People v. Cebulla

COOPER, C.

Defendant was charged in the information with the crime of murder, convicted of manslaughter, and sentenced to eight years’ imprisonment at San Quentin. He appeals from the judgment and order denying his motion for a new trial.

1. He claims that the evidence does not support the verdict. The evidence is not pointed out nor analyzed, hut the broad assertion is made that “the testimony is so clear, direct, and uncontradicted, that the homicide was justifiable under the law of defense of habitation, that we ask for a reversal on that ^ground as well as other grounds.” We have said before that it is not incumbent on us to examine the evidence under such mere assertion, with no argument to support it.

(People

v.

McLean,

135 Cal. 306;

People

v.

Woon Tuck Wo,

120 Cal. 297.) But in view of the fact that the liberty of defendant is involved, we have examined the record, notwithstanding the derelictions of defendant’s counsel; and there is ample evi

[316]

dence, which, if true, would have justified the jury iu finding defendant guilty of murder. There is evidence to the effect that on Sunday evening, June 2,1891, the deceased, Donnelly, and one Anderson left the Donnelly Ranch and went to visit a neighbor, Mr. Funck, about a quarter of a mile distant. They remained at Funck’s cabin about an hour and a half, and while there they all engaged in drinking brandy. Deceased, in company with Anderson and Funck, about Mine o’clock, left Funek’s place and went down the river, about a half-mile, to defendant’s cabin. The defendant had a jug of brandy, offered it to all the party, and they all engaged in drinking. After the drinking had continued for some time, deceased, Anderson, and Funck started to leave for home, but while outside near the fence, defendant and deceased commenced fighting. It does not appear that there was any reason for the fighting, except that they had been drinking. After they had fought for some time, and had been rolling on the ground, Anderson and Funck succeeded in separating them and started to take deceased home, but before they had fairly started deceased went back to the door of defendant’s cabin and asked him to come out and fight; told him that he would fight with him in any manner. Defendant was inside his cabin with his rifle. As deceased started to return to the cabin defendant said: “If that son of a bitch comes back I am going to kill him.” Defendant then loaded his rifle. When deceased came to the cabin door defendant said: “You son of a bitch, keep away from here or I will kill you.” Deceased said: “Frank, you don’t mean what you say.” Defendant replied: “Yes, I mean what I say.” Lind, who was in the cabin with defendant, told him not to kill deceased, but while deceased was standing at the door, outside the cabin, unarmed and drunk, defendant fired the shot which immediately caused the death. Defendant, in his own testimony, admits that he loaded his rifle, and that he said to deceased, “ ‘If you come in here I will shoot you.’ . . . He took hold of the door and started to come inside; that is the reason why I shot him.”