People v. Wilkes

PLUMMER, J. The defendant was convicted of murder in the second degree upon an information filed by the district attorney of the county of Tehama, charging him with the crime of murder, in that on or about the 7th day of July, A. D. 1936, at the county of Tehama, the said defendant wilfully, feloniously and with malice aforethought did kill one Frank Wilkes, a human being. From the judgment based upon the verdict of murder in the second degree the defendant appeals.

While the information gives the date of the offense as of July 7, 1936, the testimony, as we read it, fixes the date of the commission of the crime alleged as occurring on July 4, 1936.

The record shows that on July 4, 1936, a group of Indians drove from the town of Gerber to a swimming hole near and east of the town of Los Molinos, in what is known as “Mill Creek”, some five miles distant from the town of Gerber. The group consisted of the defendant, his brother Frank Wilkes, Florence Wilkes, the latter’s two children, Willena Raglin and William Raglin, ages eight and seven respectively, Frances Raglin, and one Aaron Wilsey. The testimony shows that when they started they took along a gallon of wine, about half of which was consumed. The swimming party lasted from some time in the morning until near the middle of the afternoon. Leaving the swimming party the group last mentioned got into a car and started home. On the way home a quarrel arose between the defendant and the deceased because of a slurring remark made by the former about the wife of the latter. After some discussion the defendant challenged the deceased to a fight. The car was stopped; both the deceased and the defendant jumped out and started to fight with their fists. The fist fight appears to have lasted for some little time, during which a number of other persons came [44]to the scene of the conflict. Attempts were made several times to separate the parties by bystanders, with varying success. During the course of the fight the defendant tried to borrow a knife from an occupant of an automobile who had stopped at the scene of the encounter, stating that he wanted to “kill that guy”. Being refused a knife, he returned to the automobile in which he had been riding, picked out a tire pump, and endeavored to hit the deceased over the head with it. At this time the deceased was lying on the ground. Bystanders succeeded in taking the tire pump away from the defendant. The defendant also tried to obtain possession of a cane from a bystander with which to strike the deceased. Being foiled in this, and after the fistic encounter had ended, the defendant returned to the automobile in which he had been riding, and according to the testimony of one of the witnesses, obtained a screw driver therefrom, and according to the testimony of two witnesses, while the deceased was walking away from the automobile just referred to, the defendant struck the deceased in the back, stabbing him with some instrument to such an extent that the death of the deceased occurred a few days thereafter.