People v. Maher

BARNARD, P. J. The appellant was convicted of murder in the second degree and has appealed from the judgment and from an order denying his motion for a new trial.

It is conceded that he shot and killed one Robert Daugherty in the town of Mendota early in the morning of March 2, 1934. No claim is made that the evidence is not sufficient to sustain a conviction of murder in the second degree and practically the only contention here is that the' [135]court erred in failing to give an instruction defining manslaughter, in not referring to manslaughter in another instruction, and in not including such a verdict in the possible forms for a verdict which were submitted to the jury. It is well settled that such an issue need not be submitted to a jury when the evidence does not show any of the elements of manslaughter and when the facts are such as to warrant only a verdict of murder or one of acquittal. (People v. Ferugia, 95 Cal. App. 711 [273 Pac. 99]; People v. La Vers, 130 Cal. App. 708 [20 Pac. (2d) 967] ; People v. West, 215 Cal. 87 [8 Pac. (2d) 463]; People v. Johnson, 219 Cal. 72 [25 Pac. (2d) 408]).

The appellant, a butcher, and the deceased, a barber, worked in adjoining shops in the town of Mendota. Late in the evening of March 1, 1934, the two entered a cafe and beer parlor and engaged in playing poker. About midnight a man known as “Red” entered the cafe and joined in the game. Shortly thereafter an argument arose between the deceased and Red, during which the deceased knocked Red to the floor and kicked him. The appellant remonstrated, remarking that he did not think much of a man who would kick another while he was down. A little later the men went outside where the fight between Red and the deceased was resumed, at which time the appellant urged Red, who was getting the worst of it, to whip the deceased. The fight soon broke up and the deceased went away while Red and the appellant returned to the vicinity of the cafe. About half an hour later the deceased appeared in his automobile across the street from the cafe and the appellant and Red went up to the ear, one on each side. Almost immediately the deceased screamed and jumping from his car ran into the cafe with blood streaming from his head. He exclaimed, “They have hit me over the head with a wrench.” At that time he had a wrench handle in his hand. Two customers in the cafe took the deceased to the kitchen and washed his injuries. At that time the deceased picked up a butcher knife and said, “I am going out and get the fellows.” However, one of the customers took the knife from him and hid it. The deceased then proceeded to the porch of the cafe, where he fainted. He was taken back into the cafe and revived with wet towels and water. While this was going on the proprietor of the