People v. Carson

CONREY, P. J.

The defendant having been convicted of the crime of murder of the first degree and sentenced to imprisonment for life, appeals from the judgment and from an order denying his motion for a new trial.

At about 10 o’clock on the night of September 25, 1919, two men entered a street-ear which was approaching the city of Los Angeles on its way from the city of Redondo. A controversy arose between these men and the motorman and conductor of the car, which resulted in the ejection of the strangers from the car. As the motorman was about to start the car these men, armed with revolvers, fired several shots and as á result thereof the motorman, George E. Sleeper, was killed. The defendant and another man, who appears to have been the defendant’s twin brother, were accused of this crime and were tried separately. Counsel for appellant, in stating the questions presented on this appeal, admits that the circumstances of the killing were not in dispute; that no mitigating circumstances were offered, and that “there was but one issue of fact, capable of the following legal distinction: 1. Identification of the defendant. 2. Alibi.”

Several witnesses identified the defendant, and testified that he was one of the two men on the car who were implicated in the above-mentioned transactions. The record leaves no doubt that their testimony is sufficient to justify the verdict so far as the same depends upon the identification of the defendant. The testimony of other witnesses produced by the defendant, and tending to show that defendant was present at a dance held in another section of the city at the very time when Sleeper was killed, has no other effect than to produce a conflict in the evidence which identified the defendant as one of the men present at the

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time and place of the murder. It, therefore, must be held that the evidence is altogether sufficient to sustain the verdict.

Appellant contends that the court erred in denying his motion for a new trial on account of newly discovered evidence. The nature of this evidence is shown by the affidavits of Abraham Gipson and F. A. Lorentz, each of which states facts asserted to be known to the witness, which facts are in aid of the defendant’s defense of alibi. From the affidavit of the defendant’s attorney it appeal’s that, prior to the trial, he had information that Gipson was on the Long Beach car which defendant claims brought him and other witnesses to the city that night; nevertheless Gipson was not subpoenaed by the defendant to testify in the case. The fact that defendant’s attorney “learned that the said Abraham Gipson had been subpoenaed on the part of the prosecution,” and that the prosecution failed to call for the testimony of that witness, furnishes no excuse for the defendant’s failure to use the witness if he desired to have his testimony in the case. There is not with respect to either of these witnesses any sufficient showing of diligence' in an effort to produce them at the trial.