People v. Avilla

BARNARD, P. J.— The defendant was charged with the murder of his wife and was found guilty of second degree' murder. He appeals from the judgment,' and' from an order denying his motion for a. new trial.

The appellant and his wife had been married for 33 years. He was 65 years of age, and was afflicted with some sort of heart ailment. He had had two “strokes,” one of which left him blind in one eye and partially paralyzed on his left side. He had been unable'to work for three or'four years but was able to walk about the house and yard, and go to the grocery store. He did most of the housework while his wife worked elsewhere and supported the family. There is evidence that during this period the wife was attentive to his wants and solicitous of his welfare.

The couple lived in a small- house in La Jolla. On May 10, 1950, a man and his wife who lived next door, their house being but five feet away, came over and visited from 6 to 8 p. m. They had two “short drinks” of whiskey each, except that the appellant drank two "glasses of diluted wine. These neighbors went home about 8 p. m. and after sh.e had prepared dinner the neighbor’s wife heard a shot, and about 10 minutes later another shot. Thinking he had shot at a dog, she paid no attention to it. Shortly thereafter, she heard a “pounding on the floor” which was a signal they had agreed upon in the event the appellant had one of his heart attacks and needed help. She went over and found the appellant lying on a couch in the living room. • He had a bad wound in the shoulder, there was a large amount of blood on his clothing and the couch, and a rifle was lying there. When she entered the appellant said “I shot and killed Jessie.” She asked him if he realized what he had said, and he repeated the statement. She asked him where the deceased was and he answered “She is somewhere in the house.” She went to the kitchen and found the appellant’s wife slumped over the table, dead. Apparently, she had been sitting there curling her hair and applying cosmetics. Police officers arrived about 9:30 and the appellant told.them he had shot and.killed his wife and not to blame anybody but him.

The appellant was taken to a hospital and his own doctor [89]called. He told this doctor “Jessie kept at me and kept at me and that is why this came about.” In the presence of the doctor the appellant told an officer that his wife was always nagging at him and that he told her she would be sorry some day if she didn’t stop. He also told the officer that his wife had become intoxicated during the evening and had cursed him; that he went to the closet, obtained the gun, loaded it with two shells and fired at his wife; that he then placed the muzzle of the gun under his left armpit with the intention of committing suicide; and that he was disappointed that he missed the vital spot.