People v. Andrade

JAMES, J.

The defendant was convicted of the crime of murder and by the verdict of the jury his punishment was fixed at imprisonment for life. Judgment in accordance with that decision was regularly made. A motion for a new trial being presented was denied by the court, and an appeal was taken from the judgment and order. The transcript on appeal was filed on May 13, 1916. No brief was offered to be filed on the part of appellant until October 17th. At the last-mentioned date a brief was deposited in the office of the clerk of this court. At the time set for oral argument on the calling of the calendar on October 24, 1916, appellant’s counsel did not appear, and the attorney-general moved for an affirmance under the provisions of section 1253 of the Penal Code. The motion was properly made under

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the sanction of the statute, and it would have been altogether appropriate that the judgment asked for be entered. However, as the charge is that of murder, and the defendant was convicted of the first degree of that crime, we have felt it fitting that some examination be made of the record in order to determine as to whether the defendant was properly convicted. There was a former trial in this case and upon an appeal being taken, a new trial was ordered to be had because of certain errors committed by the trial court. It was from the judgment pronounced and order made after the second trial that this appeal was taken. We have carefully examined the record and are convinced that the evidence heard by the jury fully sustains the verdict, and that no material errors were committed by the trial judge which would entitle defendant to have the judgment set aside. The facts of the case, as disclosed by the evidence, were in brief as follows : Defendant in January, 1915, was one of a party of woodehoppers engaged on a ranch in the county of Tulare; on about the ninth day of January, their work at the ranch being finished, they prepared to go to Visalia. The deceased happened by their camp, riding in a country wagon and driving a mule. He stopped and talked with the men, all of whom were Mexicans, and offered them wine which he had in a jug, of which all partook. Deceased assisted them in repairing a wagon, and then requested the defendant to accompany him while he went to secure more wine. The defendant at first demurred, but was finally persuaded to go, and the two men rode away together. They visited an Italian, who sold them more wine, and later left his place. Cook, the deceased, was not seen again alive, but on the following morning his dead body was found in a road. The