People v. Alexander

NOURSE, J.

Defendants were jointly tried on an information charging them with the murder of one William H. Beinking. The defendant Alexander was convicted of manslaughter and the defendant Avilla was convicted of murder in the second degree. Both defendants have appealed from the respective judgments following the verdicts and from the orders denying their motions for a new trial. Prior to the submission of the appeals the defendant Alexander filed a dismissal of his appeal and consideration, therefore, is given only to the appeal of the defendant Avilla.

The facts of the case are that while the two defendants were loitering upon the streets of Oakland with a number of other companions on the evening of July 5, 1922, deceased was peaceably walking along one of the main streets of that city. As he passed these defendants and their companions the defendant Avilla hit him in the leg with a rock or clod of dirt without any provocation. The deceased paid no attention to the incident, but continued on his way, and after he had gone some distance the defendant Avilla said to defendant Alexander: “Come on, Mowie, and let’s get that guy,” calling the defendant Alexander by his nickname. Thereupon the two defendants started after the deceased, who was then about two blocks down the street. When they arrived within a short distance of the deceased the defendant Avilla took off his coat and threw it to another one of his companions and the two defendants then crossed the street and, running part of the way, caught up with the deceased. The defendant Avilla grabbed the deceased and held him by his right hand and said to him: “You are one of these wise guys from Alameda that hit me before.” The deceased replied: “No, you are badly mistaken,” and smiled. He attempted to break away from the defendant Avilla and thereupon that defendant struck the deceased in the face, knocking him down. A's the deceased fell the back of his head struck upon the hard pavement

[308]

of the street, causing a basal fracture of the skull. Deceased never regained consciousness, but died a short time thereafter. It appears that the deceased was a young man of frail build; that throughout the occurrence he kept his left hand in his pocket, and that he made no resistance and no threats of any kind against either of the defendants. In fact, it appears without conflict that the attack was wholly without provocation and that it was deliberate and inexcusable.