People v. Franklin

[411]

ARCHBALD, J.,

pro

tem.

Defendant was accused by information of the crime of murder and the jury returned a verdict finding him guilty of manslaughter. From an order denying his motion for a new trial and from the judgment entered on said verdict he has appealed.

Appellant contends: (1) That the verdict is contrary to the evidence, (2) that there is no competent evidence to support the verdict, (3) that the court erred in refusing to give certain instructions and also in modifying certain others requested by defendant, and (4) that the district attorney was guilty of misconduct in several particulars, which prejudiced the jury and prevented defendant from having a fair and impartial trial.

The evidence shows that on the day in question the decedent, James R. Gentry, who had something over $200 in his possession when he entered defendant’s barber-shop, was shot by defendant between 2 and 3 o’clock in the afternoon of that day, in a room in the rear of the establishment. The only parties present at the time, and who were witnesses to whatever may have transpired immediately preceding the shooting, were the decedent, the defendant and one Cooper, a barber who worked in defendant’s shop. Henry Baker, a witness for the prosecution, testified that he, together with Gentry, Cooper and another young man, the defendant also being present, engaged in a dice game in the room in which Gentry was shot between the hours of 11 A. M. and 12 M. of the day on which Gentry was killed; that Gentry was winning and expressed a desire to quit, but that defendant said to him: “You will stay and gamble. I will make you stay. I have something here to make you stay, ’ ’ raising his coat as if showing a gun; that Gentry then said that he had something to protect himself with, displaying a knife, which, however, was closed; that defendant then remarked, “I have got something here to beat that.” The witness further testified that he and the “other fellow” then left, leaving Gentry, Cooper and defendant “standing around”. The witness John Davis testified that he was sitting “out on the sidewalk on a cracker box” in front of a poolroom next to the barber-shop about 3 o’clock P. M. of that day, when he heard a pistol fired “two or three times in succession—fast”; that he got up and looked through