People v. Carothers

McCOMB, J.

From a verdict of guilty of murder in the second degree after trial before a jury, defendant appeals. There is also an appeal from the order denying his motion for a new trial.

The evidence being viewed in the light most favorable to the People (respondent) and pursuant to the rules set forth in

People

v.

Pianezzi,

42 Cal.App.2d 265, 269 [108 P.2d 732], the essential facts are:

Defendant occupied, with his wife, a small sleeping apartment in a court containing several other houses. On the evening of December 21, 1945, defendant and Mr. White, an occupant of another dwelling in the court, engaged in an altercation which resulted in physical injury to Mr. White. After the fight, defendant returned to his sleeping apartment and Mr. White telephoned for the police. Four police officers arrived at the court. It was raining and the night was very dark. The officers and Mr. White went to a dwelling in the court numbered as 2324% where two of the officers remained while the other two, accompanying Mr. White, went to the sleeping apartment of defendant. Officer Huseman, one of the police officers accompanying Mr. White, announced at the door of defendant’s apartment “policeman” and then opened the door approximately twelve to sixteen inches; whereupon defendant fired a .45 caliber revolver, a bullet from which struck Officer Huseman. He died as a result of the wounds on December 31, 1945.

[254]

An information was filed by the district attorney against defendant charging him in four counts as follows:

1. Murder of one Huseman;

2. Assault with a deadly weapon committed on December 21, 1945, upon one White with the intent to kill White;

3. Assault with a deadly weapon committed on December 22, 1945, upon one White with the intent to kill White; and

4. Assault with a deadly weapon upon one Knapp with the intent to kill Knapp.

Upon motion of the People the third count was dismissed, and the jury found defendant not guilty on the second and fourth counts, but guilty of murder in the second degree on the first count.