People v. Tagawa

PULLEN, P. J. In an opinion affirming an order granting a new trial (People v. Tagawa, 35 Cal. App. (2d) 14 [94 Pac. (2d) 354]) the facts in this case are fully set forth, and it is not necessary to repeat them again.

The matter is now before us on an appeal from a judgment of conviction of murder in the first degree with punishment fixed at life imprisonment.

The principal grounds for reversal as urged by appellant seem to be the insufficiency of the evidence to support the judgment, that the court erred in admitting in evidence a certain account book, and also erred in an instruction to the jury.

Two witnesses testified they saw appellant shoot the deceased. I. Takada testified he stood in the cage of the lookout, or watchman, and from there he saw what happened in the yard below. Appellant claims that due to the angle of vision, a person standing where Takada said he was, could not see the deceased as he fell. That, of course, we do not know. No witnesses were called to establish that fact, nor were the jury asked to view the premises. That was a matter of defense to be submitted to the jury.

Appellant also claims the testimony of the other eye witness, Tomita, is highly improbable. It is argued that if, as he testified, the deceased and his killers followed Tomita [586]as closely as they apparently did, he would have seen or heard them on the stairs immediately behind him. That is also a matter for the jury. Certain discrepancies are also pointed out in their testimony as given at the first trial and as given at the second trial. As has often been said, the credibility of the witnesses and the weight to be given their testimony is exclusively for the jury. We cannot go into that matter here.

Appellant claimed he was in Los Angeles at the time of the murder and that he is the victim of a plot. That is a proper matter of defense and was presented to the trial court and jury and evidently not believed. We have read the entire record and are convinced as were the jury in the first trial and the jury in the present trial, that appellant was the man who shot the deceased.

It is next claimed the court erred in admitting an account book of a hotel where appellant lived just prior to the murder. It is claimed the witness Kubo has no personal knowledge of the transaction of which he testified.