People v. Brittan

VAN FLEET, J. Defendant was convicted of manslaughter in killing one Phillip A. Reilley, and appeals from tbe judgment and an order denying him a new trial.

1. Defendant’s contention that the verdict is not sustained by the evidence is not maintainable. the killing was admitted by defendant, bis defense being that it was committed in necessary self-defense. There is a conflict in the evidence as to whether defendant or the deceased started the difficulty which ended in the homicide. The trouble commenced in a saloon, and ended on the sidewalk outside. The evidence all shows that, when the parties reached the sidewalk, the defendant was knocked down or thrown down by deceased, and that while the deceased was on top of defendant on the sidewalk the latter was very roughly handled, partly by deceased and partly by a companion named Cunningham, the latter kicking the defendant several times about the head and face while he was being held down by deceased. Deceased finally permitted defendant to get up, upon the latter saying that he had enough and did not want to fight. On getting to his feet defendant backed out some eight or ten feet from the sidewalk into the street; and at this point a very sharp conflict arises as to the subsequent events. The evidence of the prosecution tends to show that when deceased let defendant up, deceased started to look for his hat, which had fallen off in the scuffle, and that while he was thus engaged, and making no further hostile demonstration toward defendant, the latter suddenly drew a pistol, and saying, “Take that, you son of a bitch,” or some like expression, fired the fatal shot; while that of the defense would tend to show that after letting defendant up, deceased still continued to challenge and dare him to fight, and was advancing upon him in a menacing manner, when defendant [411]drew bis weapon and fired. There was no pretense that deceased at any time threatened or made any movement to use a weapon, nor does the evidence show that he was armed; but it,is conceded that he greatly overmatched defendant in size and strength. It is apparent from this statement that, although conflicting, there was certainly evidence to warrant the verdict, and we cannot, therefore, disturb the finding of the jury.

Nor was there, as claimed, any such disparity in the statements of the witnesses of the prosecution as to render their evidence inherently improbable or necessarily unworthy of belief. It was no greater, in fact, than is usually to be found in the statements of different eyewitnesses to an affair of the kind.