People v. Costa

CURTIS, J.

Defendant was charged with the crime of murder. He was found guilty of manslaughter and now appeals from a judgment of conviction and from an order denying his motion for a new trial. The grounds advanced for a reversal of the judgment are two: First, errors of the court in sustaining objections to questions asked on behalf of the defendant for the purpose of proving certain dying declarations of the deceased; second, errors of the court in refusing to give certain instructions offered on behalf of the defendant.

Defendant killed the deceased, Edward Farmer, on Monday evening, September 17, 1923, in the city of Los Angeles. On Saturday, immediately preceding this evening, there had been some controversy between the two, at which time the deceased said to the defendant, “I am going to get you, or you are going to get me.” Whereupon, according to the testimony of the defendant he walked away from

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the deceased to avoid trouble. Defendant and the deceased were both members of the order of Eagles, and it was in the Eagles’ clubrooms in that city where the above-mentioned controversy took place. The defendant further testified that on the night of the homicide he attended a meeting at the clubrooms of the degree team of the order of which he was a member; that on this evening he took with him his pistol, a twenty-five automatic, fearing that he might have trouble with the deceased. He went to the clubrooms and remained there until a little after 10 o’clock, when he decided to go home. He walked out of the clubhouse on to Sixteenth Street, being the street on which the clubhouse faced, and then went towards Georgia Street, which is the next street west of the clubhouse, running at right angles with Sixteenth Street. Defendant then walked west on Sixteenth Street, and was attacked by deceased in the following manner: “Well, the first thing I was startled with, why, was a blow on the back of the neck. So I turned around real quick and recognized that it was Farmer. Then I ran around an automobile that was parked on the curb, and I told him, I says, ‘Now, leave me alone.’ I says, ‘I don’t want to have any trouble with you.’ I says, ‘Let us settle this at the meeting next Thursday night.’ And he says, ‘No, you won’t.’ He says, ‘I am going to settle it right now, you dirty bastard.’ After he hit me my hat fell off. ... I picked up my hat and he grabbed me. So I broke away from him, and just as I broke away from him he reached for his hip pocket with his right hand. As he done that I pulled my gun out of my pocket. I had it in my coat pocket. And he was on top of me, and he had his—put his right hand around my neck and with his left hand he grabbed my arm, and I kept it away, just like that, kept it away from him, between him and I. And he says to me, he says, ‘Put that gun up, you son of a bitch,’ and I says, ‘I will, if you leave me alone.’ And then I noticed his right hand shift again to his hip pocket and his left hand, he grabbed me by the throat and tried to choke me, and as he done that, why, I started to shoot. I was so excited I didn’t remember how many shots I fired. After he dropped, he said, ‘Well, Lou,’ he said, ‘you got me.’ So I put my hat back on my head and walked down