People v. Campanella

NOURSE, P. J.

The defendant went on trial to a jury upon an information charging murder and was found guilty of the crime of manslaughter. His motion for a new trial was denied, and this appeal is taken from the judgment on the verdict and from the order denying a new trial.

A former conviction of the defendant of murder in the second degree was before this court on appeal, and the conviction was reversed because of errors in instructions, particularly those relating to defendant’s plea that the homicide was committed in self-defense.

(People

v.

Campanella,

39 Cal. App. (2d) 384 [103 Pac. (2d) 193].) Upon the second trial the defendant declined to take the stand in his defense and for this reason there is a marked and material difference in the two transcripts on appeal- — particularly in respect to the evidence tending to support defendant’s plea which, on the former appeal, came principally from his own testimony of the events leading to the homicide. On this appeal it should be borne in mind that we must confine our review to the evidence found in the transcript of this record, and we are not permitted to indulge in counsel’s explanations and colorful elaborations of this record from the stories told on the previous trial, nor are we permitted to treat as evidence in this case portions of the transcript of evidence of a proceeding in the municipal court which were read to a witness for the purpose of refreshing his recollection and not put in evidence.

Our record discloses that the defendant was living in the apartment of Mrs. Hattie Jensen, the estranged wife of the deceased. Three children of Mrs. Jensen, two sons aged fourteen and eleven by a previous marriage, and a daughter by a still previous marriage, were living in the same apartment. The defendant helped care for the two boys when the mother was away from the apartment and

[700]

did some work about the place to help Mrs. Jensen. The Jensens had been separated for about fourteen months, but were on friendly terms, seeing each other all the time, usually at the home of the deceased. On the day of the homicide Mrs. Jensen had planned to go to her husband’s home for dinner, but she came to her own apartment at about 5:30 p. m. to make arrangements for her children’s meal. A few minutes prior to that time her husband had come to the apartment and found the defendant sitting in the living room with the eleven year old son of Mrs. Jensen. He called to the boy to go back to the kitchen with him and there asked who the strange man was. The boy told him that he was living there and helping his mother. The deceased, who was drunk at the time, became very angry and returned to the living room where he and the defendant had some altercation. At this time Mrs. Jensen came in and saw the defendant seated in a chair and the deceased leaning over him with one hand on each arm of the chair. She called to her husband: ‘ ‘ Jim, come in here. I want to talk to you.” Her husband preceded her to the kitchen where she told him that he should leave and go to his own home. The deceased answered: “Before I let that Dago son of a bitch get you I will kill him.” Mrs. Jensen started to remove her coat and the deceased left her to return to the living room. A period of about four minutes elapsed while the two were in the kitchen and when Mrs. Jensen had removed her coat she immediately followed her husband to the living room. There she saw the two men scuffling in the middle of the room; the deceased had a hold on both of the defendant’s wrists extending his arms upward. The defendant had a pocket knife in one of his hands. She called “Jim” and the men broke away. The deceased was vomiting blood from four knife wounds all of which produced a hemorrhage from which he died before help could be summoned. The defendant admitted that he inflicted the wounds. There is no evidence that the deceased carried or used any kind of weapon, no (evidence that he struck or threatened the defendant in any way other than the evidence relating to what was said in the kitchen.