Nakashima v. Takase

ROTH, J.,

pro

tem.

Plaintiff and respondent is the mother of deceased, Eddie Nakashima, who in company with one Matsuzaki, was shot by' defendant and appellant on January 2, 1932, after he and the said Matsuzaki had burglariously broken into appellant’s place of business at 523 East Tenth Street in the city of Los Angeles in the night-time, and were apparently in the act of committing another felony, to wit: theft. The facts are summarized at length in the findings of the trial court, some of which are as follows:

“The defendant came to his cafe on the day in question, January 2, 1932, and discovered that the glass in the door near the lock had been cut, but not removed. He clearly anticipated at that time the possibility at least, that the cafe might be robbed and that a felony might be committed; and that his surmise in this respect was correct is borne out by subsequent events. He called the Police Department during the afternoon, between two and three P. M., and conversed with a policeman. He returned to the cafe at 5:30 p. m. with a shotgun and entered the cafe, and secreted himself in the cafe in the dark. At that time it was dark. The interior of the cafe was dark. The defendant had not been there very long before he heard some persons at the front door, and saw

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shadows there; then very shortly he heard the glass broken and shortly thereafter the door opened and the forms of two persons entered.

“The position where the defendant had secreted himself was a dark location and such a location that the two persons who had entered could not see or observe him, and such persons were entirely unaware of his presence there. . . . from where the defendant .was located, he could see down this passageway and see close to the doorway and could see the forms. He saw them pass from the entrance-way into another portion of the room. . . .

‘ The two persons in question passed along the passage-way leading westerly and into a- room in which was a pool table, and then to the west side of said room and toward the north, then to the northwest corner thereof where there was an open doorway. The decedent, Eddie Nakashima, was one of said two persons; he passed through that doorway and, as soon as he had gotten into the passage-way beyond, which placed him in direct line of fire with the defendant, the defendant fired without first giving a warning and an opportunity to the decedent to disclose who he was. In fact, the Court finds that, if any warning was given, it was given practically contemporaneously with the shooting of the gun. The Court also finds that, immediately that the said Eddie Nakashima went through the doorway and into the passage-way, the defendant blazed away at him; that decedent was unaware of defendant’s presence and was not coming towards him. The consequence was that the decedent was shot in the side and a wound resulted from which he subsequently died, on January 28, 1932.