People v. Amaya

McCOMB, J.

Appellant was convicted after trial by jury of murder in the second degree and sentenced to the state penitentiary at San Quentin for the term prescribed by law. This appeal is from the judgment and from the order denying his motion for a new trial.

Viewing the evidence most favorably to the prosecution

(People

v.

Dukes,

90 Cal. App. 657, 659 [266 Pac. 558]), the facts in the instant ease are:

About 9 o’clock in the evening of April 26, 1940, Mariano Carillo was observed standing at the front of a billiard parlor in the city of Los Angeles. Shortly thereafter appellant entered the billiard parlor, walked to a rack of cues, took one down, placed some chalk on the end of it and when next observed he was standing within two feet of Mr. Carillo, who was falling to the floor. At this time appellant was holding a part of the broken cue about ten inches long in his hand and the balance of the cue was lying about a foot from the figure of Mr. Carillo. As a result of the blow Mr. Carillo died.

Appellant relies for reversal of the judgment on these propositions:

[658]

First: The evidence is insufficient to sustain the verdict and judgment.

Second: It u>as prejudicial error to receive in evidence appellant’s confession to police officers.

Third: The trial court committed prejudicial error in admitting the testimony of Mike Rangel and Gloria Castillo.

Fourth: The district attorney was guilty of misconduct in making the statement, “I do believe he did state at the time that the defendant was striking his mother”, after the trial judge had sustained an objection to the question, ‘‘What was the occasion of your cutting your stepfather?”

As to appellant’s first contention, we have examined the record and are of the opinion there was substantial evidence considered in connection with such inferences as the jury may have reasonably drawn therefrom to sustain the findings of fact upon which the verdict of guilty was predicated. For example, the undisputed evidence disclosed that appellant walked into the billiard parlor, selected a billiard cue, and was next observed with a portion of the broken cue in his hand, while deceased was falling to the floor, and that deceased died from a fractured skull. Also, after being arrested, appellant in a statement to the police officers admitted that he had hit deceased with the heavy end of a billiard cue. Further discussion of the evidence is unnecessary.