People v. Ghione

DOOLING, J.

Appellant was charged with manslaughter and convicted of battery by a jury. The unfortunate series of incidents leading to the death of one Sullivan occurred in a bar in the city of Hollister. Appellant, a former amateur boxer, met one Hudson in the bar and after an argument with, him struck Hudson twice on the face or head with his fists breaking his jaw and knocking him out. Taking de

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fendant’s own testimony as to what afterwards occurred we quote from the record:

“Q. While you were in that position and watching, as you have described, what happened next, Mr. Ghione? A. Well, while I was standing there I heard somebody from in back of me say, ‘You can’t do that to my Buddy.’ Q. What did you do then? A. Well, as I turned around I saw this fellow— Q. You saw what? A. I saw Sullivan, Bob Sullivan, and he was ready to fight and challenge me so I took a cut at him. Q. When you say he was ‘ready to fight and challenge’ you, what did you observe ? A. He had his fists clenched and you can tell from the expression of his face when a man is ready to fight—a man can tell when a man is ready to defend himself. Q. Have you had some boxing training, Mr. Ghione ? A. Yes, I did. Q. You made a statement there that you can tell by a man’s eyes whether he is going to defend himself, is that something you learned in your boxing experience ? A. Yes, that’s right. Q. At the time when this—when you observed Mr. Bob Sullivan there, do you recall about how far you were apart? A. Well, we weren’t but about three feet apart, I guess. Q. And he was facing you, was he? A. Yes, he was. Q. Where were his hands that you say were clenched? A. They were to the side of him but they were clenched. Q. How did he hold them, down at the bottom—is that right? A. That’s right. Q. What did you do at that particular time? A. I just hauled off and hit him—I just reached out and hit him.”

Appellant’s sole attempted justification before the jury was that in striking the fatal blow he was acting in self-defense. His own testimony above quoted demonstrates that this defense was hardly even a colorable one. Appellant at no time testified that he was in any fear of Sullivan, let alone in fear of death or great bodily injury, and applying the reasonable man test a former amateur fighter 6 feet 1 inch in height and weighing 180 pounds would hardly be in fear of a man 5 feet 8 inches tall and weighing 147 pounds whose hands were clenched at his sides. (13 Cal.Jur. 638-640.)