Brooks v. Sessagesimo

BARNARD, P. J. About 1 or 2 o’clock on the morning of April 14, 1932, one Joe Brooks, a colored man, broke into a chicken-house at the home of the defendant and while there was shot and killed by the defendant. The defendant at once reported the matter to the police authorities and an investigation was immediately made, the result of which [680]was that the defendant was not held or prosecuted. This action was brought by the heirs of the deceased to recover damages, it being alleged that the death was caused by the wilful act of the defendant. The court found in all respects in favor of the defendant, and, among other things, found as follows: “That on or about the 14th day of April, 1932, the defendant shot and killed Joe Brooks; that at the time said defendant shot and killed said Joe Brooks, said Joe Brooks manifestly intended by violence and surprise to commit a felony, and at said time, said Joe Brooks was committing a felony, to-wit, burglary, and said burglary was being committed by said Joe Brooks in the night-time, and that it was being committed upon the property and habitation of defendant. That it is true that defendant acted at all times in a careful and prudent manner and as a reasonable man would act under all the circumstances.” From the ensuing judgment the plaintiffs have appealed.

It is first urged that the evidence is insufficient to support the finding that the homicide was justifiable. The respondent owned his own home in the city of Fresno. There was a fence along the alley at the rear of his lot and on the evening before the shooting occurred the gate in this fence was left shut. About twenty feet away from this fence there was a chicken-house and chicken-yard, in which were a large number of chickens. The door to the chicken-house was locked with a padlock. The respondent was awakened by the barking of his dog which was chained up in the back yard. ITe heard a noise coming from the direction of the chicken-house which sounded like something breaking and, after arming himself, went out to investigate. It was quite dark but he saw a man move at the chicken-house door, either just inside or just outside of the chicken-house. He also heard the chain on the chicken-house door rattle. He immediately fired three shots, one of which killed the deceased. He testified that he was afraid to call out or give a warning for fear the man he saw would kill him and that he had previously known a man who was killed after giving such a warning. When the officers arrived they found the door to the chicken-house broken, the body of the deceased just outside this door and what was apparently the intruder’s hat inside of the chicken-house. The gate through the rear fence was found open.