defendant to have the case go to the jury under instructions which would permit a verdict of manslaughter.
Counsel for defendant in their brief assert that the court erred in giving certain other instructions, and also in refusing to give sundry instructions requested by the defendant. These assertions are not accompanied by any argument or any reference to authorities bearing upon the questions involved; *566 and we will not discuss these instructions more than to say that, on the face of the record, we perceive no error in the court's rulings concerning them. So far as the refused instructions were correct and pertinent to the case, the substance of them appears to have been given in the court's instructions to the jury. Nevertheless, the error which was committed and to which we have referred was sufficient to seriously prejudice the defendant with respect to an important right of defense, and he is entitled to a new trial.
The judgment and order are reversed.
James, J., and Shaw, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on April 3, 1916.