People v. Farley

BEATTY, C. J. The defendant was accused by information of the crime of murder and found guilty of manslaughter. He appeals from the judgment and from an order denying his motion for a ne\\v trial.

[595]It appears from the evidence in the record that a quarrel had occurred between the defendant and the deceased early in the morning, in which the deceased was very insulting and abusive and wholly in the wrong. This quarrel was renewed after some interval of time, apparently by the fault of the deceased, and a fight ensued, in which the defendant was worsted. The parties being separated by the bystanders, the deceased continued to threaten and abuse the defendant, who thereupon borrowed a pistol from an acquaintance. Within half an hour after borrowing the pistol he again encountered the deceased. The evidence is conflicting as to what then occurred. According to the evidence of the defendant himself, the deceased assailed him with a foul epithet and immediately attacked him with a pocket knife, which he had open in his hand. _ He sajrs that he warned deceased that he had a pistol; that the deceased grasped his pistol with his left hand and cut him with his knife; that he jerked the pistol away from deceased and fired once, when the deceased turned away and passed into a store near which they were standing. In respect to these matters the defendant is partly corroborated and in part contradicted by his own witness—and they each contradicted themselves upon minor points.

From all the testimony it seems pretty clear that but one shot was fired, and that the fatal bullet passed through the left arm of the deceased about five inches from the point of the shoulder, and thence directly through his body from left to right, making its exit at the right arm-pit. Death ensued in a few minutes, the deceased making no dying statement.

The first error assigned is the admission over 'the objection of defendant of the evidence of the.surgeon performing the autopsy, that the left arm of the deceased must have been hanging down by his side when the fatal shot was fired. The ruling of the court upon this point was erroneous (People v. Milner, 122 Cal. 181; People v. Smith, 93 Cal. 445; People v. Westlake, 62 Cal. 303), but can scarcely have been harmful. It was not introduced for the purpose of contradicting defendant’s account of the struggle, for he had not then testified; and in point of fact it did not contradict him, for the fact that the arm of the deceased was hanging by his side when the shot was -fired is not