People v. Parker

WILLIS, J.,

pro tem.

This is an appeal from a judgment and from an order denying motion for new trial. Appellant was charged with the crime of murder, was tried before the court without a jury and found guilty of murder in the second degree. He presents two general issues of law for decision on this appeal, namely, insufficiency of the evidence to sustain the decision and judgment, and errors in refusing admission of evidence.

On September 8, 1934, at about 7:30 in the evening, defendant from within his own home heard deceased calling him in loud and profane language to come out. Deceased was at that time outside defendant’s yard, near a gate entering the same, which gate was closed. Defendant and his wife went out close to the gate, the defendant having secured from his bedroom and placed in his pocket a loaded revolver. At the gate words were passed between the parties concerning a fifty-cent debt, the deceased making threats to fight and efforts to enter the gate, but being prevented by defendant’s wife. During the progress of this altercation, while deceased was outside the fence and defendant inside thereof, the latter fired a shot from the revolver at deceased, which resulted in his death a few minutes later. At the trial defendant claimed self-defense as justification of the shooting, and urges here that the evidence supports such defense and is therefore insufficient to sustain the judgment of guilt. It

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is unnecessary to repeat herein the items of evidence adduced at the trial. We have carefully examined the same as contained in the reporter’s transcript and find therein ample support for the decision of the court and for a negation of the claim of self-defense.

During the trial a witness testified that she saw defendant and his wife and deceased during the altercation and heard certain words spoken by them. Defendant sought and offered to prove by evidence of experiments as to audibility of voices, subsequently made, that the witness could not have heard what she said she heard. Objection to such evidence was sustained, of which ruling appellant complains. To render evidence of experiments admissible there must be a possibility of reproducing substantially the same conditions which existed when the original occurrence took place. The reception or rejection of such evidence lies largely within the discretion of the trial court, with, the limitation thereon that it must be shown that substantially the same conditions existed; and further that the evidence shall be of such a character as to aid rather than to confuse the triers of fact with collateral matters.