People v. Denomme

CHIPMAN, C. Defendant, Jeremiah Denomme, was charged by information with the crime of murder, alleged to have been committed upon one C. B. Molbeek, at the county of Fresno. Upon his plea of not guilty a trial was had and a verdict of guilty of manslaughter returned, upon which he was adjudged to punishment for five years in the state prison. This appeal is from the judgment, and from an order denying defendant’s motion for a new trial.

1. Appellant claims that the evidence does not justify the verdict. The homicide occurred in a saloon. Deceased was quite drunk, although able to walk. Shortly before the assault he had been drinking at the bar with two other men, when some trouble arose, and the bartender knocked one of the party down. Defendant was not one of those three, but was in the saloon at the time. Just after this occurred, deceased started to go toward the rear of the saloon, and on his way passed near defendant, who was standing near a safe, talking with another person. A witness, who was sitting at a card table at the time, facing the bar and the parties, saw deceased as he approached defendant, and testified to. what deceased said, as follows: “ ‘It is a—’ I couldn’t tell whether he said, ‘You are a son-of-a-bitch,’ or whether he said, ‘It is a son-of-a-bitch of a shame for to hit a man like that. ’ Something like that. I know the ‘shame’ was brought in. I don’t know whether he called this man [defendant] a son-of-a-bitch, [229]or whether he said it to himself. That was the first time he went over there. This defendant reached up his hand, and he pushed him to one side. He says: ‘Go on. I don’t want to have no trouble.’ Molbeck [deceased] got a couple of steps back, and he walked up toward the man again; and, with this, defendant grabbed him by the neck and hit him. Molbeck was good and drunk. Then defendant come up and hit him like this, hard [illustrating over the heart], and Molbeck started back; put his hands up this way over his face. Then the defendant kept hitting him, hitting him like that [illustrating over the heart], I shordd say about four or five times.” Other persons witnessed the assault at different stages. Deceased had no weapon in either hand, and did not strike defendant at any time. One witness asked defendant why he struck deceased, who replied that he stepped on his toes and called him a son-of-a-bitch. Defendant testified that deceased came up to him, and asked the way to the water-closet, and, being told, deceased replied, “You bastard son-of-a-bitch! I know where the water-closet is as well as you do,” whereupon defendant pushed him away. He testified: “He came back—he had this hand shut and this open— toward me, and when I see he was near to me I strike him. I strike him in the face.....I struck him twice on the body.....I was afraid he might hurt me bad or get something.” At another place he testified: “I didn’t see anything in his hands. He had his left hand open.” He also testified that he struck the deceased to protect himself. He was asked if he noticed the condition of deceased, and answered : “Well, I thought the man might have a little liquor in him, but not right drunk, seemed to me. I didn’t pay much attention to the man, never having seen him before.” Defendant did not testify that the manner of deceased was menacing or threatening, nor did it appear from any of the evidence that defendant was in the slightest degree justified by any conduct of deceased in making so violent an assault under the reasonable belief that his own life or limb was in danger. The reason for the assault given by defendant furnished no justification. The deceased was placed in a chair shortly after the assault, and died in about two hours a.t the saloon. The autopsy disclosed rupture of the heart, from which death ensued, and the evidence was that blows such as deceased received at the hands of defendant were sufficient