People v. Parrish

ADAMS, P. J. Appeal from a judgment of the Superior Court of Sacramento County, and from an order denying a new trial.

Defendant was charged with the murder of Frank Lore. The jury found him guilty of manslaughter. A motion for a new trial was denied. Defendant’s appeal is based solely upon the ground that the evidence was insufficient to justify the verdict, it being contended that although defendant struck deceased he did so in defense of his wife, and while Lore was engaged in an unlawful act amounting to a felony, to wit, rape.

At the time of the commission of the crime defendant lived with his wife in a small house at the rear of a residence at 1624 37th Street, Sacramento, which he rented from Lore. The [744]latter lived in a shack less than 40 feet distant, a grape arbor with a concrete floor intervening.

Defendant, who was a salesman and collector by occupation, 43 years old, testified that on July 29, 1942 he arose as usual at 7 o’clock and proceeded with his daily work; that about 9:30 a.m. he began to feel ill, so decided to take the day off, and believing that some stimulation might be helpful had six ginger ale whiskey highballs and then returned to his home; that he parked his car in the alley adjoining the house and saw Mr. Lore in the. grape arbor; that as the latter had frequently asked him to take a drink he told him that he would have one that day, whereupon Lore brought out a bottle of wine and two glasses; that while the two were drinking together Mrs. Parrish came out and joined them; that about 1 o’clock he decided to go to bed; that he arose between 6 and 7 o’clock in the evening, and while awaiting preparation of dinner by Mrs. Parrish, went out into the grape arbor; that Lore then brought out more wine; that he (Parrish) did not drink any more but that Mrs. Parrish came out, and he discovered that she had been drinking; that the two of them returned to their house and there had an altercation about her drinking, and, becoming incensed", he decided to leave; that he took some of his clothes and departed in his car intending to go to Grass Valley, but on the way he stopped at McKinley Park and after thinking the matter over decided to return home; that he drove into the alley and stopped his car some 150 feet away from the house; that as he approached the grape arbor he heard voices and discovered Lore and his wife drinking together; that he heard Mrs. Parrish state that she had better go to bed, but when she attempted to arise she was unable to do so and Lore assisted her into the house; that he (Parrish) went around the house and looked into the bedroom window; that he saw Mrs. Parrish’s head hit the pillow and not hearing anything from her he decided that she had gone to sleep; that he went around to the front of the house and stepped to the bedroom door where he saw Lore and Mrs. Parrish in a compromising position; that thereupon he grabbed Lore by the back of the neck, pulled him up and hit him in the eye, at the same time giving him a shove so that he fell back and crashed into the bedroom wall, then slumped down into a sitting position; that he tried to awaken Mrs. Parrish but was unable to do so, so slapped her several times; that she finally arose,