People v. Smith

NOURSE, J.

The defendant was prosecuted for murder, convicted of manslaughter, and sentenced to imprisonment in the state prison. Upon the trial the killing was admitted, but defendant attempted to justify it on the ground of self-defense.

[777]

The only ground for reversal presented by defendant on appeal is that the court committed prejudicial error in excluding certain testimony relative to the bad reputation of decedent, his reputation of carrying a gun, and defendant's knowledge thereof. This evidence was offered by defendant for the purpose of showing the state of mind of defendant at the time he shot decedent and that he was justified in believing that he was in imminent danger from a criminal assault by decedent.

Defendant shot and billed James Branum following a brief altercation over the amount of money won by decedent in a card game which the two were playing. The evidence is that decedent met defendant and. one Brooks, a mutual acquaintance, in a saloon and invited them to his house to play cards. Defendant had known decedent about three months. At the time of the shooting defendant and decedent were playing and Brooks was watching the game. Defendant testified that the first difference occurred between himself and decedent when he discovered the latter cheating in dealing the cards, but no quarrel ensued; that they later got into a dispute over the amount of money which decedent had won; that they became excited and both together rose to their feet; that decedent started to reach with his left hand for the money in dispute (which was lying on the table in front of defendant); that with that hand he grabbed defendant, at the same time reaching for his right hip pocket with his right hand; that defendant thought decedent was going to shoot him or cut him with something, because he had heard he had that reputation, and he pulled a gun which he had in his right hip pocket and shot Branum twice. Decedent did not, in fact, have any weapon in his possession. Brooks, who was watching the game, was the only eye-witness to the affair, other than defendant. He testified that the shooting Óccurred about three-quarters of an hour after they arrived at decedent’s house; that before the quarrel arose as to the amount of the bet the three were perfectly friendly. His version of the affair was as follows: “Branum bet $1.50 on the card game and he won, and Smith said: ‘You only bet fifty cents.’ Smith said: ‘I will pay you fifty cents.’ Branum said: ‘You pay me a dollar or you owe me nothing.’ Smith had two or three dollars in front of him and he said: ‘If I owe you a dollar