People v. Jones

THOMPSON, J.

The defendant was charged with the murder of his wife. He was convicted of manslaughter. On appeal he contends that he shot his wife in an effort to protect her chastity by shooting at her inebriated companion while they were fleeing from his presence after a drunken debauch in which all three individuals participated.

It is asserted the evidence fails to support the judgment; that the court erred in refusing to give certain instructions to the jury which were offered by the defense; that a dying declaration of the deceased was received in evidence without preliminary proof that it was made

in extremis,

and that the district attorney was guilty of prejudicial misconduct in stating to the jury in his closing argument that he believed the defendant was guilty of murder.

The defendant and his wife were living in the Mariposa school building near Grass Valley in Nevada County. In the afternoon of Sunday, the twenty-second day of August, 1932, an associate by the name of Edward Ryan appeared and spent the afternoon and part of the night drinking liquor with them. They were well acquainted, having previously picked fruit together. Ryan brought a bottle of whisky with him. .Several times the defendant and Ryan drove to Grass Valley and purchased more whisky. Ryan says they drove to town for liquor two or three times. The defendant admits they went for whisky once. He claims that he drank very little liquor. Both Ryan and deceased became intoxicated. The defendant and his wife had previously lived in harmony. Ryan’s story of the shooting is very vague. He was evidently quite drunk. The defendant claims that his wife had been drinking with Ryan periodically throughout the entire time they spent together on this occasion and that she was very drunk. There is no evidence that he protested against her drinking. About 2 o’clock in the morning he claims to have reclined on a

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couch pretending to sleep; that Ryan was making love to his wife in a maudlin fashion; that after talking together in a low tone of voice and concluding that he had gone to sleep, they slipped out the back door. The defendant arose and listening at the door he heard them talking near by. He suddenly opened the door and saw his wife in the embrace of Ryan. They were leaning against an upright post supporting the roof of the porch. He claims to have cursed Ryan and to have rushed out, striking at him. The couple started to run across an open space near the house. Ryan held Mrs. Jones by the hand. She was wobbling as they ran. The defendant entered the house and grasping a loaded shotgun, he returned to the open doorway, claiming that he intended to “sprinkle his back with shot”. It was moonlight and the defendant could see the fleeing couple fairly well. They had reached a point about thirty or forty steps from the house when the defendant fired. Mrs. Jones received the charge of shot in her right side, face, breast and abdomen. Sixty shot took effect in her body. She fell screaming to the ground. Ryan received only two or three shot in the neck and face. They lodged just beneath the skin. He easily picked them out himself. He was not seriously injured. Prom this fact, it appears evident that he must have been some distance beyond Mrs. Jones at the time the gun was fired. He ran to his automobile and tried to start it, but failed. He then fled from the scene.