People v. Bennett

HENSHAW, J.

Defendant, informed against for the crime of murder, was adjudged guilty of murder in the first degree and the death penalty was imposed. From this judgment and from the order denying his motion for a new trial he appeals.

Upon appeal the contention is most earnestly urged that the evidence is insufficient to sustain the verdict of murder in the first degree, and that a verdict of manslaughter, at the most, is all that the evidence warrants.

The prosecution showed that John D. Stirling, the deceased, was foreman on a stock ranch in Monterey County; that defendant, previous to the homicide, had been employed upon the same ranch; that the deceased, finding him asleep when he should have been at work, reported the fact and defendant was discharged. From his expressions concerning the matter defendant entertained some feeling of bitterness toward deceased upon that account. Defendant obtained employment upon a neighboring ranch. The two met about 11 o’clock in the morning at the Brockman House bar in the town of Gonzales, and there spent their time until 4 or 5 o’clock in the afternoon. They drank together, played cards together, and several times the defendant borrowed small sums of money from the deceased. During this time the defendant accused Stirling of having caused him to be discharged. Stirling replied that he had done no more than his duty, and that the defendant had no occasion to harbor ill feeling against him on that account. The defendant replied, “Well, I have no personal feelings, but I know you are the cause of it.” More than once the conversations turned upon the fencing of a gap in the hills, defendant declaring that he had been instructed to fence this particular gap, the deceased objecting to it, declaring that he used the

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gap in the “rodeoing” of his cattle, and if he found the fence there he would tear it down, and would tear it down as often as it was built up. The two men continued to drink, and as the day wore on their conversation, always harking back to the fencing of the gap, grew more and more acrimonious, until the proprietor feared there would be a fight. He asked the deceased to leave the place to avoid trouble. At this time both men were angry. The deceased replied that he would make no trouble, and did promptly leave the place, going to a nearby saloon. Before he left, however, the deceased had asked a friend in the saloon to lend him his pistol to carry while he was rodeoing, as he had broken his own. The friend assented. His pistol, with its belt and cartridges, was behind the bar, and the barkeeper put them on the counter for the deceased to take. Deceased said that he did not want the pistol at that time, but would take it before he left town, and the barkeeper replaced it. It is in this connection urged by the defense that defendant heard the deceased ask for the pistol, and assumed that he was armed. But if he heard this part of the conversation, it is a fair inference that he heard the rest of it, and thus knew that the deceased did not take the pistol and was not armed. About ten minutes after deceased’s departure defendant left the saloon, went to a nearby store and purchased a revolver and some cartridges, loaded it, thrust it in his pocket, and went to Seattini’s saloon where deceased was. Entering, he invited the deceased and the barkeeper to drink with him and they did. After drinking, the two men engaged in conversation, and again that conversation turned upon the fencing of the gap. The barkeeper testifies: “Bennett and Stirling were standing by the barrel I should judge fifteen or twenty minutes, and chewed the rag about that gap. They were talking in an angry voice and pretty loud, but I didn’t hear any profane language used or curse words of any kind. I gathered from their conversation that there was a spring of water somewhere around that gap, where cattle Avent to drink. Bennett said that his boss requested him to close up that gap so people or cattle couldn’t pass through. Stirling said if it was closed up he would tear it down. Bennett and Stirling were not drinking at this time. They were feeling pretty good. Finally Stirling stepped up to Bennett and said, ‘Since you were up there and chopped wood you have had it in