People v. Brooks

McFARLAND, J.

By the information the appellant Brooks and one Tony Bice were jointly charged with the murder of Don Donelly. Brooks was tried separately and convicted of murder in the second degree. He appeals from the judgment and from an order denying a motion for a new trial.

The record is in a very loose and unsatisfactory condition. The hill of exceptions, after showing that certain witnesses were examined at the trial and certain evidence taken, contains a statement of the contents of a certain alleged dying declaration of the deceased which was used at the preliminary examination before the magistrate, hut the record does not show that said declaration was introduced in evidence at the trial. There is also a statement of a recitation of certain evidence and facts made by the judge at the time he pronounced sentence; but the

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things which he recited do not appear among the evidence taken at the trial. Of course, this is a mere statement of what the judge said, but there is nothing to show that the evidence to which he alludes was introduced; and these things cannot be considered here. In determining this appeal we can consider only the evidence which the record shows to have been introduced.

The record, as we must consider it, presents only two contentions of appellant which need be noticed: 1. That the evidence is insufficient to sustain the verdict of guilty; and 2. That the court erred to appellant’s prejudice in refusing to give certain instructions to the jury which appellant asked.

1. We cannot say that the evidence was insufficient to support the verdict. The main facts of th'e case are these: On the morning of June 27, 1899, shortly before daylight, appellant was in the Favorite Saloon, in the city of Fresno, where he was employed as a barkeeper, and after some conversation through the telephone, in the saloon, he went out and remained away about ten or fifteen minutes, when he returned. When he left the Favorite he went to another saloon across the street and in the immediate neighborhood called the Golden West, to which place he had been summoned through the telephone. He had there a whispered conversation with a Mr. Ardell, and after remaining in the Golden West a minute or two he went out of the side door behind certain “cribs” or houses of prostitution. That part of the city is known generally as Chinatown and is occupied to a great extent by prostitutes. It does not appear where he went immediately after leaving the Golden West, but, as before stated, in about ten or fifteen minutes he returned to the Favorite Saloon and appeared to be in a state of great ’excitement. He hurriedly went behind the bar and got a pistol and went to the rear door of the saloon. At that time Eice, who was a police officer and was in or at the threshold of the saloon, followed the appellant to the back door and said to him something like: “This is my business,” or, “If there is going to be any shooting I will do it.” Eice looked out of the glass door, and seeing the deceased, Donelly, with a pistol in his hand, went out and said to him, “Throw up your hands”; but Donelly immediately fired one shot, either at