People v. Rivera

HOUSER, J.

Defendants were convicted of the crime of manslaughter and they appeal froin the judgment as well as from the order denying their motion for a new trial.

The usual conflicts appeared in the evidence; but, relying upon the right of the jury to justly discriminate as to the testimony given by the several witnesses in the case, the jury was warranted in basing its verdict upon the following facts:

Ralph Carnevale and his brother Carlo Carnevale were the owners of a certain restaurant. The defendants, one of whom being a police officer and the other a deputy sheriff, in company with two other men, one of whom also being a police officer, at about the hour of 12 o ’clock at night went

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to the restaurant belonging to the Carnevale brothers for the purpose of obtaining some refreshments. Neither of the defendants, nor either of their companions, was in uniform. On arriving at the restaurant it was found to be closed to the public for further business on that night, although some of the patrons thereof were still being served. After some delay the party was admitted into the restaurant; whereupon, according to the testimony of some of the witnesses, two of the members of the party proceeded to look into each of the several booths located in the rear of the restaurant, and to smile at some of the ladies who were seated therein. One of the members of the party demanded that he be served with a “trago,” which is interpreted to mean a drink of intoxicating liquor, and on being told that nothing of that sort was dispensed in the restaurant, remarked that he wanted it by “force.” No violence nor threat of any sort, however, other than the implied threat contained in the statement made by one of the defendants that if necessary he would use violence to obtain that which he sought, was offered by any member of the party toward either of the proprietors of the restaurant, or to any person therein. Cigarets were purchased by and a cup of coffee ordered for each member of the party, which was served to them by Ralph Carnevale, one of the proprietors of the restaurant. He, however, was apparently suspicious of the good intentions of the defendants and their party, and on three separate occasions directed one of his employees to telephone to the police station for the “flying squadron.” The employee having failed to carry out such direction of his employer, Ralph Carnevale sprang over the counter which separated him from his unwelcome guests, and, flourishing a revolver, ordered them to throw up their hands and to vacate the premises. Defendant Adolph Rivera and his brother police officer did as they were thus ordered. The defendant Joseph Rivera, however, refused to comply with the order made upon him to throw up his hands or to leave the restaurant, although Ralph Carnevale was very close to him and toward the close of the incident had the muzzle of his pistol gressed against Joe Rivera’s body. While the two men were thus engaged, Carlo Carnevale came forward in the restaurant and, seizing the defendant Joseph Rivera by the coat collar, shoved him out of the door of the restaurant on to the sidewalk and immediately closed the