People v. Liera

CONREY, P. J.

The appellant Liera having been convicted of the crime of murder in the second degree, was sentenced to state prison for a term of years. His appeal is from the judgment.

At about 11 o’clock on the night of June 7, 1914, the deceased, Teofilo Gonzales, was asleep in the house of Alberto Hernandez in the county of Los Angeles. Several members of the Hernandez family were in the house and all had retired for the night. At this time the defendant, together with Juan Lopez and Tomas Estrada, came to the house and knocked at the door. These men were followed in a few minutes by Mrs. Hermana, who lived with Lopez. Shortly afterward, some controversy having arisen, these visitors and some of the Hernandez household were talking together near the house. Thereupon Teofilo Gonzales, roused from sleep by the disturbance, came out and as he came out he asked, “What is the difficulty”? Juan Lopez replied: “Whatever you want,” and at the same time struck Gonzales on the left side of the head in the temporal region with a beer bottle. Gonzales fell backward to the ground, and immediately thereafter the defendant Liera fired five times with a pistol, putting five bullets into the body of Gonzales.

Appellant’s first contention is that the evidence shows that Gonzales was killed instantly by the blow received from Lopez and was dead when the shots were fired by defendant. This contention is not conclusively established by the evidence and the exact moment of the death of Gonzales is not shown. The testimony of the coroner’s physician who examined the body was that the immediate cause of death, in his opinion, was probably a fracture of the skull, and that either one of the injuries would have caused death. All of the physicians agreed that the blow might have caused instantaneous death, but none of them insisted that it necessarily produced that effect. All agreed that the gunshot wounds were sufficient to have

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caused death. Under these circumstances the jury might have found that Gonzales was alive when the shots were fired by defendant and that the effect of those shots was to hasten the death. If this were so, the appellant’s own acts in firing the shots would be held to have been sufficient to justify his conviction.

The court by its instructions assumed that the evidence might tend to show and that the jury might find that, although the immediate cause of death was the blow administered to deceased by Juan Lopez, yet that the defendant might be convicted as an accomplice of Lopez in that assault, if the jury should find that his actions were those of an accomplice. It does not appear that the defendant had any quarrel with the deceased either before or at the time of the above mentioned transactions, or that any ill-will existed between them. If there is any ground for the finding that the defendant was accessory to the act of Lopez in making the attack upon the deceased, such ground exists solely in the circumstance that the defendant was present when the blow was struck by Lopez and that he instantly thereafter followed that blow by firing those shots which made the death an assured fact if it was not already inevitable. The court instructed the jury “that in order to render a person an accomplice, he or she must in some manner knowingly and with criminal intent aid, abet, assist or participate in the criminal act.” Also, “that an accomplice is one who, knowing that a crime is being committed, willfully and with criminal intent, intentionally aids, abets and assists another in the commission of such crime or criminal act, and whether or not one is an accomplice as defined in these instructions, is for the jury to determine from all the testimony and circumstances in proof in the case.” Also, that “for one person to abet another in the commission of a criminal offense simply means, to knowingly and with criminal intent, aid, promote, encourage or instigate, by act or counsel, or by both act and counsel, the commission of such criminal offense.” The court further instructed the jury: “You are instructed that the distinction between an accessory before the fact and a principal in case of a felony is abrogated in this state, and all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense or aid and abet in its commission, though not present, shall be prosecuted, tried, and punished as principals. You