People v. Marty

WORKS, J.

Appellant and one Guthrie were informed against jointly and were tried jointly for the murder of one Aeeneion Correa. Both were found guilty of manslaughter. The appeal is from the judgment of conviction and from the trial court’s order denying appellant’s motion for a new trial.

The sole point made by appellant is that the evidence in the cause was insufficient to support the verdict. The question presented is to be resolved upon a construction of section 31 of the Penal Code, which, quoting so much of it as bears upon the point, is in this language: “All persons concerned in the commission of a crime, \\ . . whether they directly commit the act constituting the offense, or aid and abet in its commission, . . . are principals in any crime so committed.” Appellant did not directly commit the crime with the perpetration of which he and Guthrie were charged, and we are therefore called upon to determine whether he was “.concerned” in its commission and, if so concerned, whether he did “aid and abet in its commission.”

In solving this problem we do not find it necessary to go beyond the facts stated in appellant’s brief, taken together with fragments of the testimony quoted therein, and also with portions of the testimony pointed out in the brief by appropriate reference to the reporter’s transcript. In fact, the point may be settled, practically, by the testimony of appellant alone. It appears that appellant and Guthrie proceeded one evening in an automobile driven by the latter to make a call in the town of Bell. On the way to that place they came to a point where a horse and wagon were standing diagonally across the road in such a way as to block the highway proper. There was a Mexican on the wagon and several others in its neighborhood. One of these

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Mexicans was the deceased Correa. Guthrie was forced to turn to the side of the road in order to pass the horse’s head. We now take up the testimony given by appellant: “I said to the Mexicans, ‘What is the idea of taking all of the road?’ and then they started to speak in high tones, and we got fifteen or twenty feet from the wagon, when there was a shot fired. I could see the Mexican on the wagon . . . fire the shot. ... I turned my head toward the filling station [which was a short distance farther along the road], and then in about five or six seconds later another shot was fired. It sang past our heads. ... I says to Mr. Guthrie, ‘I wonder what their idea is?’ And Mr. Guthrie says, ‘I don’t know.’ He says, ‘We will stop at the filling station and get a gun.’ ” They did then go to the filling station and appellant opened the conversation with the proprietor of the place. Appellant himself testified: “I said, ‘Some Mexicans down the line shot at us without a reason, I don’t know whether it is a holdup gang or not, but [sic] through a misunderstanding. ’ ’ ’ Guthrie then asked the filling station keeper to lend him a revolver, but the keeper handed him a shotgun instead. Guthrie and appellant at once turned back toward the place at which they had encountered the horse and wagon and passed 250 feet beyond. They then got out of their car and proceeded on foot to where the Mexicans were, about the wagon, Guthrie having the shotgun in his hands. We again take up the testimony of appellant: “We both got out of the ear and went back to where these here Mexicans were, and I said to them, ‘Now, we are not hunting trouble, understand,’ assuring them of our friendship, and so I says, ‘What is the idea of firing at us?’ They pointed out along the road and said, ‘No business, no business.’ I said, ‘Haven’t American citizens a right to drive on the thoroughfare without being fired on?’ ’’ Thereupon, according to the testimony of appellant, an altercation commenced, during which one of the Mexicans asked for the names of appellant and Guthrie, which they refused, appellant saying that they came from good families in Whittier and that the Mexicans could take the license number on their car. We again take up appellant’s own words: “After I told him that . . . they came toward us and started in to circling us as to take advantage of us. Mr. Guthrie told them we didn’t come back to get into an