People v. Level

BURNETT, J.

Defendant was convicted of murder in the second degree and the appeal is from the judgment and the order denying his motion for a new trial. The evidence without conflict shows a deliberate, premeditated murder and defendant was fortunate in escaping a verdict for the higher offense. The homicide occurred at the home of one J. K. Kelly, about three miles east of Redding, Shasta County. On the evening of August 1, 1914, deceased and Mr. and Mrs. Kelly were engaged in conversation on the front porch of the Kelly home. The deceased sat in a small rocking chair at the southeast corner of said porch, and J. K. Kelly reclined on a roll of blankets at the northwest corner of the porch. Until a few minutes before the killing Mrs. Kelly was in a hammock which was hung from the northeast to the southwest corner of the porch. About 9:30 o ’clock p m. appellant went to the Reid & Adams livery stable in Redding and asked for a rig to go to Clear Creek. He came, however, to the Kelly home, arriving about midnight, hitched his horse in front of the house and approached the front porch through the front gate. Deceased was still sitting in said rocking chair and J. K. Kelly reclining on said roll of blankets. What then occurred may be stated in the language of Kelly: “He was singing, ‘Doodle, doodle, doodle, doodle,’ as he oftentimes did about his common business. He came up and he says, ‘You are the man I am after. ’ Stepped his right foot onto the porch and says, ‘I will let you know that no God damned son-of-a-bitch of a dago can step between me and my wife, ’ and he (Joseph Parenti, the deceased), sat pretty quiet, considering the fire, and at that time—about that time, he made something like such a motion as this: (Illustrating by arising from the witness chair and extending both arms out in front slightly spread apart) towards John M. Level. And he then drew right back and the firing commenced, and then he was on the run, really, and two shots were fired there, and he really was on the run at the time. It was all over instantaneous. Q. In what direction did the deceased, Joseph Parenti, reach out his hands, as you have illustrated? A. Well,

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right over the hammock towards John M. Level. Q. Did the deceased place his hands upon or reach the defendant, John M. Level? A. I don’t think that he reached him. It was quite a distance across there, and that I couldn’t positively say that he reached him or not, but if he didn’t, he was close to him. Q. And after the deceased, Joseph Parenti, reached as you have illustrated, toward the defendant, John M. Level, what did he next do? A. The deceased? Q. Yes. A. He ran and disappeared through the front door, there, into the dining room.” It appears further that appellant crawled under the hammock and followed deceased and, as he was pursuing, he said: “I will have you yet, you son of a bitch of a dago; I will kill you yet.” Appellant stopped at the door of the front bedroom, pushed it open, knocking a lamp out of the hand of Mrs. Kelly and saying, “Is the son of a bitch in here?” He then continued the chase through the house to the rear and Mr. and Mrs. Kelly heard another shot fired. 1 Appellant returned to the house and said to Mr. Kelly, ‘ ‘ Come and see what I have done. ’ ’ Kelly went into the field and found Parenti about two hundred and seventy feet from a side gate in the fence between the yard and said field. Parenti was on his hands and knees and was in a dying condidition. He was shot in the back, the bullet having entered about three inches to the right of the spine and producing a wound necessarily fatal. There is not found in the record the shadow of justification or excuse for the homicide. Even defendant’s explanation of the affair affords no substantial support to any valid claim of self-defense and it was not even pretended that he was insane. In his statement made after his arrest to the district attorney he declares that he went to Kelly’s to warn deceased not to interfere with appellant’s family and he found deceased sitting on the porch and “I says, ‘You are the man I want.’ I says, ‘I want to inform you not to come between me and my wife.’ So I says, ‘If you see her, don’t speak to her.’ I says, ‘If you do, I will follow you to the end of the world, or get you. ’ So he got indignant. He says he docs as he God damned please to do. I says, ‘Don’t get excited; don’t open your head, or I will blow it off. You have interfered as far as I am going to bear.’ He jumped up and got a chair and I shot at him. Mr. Chenoweth: How many times ? Mr. Level: Three. Mr. Chenoweth: Three times on the front porch? Mr. Level: He went