People v. Best

LEMMON, J.,

pro

tem.

An indictment was returned against the defendant charging him with the murder of one Ernest B. Hanks. From a judgment of conviction of manslaughter and from an order denying his motion for a new trial this appeal was taken.

Hanks and the defendant had been friends and neighbors for some period of time. In April of 1935, the two men entered into a contract to cut hay upon what is known as the “old Crawford Baneh” near Willows, in Glenn County. The defendant, Best, did not but Hanks did have a team of horses, and therefore Hanks suggested that they borrow a team from a Mr. Aleck Holman, and at the same time stated that the Holman team could be purchased for $50. This team was borrowed and the men entered upon the work. When the work had progressed for a few days defendant became apprehensive that Hanks might charge him for the use of the borrowed team, and so, unknown to Hanks, Best purchased the Holman team. Thereafter, and on the evening of May 13th, Best observed that one of the Holman horses which Hanks had been using was all “fagged out” and had a raw spot on her shoulder, and her neck was chafed. These facts Best called to Hanks’ attention, and received the reply, “She is all right.” During the following day Best concluded that he would gain possession of this horse in order to see that she was cared for and not overworked.

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That evening at the end of the work day Hanks hitched the team he had been working to a wagon and tied the other team on behind, for the reason that he intended to take the team Best had been working home that night to shoe them. As Best passed Hanks he called Hanks and jokingly commented about his wagon, and then said, “How will you trade horses, or aren’t you a horse trader?” To this Hanks replied, “Nothing doing.” “Well,” Best said, “you have got the good team the biggest part of the job; don’t you think you ought to change with me and let me have them the rest of the job? I am getting kind of tired driving old Pete.” Hanks countered with, “Nothing doing.” Best then said, ‘ ‘ Ernest, I have a little surprise for you. I have bought this team. ’ ’ This . provoked Hanks, and he used profanity in expressing his anger toward Best. Hanks went around the front of the team hitched to the wagon, while Best went to the rear to unfasten a halter-strap of the team tied to the back of the wagon. Hanks mounted the wagon, took up a neck-yoke, and said, “Best, God damn you old son-of-a-biteh, I could beat your brains out with this neck-yoke,” and “Yes, God damn you, I will hit you with it.” Best moved over to where his hay-fork was, and from there to the place where the men were in the habit of getting hay to take home for Best’s cows. Hanks laid the yoke down and followed Best, driving the team. Hanks continued talking, but, between Best’s deafness and the noise of the wagon, Best was unable to hear what was said. When they reached the hay Best asked Hanks not to shoe his horse. Hanks was adamant, and Best said, ‘ ‘ Remember, Ernest, I have told you that the horse is mine, and if you shoe him you will have to shoe him at your own expense.” Hanks again profanely expressed himself about Best. Best placed a small fork-full of hay on the wagon, and turned his back to get another fork-full, when Hanks jumped from the wagon onto Best’s back. Best was knocked to the ground; he rolled over on his back and, as Hanks came toward him, Best raised up his feet, caught Hanks in the stomach or groin, and Hanks’ momentum carried him over Best’s head. Best jumped to his feet and grabbed the pitchfork. Hanks started for Best a second time, and Best hit him on the top of the head with the fork. Hanks came after Best a third time, and Best hit Hanks on the side of the head. Hanks expired later the same eve