People v. Jamarillo

McKee, J.: Defendant was convicted of manslaughter. He moved for a new trial upon the grounds, among others, that the verdict was contrary to law, and that the Court erred in refusing to give to the jury an instruction on a matter of law which arose in the case, and which ivas necessary to his defense. His motion was denied, and from the order denying a new trial, and the judgment, he appeals.

It is contended that the verdict was contrary to law, because it was shown by the evidence that the shot which killed the deceased ivas fired by one Ortego, and not by the defendant; that Ortego was, therefore, the principal in the death of the deceased, and the defendant an accessory only; that the principal, according to the verdict in this case, was only guilty of manslaughter; and the defendant, as an accessory, could only be convicted, if at all, of an assault with an intent to kill, or an assault with a deadly Aveapon; and therefore, it is claimed, the verdict is contrary to law.

But the information ran against the defendant alone, and it alleged that the defendant had committed the crime of murder, by feloniously killing one Edmund Sixby, in the county of San Bernardino. The accusation Avas, therefore, against the defendant as a principal, not as an accessory; and the evidence before us shows that he participated in the act of killing.

The record does not contain all the evidence given at the trial; but it discloses the facts that one Ortego had quarreled with Sixby about some money, which, Ave infer from some expressions which were used by the witnesses, the former had staked with the latter on a horse-race. Each of the three men, Sixby, Ortego, and the defendant, Avas on horseback, in the midst of a croAvd of people, some of Avhom were afoot, and others on horseback. The wordy quarrel between Sixby and Ortego had ceased, and the defendant and Ortego rode off together doAvn the road, in the direction of a saloon about one hundred and fifty yards aivay, leaving Sixby in the croAvd. When they came in front of the saloon, they dismounted and Avent in. In a [113]few minutes after they came out, and mounting their horses, rode back to the crowd. Just as they drew near to the crowd, the defendant unwrapped from his right forefinger a rag, and threw it down on the ground, and, as lie did so, exclaimed to Ortego, “ Yo no dejo los Americanos llevar mi dinero como tu.” Both rode their horses abreast, in a walk, through the crowd, until they confronted Sixby, and stopped; the heads of their horses being about twelve or fifteen feet apart from the head of Sixby’s horse. In that position, the defendant and Ortego each drew his pistol. Ortego said to Sixby, “You give up the money.” It docs not appear that the latter made any reply. Whether he did or not, Ortego fired, and the defendant’s pistol snapped. Two shots, however, were fired (whether both of them were fired by Ortego is not proved), when Sixby wheeled his horse and rode away at a gallop down the road; and the defendant and Ortego pursued him at a like rate of speed, firing at him as they galloped after him. This race continued for about fifty or sixty yards, when Sixby, mortally wounded, fell from his horse on the road and expired.