People v. Manzo

EDMONDS, J.

The defendant has appealed from a judgment of conviction of murder in the first .degree, with punishment fixed by the jury at life imprisonment, and from an order denying a new trial. The killing is admitted but it is claimed that the evidence is insufficient to sustain the verdict ; and also, that the court erred in failing to give the jury certain instructions and in the exclusion of evidence.

The crime occurred in the yard adjoining the homes of the defendant and his victim. Apparently there were a number of small houses on one lot. The defendant and Ms family lived in one of these houses. Jose Garcia, who was killed, and his family lived in another. Jose Enriquez, sometimes called Pipas, and Ignacio Vargas, single men, each occupied a small house in the group. Garcia was living at this place when the defendant moved there about three years before the crime occurred. They were on friendly terms until a dispute arose concerning a ditch which the defendant dug across the yard. Garcia objected to this ditch and asked the defendant to fill it up but the defendant refused to do so. At the time, according to defendant, each cursed the other and Garcia told the defendant that he was going to kill Mm.

The defendant testified that after this difficulty, which occurred about two months before Gareia was killed, he bought a revolver because he was afraid of Garcia. However, he said that he never carried it except at night and al

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though he saw Garcia on numerous occasions afterward, at no time did Garcia speak to him or make any attempt to attack him. While he claims to have twice seen Garcia carrying a dagger, he could not fix these times with any certainty.

On the night of the shooting, the defendant returned to his home about 3 o’clock in the morning. According to him, he heard voices in the yard near Vargas’ house. With his gun in his pocket, he walked in the direction of the conversation. Before he reached the persons carrying on the conversation, he recognized Garcia’s voice but continued toward them. The explanation of the defendant as to why he went on if he was afraid of Garcia was that he wanted to see if his brother was one of those taking part in the argument. He also testified that when he was some twenty-five or thirty feet away from the men, although he knew his brother was not there, he stood and listened to the discussion which was going on. At that time he saw that Enriquez and Vargas were talking to Garcia. Unquestionably both Enriquez and Vargas were drunk while Garcia had been drinking. The defendant’s story of what occurred next is that as he approached the three men, Garcia pushed Enriquez to one side and said to him (defendant), “You poche son-of-a-bitch, get away from there I am going to kill you”. Speaking of events which followed, the defendant said he then called Garcia the same names which Garcia had spoken to him, “or more”; that Garcia then came toward him and he took out his pistol and fired two shots, one to the ground and one to the side; that he fired a third shot with deliberate aim when Garcia was five or six feet away, and that Garcia then fell.