People v. Smith

TUTTLE, J. Appellant was charged with the crime of murder, and thereafter was found guilty, by a jury, of manslaughter. He now appeals from the judgment of conviction and order denying a new trial.

[616]Appellant seeks to reverse the judgment upon two grounds, to wit: 1st: The insufficiency of the evidence to sustain the conviction; and 2d: Misconduct of the district attorney in his closing argument which resulted in a miscarriage of justice by affecting the substantial rights of the defendant.

Taking up the first ground, we deem it necessary to give a brief summary of the facts proven before the jury. During the times herein mentioned, appellant lived with his elderly father in a small apartment in the city of Sacramento. The victim of the killing was one Albert Burke, who had lived with his wife Leona, for some eight years, but who was not married to her until about one year prior to the shooting. Leona had been married three times, and had two children by decedent, and one by each of her other two husbands. The Burkes and the Smiths had been friendly for a number of years, living in adjoining dwellings. On the night of October 25, 1941, or very early Sunday morning, decedent went to the Smith apartment and pounded loudly upon the door. Appellant opened the door, and according to his testimony, decedent struck him with his fist, knocking him back into the room. Appellant thereupon reached for a revolver Which was concealed under some quilts. He shot the decedent several times, inflicting a wound which was fatal. The visit of decedent to the apartment of Smiths appears from the evidence to have been the result of a conspiracy between Leona and . appellant. According to the statement made by the latter, and which appears in the record, on the night of the killing, appellant and Leona had a long talk concerning her husband. Leona knew that appellant had a gun on the premises. She therefore proceeded to impregnate his mind with the idea that it would be very good strategy for the two of them to get rid of the husband in some manner. We quote from the statement:

"Question: All right. A. And I took the two drinks of whiskey, and she says, ‘ Al hit me on the jaw. ’ Well, it was swollen a little. I says, ‘The dirty cur,’ like that. I says, ‘A man who will hit a woman won’t fight a man, and,’ I says, ‘he ain’t much to do it.’ And she says, ‘I wish some kind of an accident would happen to him, either like he would get killed, or something like that.’ ‘Well,’ I says, ‘you don’t want to think nothing like that because, ’ I says, ‘we have been good friends all the way around and’—Question: Go ahead. A. And