People v. Grimes

McFARLAND J.

— Defendant was charged with the murder of one Charles McLaughlin, and was convicted of murder in the second degree, and appeals from the judgment and from an order denying his motion for a new trial.

The principal features of the case are these: At about 6:30 o’clock of the morning of December 26, 1899, the appellant, the deceased, and one Gleason were engaged in playing poker in a card-room adjoining the main saloon of Fred Lutz, in the town of Ophir, Placer County. They had been so engaged through most of the previous night. When the last hand was being played, the deceased “called” the appellant, and upon the latter naming his hand, deceased said, “Thatis good,” and threw his hand over to Gleason, who was to deal next. Appellant pulled the money which had been bet partly towards his own pile, when deceased demanded to again see the hand. Gleason, who had taken up appellant’s hand preparatory to shuffling for another deal, took appellant’s hand from the top of the deck and spread it upon the table, when it appeared that there were six cards in it. Gleason testified that there were only five cards in appellant’s original hand, but that in taking it off the deck he had accidentally taken another card with it. The deceased immediately charged appellant with having six cards in his hand, and, reaching over the table, he took the money, which was lying some little distance from appellant’s pile, .and put it in his pocket. Appellant demanded the money back and deceased refused to give it to him, and thereupon the game ceased. The parties then went into the main saloon, where appellant several times demanded the money of the deceased, who refused to give it to him, and threatened to strike defendant if he did not let him alone. Deceased asked all present to drink, but appellant refused. The deceased, after he had taken his drink, went back into the

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card-room, and was heard walking to and fro across the room. Appellant then took a drink by himself, saying to the barkeeper, “This will probably be the last drink I will ever take.” He then drew his pistol and started towards the opening in the partition which led into the card-room. When a few feet from the opening, he was heard to say to the deceased, “ Give me back my money, you----, or I will shoot you,” and the deceased was heard to say, “ Shoot, you coward; you dars’ n’t.” Thereupon appellant shot the deceased, who retreated, and appellant shot at him several times afterwards. Deceased died within half an hour, from the wounds inflicted by appellant.