People v. Coldwell

GRIFFIN, J.,

pro

tem.

This appeal is prosecuted by appellant from a judgment against him pursuant to his conviction of the crime of manslaughter, and from an order denying his motion for new trial.

Appellant was informed against by the district attorney of San Bernardino County. The information charged that on the fourteenth day of April, 1930, appellant did wilfully, unlawfully, feloniously and with malice aforethought kill and murder Florencio Carillo, a human being. He entered his plea of not guilty. A trial by jury resulted in his conviction of the crime of manslaughter. His motion for a new trial was denied and he was ordered committed to the state prison at San Quentin for the term prescribed by law. A stay of execution was granted pending appeal.

It appears from the evidence that on the afternoon of April 14, 1930, the deceased, accompanied by John Garcia and Juan Provencia were walking along a street near a reservoir in East Highland in San Bernardino County, talking and joking with each other. Near this reservoir stood an old Ford car which was used for pumping. As they came near this Ford, deceased picked up a rock and threw it in the direction of the Ford. The rock did not hit the Ford but went into the reservoir. Appellant was passing by at this time and told him not to throw any rocks at his Ford, that he used it to pump water. John Garcia asked appellant to show him where the rock hit the Ford and defendant replied, “Well, it’s all right; I am just telling you that, not to throw any rocks at that Ford.’’ After this the deceased and his two companions continued their walk along the same street, later returning and again meeting appellant. The witness John Garcia asked appellant if he had any beer for sale and he replied that he did not.

Deceased and his two companions then left appellant and they did not encounter each other again until in the evening

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about 8:30 o’clock when they met in a poolroom in Bast Highland. Neither of deceased’s companions saw appellant in the place until they heard him command the deceased to take his hands out of his pockets. At this time the deceased was leaning against a pool-table with his hands in his pockets. When the witness Provencia heard this command he turned and saw appellant with a revolver in his hand. Appellant repeated the command, and stepping toward the deceased, pulled the gun and shot him.