People v. Emrick

[37]

JAMES, J.

The defendant appeals from, a judgment directing his imprisonment after conviction of the crime of murder in the second degree. Appeal is also taken from an order denying a motion for a new trial.

At the time of the alleged homicide defendant was residing at Carpintería with his wife and stepchildren. On the day of the killing defendant’s wife had, in company with the wife of Weiler, the deceased, visited the city of Santa Barbara, a short distance away. Defendant’s wife returned home about 6:30 o ’clock. Defendant, upon entering the house, engaged in an exchange of angry words with his wife and one of his stepsons, and left the house with a revolver in his possession. Some time thereafter Weiler and his wife came to the defendant’s house, Weiler remaining for the most part upon the porch of the house, while his wife held some conversation with Mrs. Emrick. It reasonably appears from the testimony that defendant was somewhat under the influence of liquor at all of the times before mentioned. Later on, and before the shooting occurred, the defendant secured a bottle of whisky. Some of the witnesses testified that when defendant learned that Weiler was there he declared that he intended to kill him. He met Weiler near the main-traveled highway at about the front of the house, Weiler being accompanied by his wife. It also appears that a brother of defendant endeavored to pacify the man. It nowhere appears in the evidence that Weiler was armed, although the brother of the defendant testified that just before the shot was fired he thought he saw something passed by Weiler to the latter’s wife, and that he notified the defendant of his belief in that regard. Little question can be made under the evidence but that defendant was at the time intoxicated and was withal threatening and boisterous. He displayed the gun, which he held in his hand, openly. There was some testimony that Weiler addressed him and asked him to put up the gun, telling him that if he wanted to fight, he would fight him that Avay, but not with a gun. As between Mrs. Weiler and her husband, the former seems to have been more outspoken and active in the part which the Weilers took in the affair. Just before the shot Avas fired, by the testimony most favorable to the defendant, it would appear that Weiler pulled his wife back and advanced toward the defendant, whereupon the defendant shot, and killed him. As we have before noted, Ave can find no