People v. Martinez

BARNARD, P. J. The defendant was found guilty of murder in the first degree with a recommendation of life imprisonment. He appeals from the judgment and from an order denying his motion for a new trial.

[627]It is first contended that the evidence is not sufficient to support the verdict. The defendant admitted that he shot and killed one Venturo Romero but claimed that he acted in self-defense. There is evidence of the following facts. The appellant and the deceased engaged in a fist fight on October 9, 1938, which the appellant says he won. He was six inches taller than Romero. . Half an hour later Romero returned and struck the appellant with a piece of iron pipe.

On the evening of October 14, 1938, the appellant, accompanied by two others, was proceeding easterly on a street in Cucamonga when they met Romero and two companions, who were traveling westerly along the same street. It was dark but the scene was partially lighted by electric lights some 90 or 100 feet away. As the two groups approached each other the appellant said: “Venturo, come over here.” Romero went over “a little ways” and the appellant said: “That is just where I want to get you”. The appellant then fired the first shot which went into the ground. At that time Romero was standing still with his hands by his side and with nothing in his hands. When he fired the first shot Romero said, “You can’t scare me with a gun”, and immediately thereafter the appellant fired a second shot which struck Romero in the abdomen, causing his death some thirty minutes later. All of this took place within a few seconds. Romero, clutching his abdomen, walked or ran to a store some 150 feet away. The appellant followed and, pointing his gun at him, asked if he wanted another shot. Romero collapsed in front of the store and died without making a statement. There were no powder marks on Romero’s body or on his clothing and a grape or vineyard knife was found in his right front pocket.

There was evidence on behalf of the appellant to the effect that when the two groups met the appellant called to Romero and asked “Was he looking for him?”, to which Romero replied: “Yes”; that Romero had a knife in his hand and took a step toward the appellant with his arm held back; and that the appellant then shot twice in rapid succession, the first shot being aimed at the ground. The appellant testified that he was afraid of Romero; that he believed his life to be in danger when he fired each shot; that he saw a knife in Romero’s hand before the first shot was fired; that Romero started toward him before he fired the first shot; that he car