People v. Green

HARDEN, J.,

pro

tem.

Defendant appeals from a judgment pronounced upon the verdict of a jury finding him guilty of murder of the second degree and from the order of the court denying his motion for a new trial. The information charged that on or about October 28, 1931, the defendant unlawfully killed and murdered Henry Lester Warren, sometimes known as Ed Warren, a human being.

There is but one point raised on the appeal. Contending that the evidence is insufficient to support the judgment, appellant asks that said judgment be modified, pursuant to the provisions of section 1181, subdivision 6 of the Penal Code, by reducing the offense from that of murder of the second degree to that of manslaughter.

Defendant and said Ed Warren had been employed in the baling of hay on a ranch near Bond’s Corner in Imperial County. Warren was a large man and weighed 168 or 170 pounds, while defendant weighed only 103 pounds. During the morning of October 28, 1931, defendant, Warren, Mike Sunday, Cecil Wilson, and Ilusie Green, who was a

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nephew of defendant, went by automobile to Calexico. After their arrival at Calexico the members of the party made several trips back and forth between Calexico and Mexicali, Mexico. On each trip to Mexicali they drank whisky. Defendant drank at least five glasses of whisky. After returning to Calexico, defendant and Warren argued about the weight of hay they had baled, defendant claiming that Warren had “shorted” him in the weighing. Warren threatened to drag defendant out into the street and whip him. At about 1 o’clock in the afternoon, defendant, Warren, Husie Green and Mike Sunday left Calexico in Warren’s car to return to their homes near Bond’s Corner. Cecil Wilson returned in another ear. On the return trip defendant and Warren continued to argue about the weights of the hay and defendant called Warren a liar. When they had reached a point near what is called the Ten-Foot Drop, Warren stopped his car and pulled defendant out on to the road and struck him in the face twice, causing his mouth to bleed. During the course of the trouble, Husie Green took from defendant’s pocket a knife which was “leaning out”. Near this point, Cecil Wilson, traveling by automobile, came upon the scene. Sunday then got into Wilson’s car and all parties proceeded a short distance to a house formerly occupied by Warren. Upon getting out of the automobile at said house, defendant, who was quite drunk, fell forward and struck his head against the spring shackle of the car, skinning his forehead. Defendant thereupon stated that he wanted to walk to his home but was induced to wait. He went into the house and lay down. Warren had brought with him a luncheon which he divided between the parties. Defendant ate part of the food and drank some coffee. They remained there thirty or forty-five minutes. While at this place defendant stated to Warren, “Ed, you choked me down the road,” to which Warren replied, “You know damned well I didn’t”. Defendant thereupon called Warren a liar and Warren “got up and got straddle of defendant and started to push in on his chest”. Warren was persuaded to get off defendant and thereafter they appeared to become friendly. Defendant stated to Warren, “Ed, anyone is a foul to be as good friends as we have been and get in a fight like that, aren’t they?” Warren replied, “They sure are.” Thereupon, they shook