People v. Roselle

CHIPMAN, P. J.

Upon an information charging defendant with murder for the killing of one Erick Nilsen, the jury returned a verdict as follows: “We, the jury, find the defendant guilty of manslaughter, and we strongly recommend him to the mercy of the court.” Before judgment, defendant made application for a new trial, which being denied,

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judgment.was pronounced, and an appeal taken from both the order and judgment.

We quote from appellant’s brief: “Three propositions are advanced by appellant, demanding a reversal herein: First, we contend that there is no evidence in the record to sustain the verdict and judgment; second, the trial court erred in giving to the jury an instruction on the question of manslaughter ; and, third, the defendant was deprived of his constitutional right to a trial by jury by reason of misconduct of one of the jurors, in that during a portion of defendant’s cross-examination of one of the witnesses for the People, such juror was asleep. ’ ’

1. There was evidence, in its nature. circumstantial, that defendant killed the deceased. In addition to this evidence, defendant testified in his own behalf admitting that he shot and killed deceased, claiming that it was in self-defense. The point made is that “the evidence for the defense was a connected whole, no portion of it could stand unless it all stood; to adopt a part demanded that credence be given to all, and to discredit one circumstance detailed forbade credit to any other,” and hence the verdict cannot stand. That is to say, the jury having believed defendant’s testimony that he killed the deceased, they were also bound to believe him that it was done in self-defense. The jury were under no such constraint. They had the right to judge from all the narrated circumstances what part of defendant’s story should be credited and what part disbelieved. They had the right to say whether, on his own statement of the facts and under the instructions of the court on that subject the defendant was justified, in self-defense, to go to the extremity of killing the deceased.

In

People

v.

Sherman,