People v. Morales

SHAW, J.

This is an appeal from a judgment convicting the defendant of the crime of manslaughter and from an order denying his motion for a new trial.

[551]

The defendant was charged with the murder of one George Lee Wilson. The evidence on behalf of the prosecution shows that the deceased and one Albert Smith, having a warrant for the arrest of the defendant, entered his house at the time of the homicide for the purpose of making the arrest, found the defendant in bed, and that, while defendant was in the act of dressing, Wilson stooped to get defendant’s shoes, whereupon the defendant grabbed Wilson’s pistol and fired the shot which killed him.

The defendant claims that the evidence is insufficient to show that it was he who fired the fatal shot. In this, however, he is evidently relying upon the evidence given on behalf of the defendant. The evidence for the prosecution clearly shows the facts as above stated, and it was for the jury to determine with respect to the credibility of the witness.

The defendant also contends that under the circumstances of the case the homicide was justifiable, on the theory that the officers used undue violence in making the arrest. In his brief defendant’s counsel ask this question: “Had they the right to drag him forth by the hair of the head at almost the hour of midnight, when all nature was at rest, and thus by their manner and conduct-strike terror into the very hearts of the inmates of that little home %” Here, again, counsel are relying upon the testimony of the defendant and the witnesses in his behalf. The testimony of the prosecution shows that the officers informed him that they were there to arrest him and used no undue violence in making the arrest, and that the precautions they took in the way of displaying pistols to intimidate the defendant were eminently proper in view of the character of the defendant, as disclosed by the subsequent occurrences. Notwithstanding all their precautions, the defendant succeeded in escaping, at the cost of the life of one of the officers.

The defendant objeetéd to the admission in evidence of the bullet taken from the body of the deceased, accompanied by a small piece of tin. The objection was not well taken. It was shown that the bullet was found in the body of the deceased and caused his death, and that at the time it was taken from the body it had attached thereto a small piece of tin, which had afterwards become detached while the bullet was in the possession of the sheriff. The significance of the piece of