People v. Luttrell

JAMES, J.

Defendant was convicted of the crime of murder in the second degree. The appeal is taken from the judgment of imprisonment which followed the conviction, and also from an order denying defendant’s motion for a new trial.

On the tenth day of December, 1918, at the town of Lemon Cove, county of Tulare, an altercation occurred between defendant and Vernon French, a young man about the age of twenty-one years. French was killed by being shot by appellant. At least three bullets were fired into the body of French. French at the time was unarmed. From this brief preliminary statement it might be inferred that the shooting of French by appellant was an act of wanton and deliberate murder. But from what will be stated immediately hereinafter it will appear that the appellant only shot after he had been annoyed, abused, and cursed upon his own premises; that he had sought to avoid a physical encounter with French, who was there with the evident purpose of provoking and engaging in a fist-fight with appellant; that the deceased not only abused and vilified the appellant, but, after challenging him to a fist-fight, called him a coward and dared him to shoot.

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To this further statement we may here add, after carefully examining the testimony introduced at the trial, that had this court the duty to try the question .anew upon the evidence, we would

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be most apt to conclude that defendant’s crime, considering the extreme provocation under which he acted, was not greater than that of manslaughter. However, we have no function to perform in the way of re-examining the facts, except in so far as it may be necessary to consider them in determining the matters of law which are the only subjects entitled to be reviewed on this appeal.

The main points urged on the part of the appellant are that the refusal of the court to give certain offered instructions was error. It will be appropriate to make a further statement more fully showing the facts affecting the circumstances of the shooting: The appellant at the time of the alleged homicide resided at the town mentioned with his family; he was engaged in operating stages from that point to the Sequoia National Park. In the operation of this business he used automobiles and carried passengers and mail. The deceased, French, had been employed by him, but on the day preceding that of his death had refused, during the absence of appellant, to convey three passengers who desired transportation to a grading camp. For that reason appellant had discharged him the following morning, through the mouth of another person, to whom he gave the wages due to French and which were apparently delivered by the messenger. Some days prior, while making change with a customer, appellant had borrowed fifty cents from French. On the morning of the tragedy appellant brought a truck into the barn or garage used and owned by him, for the purpose of having a mechanic make some small repairs thereon. This mechanic operated a garage near by and had just returned to appellant’s place with another machine upon which he had been working. Up to this point there appears to be no dispute in the facts—there is little dispute made at all in the case, except as to the final actions of French immediately before he was shot. To that matter we will advert later. The main story, as told by an eye-witness, was that after appellant came in with the truck and dismounted "therefrom, French appeared inside the door of the building; that appellant approached him and that French said to appellant: “When are you going to pay me that four bits?” that appellant asked, “What four bits ? ’ ’ and was then reminded, of the fifty cents which French had loaned to him; that appellant immediately replied he had forgotten that, that he would'pay it; without more ado