People v. Marquez

DORAN, J. This is an appeal from the judgment and from the order denying a motion for a new trial.

Defendant was charged with murder and assault with a deadly weapon with intent to commit murder. A jury was waived. Defendant was adjudged guilty as charged on both counts. It is contended on appeal that the evidence does not support the judgment of such conviction and that each should be reduced in degree to murder of the second degree and assault with a deadly weapon, respectively.

[448]The victim of the alleged murder was a 14-year old youth. The record does not reveal the age of the defendant.

As recited in respondent’s brief, “During the day of December 22, 1950, appellant was at work at the Great Western Meat Company, where he was a butcher, being employed to bone beef. One Carmen Romero, who had known appellant for about two weeks, worked with him there. On this particular day they worked until 4 p. m., after which there was a company Christmas party at which whiskey was served. Having had a few drinks, they left at about 5:15 p. m. in Carmen’s car. The appellant was walking and talking normally at this time but was apparently “feeling good.” The appellant told Carmen that he wanted to go home. In the car, however, he told Carmen that he wanted to make a phone call. Carmen stopped the ear, and appellant went to complete the call. On his return, appellant asked to be taken to a friend’s house. They drove to Ruth Terronez’s residence, Carmen parking the car on 12th Street near Central Avenue. They got out of the car, walked around the corner and up the back steps to the Terronez apartment-. It was now about 6:40 p. m. and was getting dark. In the apartment they met some “boys.” . . . Sebastian Avila, 14 years of age, Ruth’s cousin, a person named Santos, 16 years of age, Josephine Marrajo, a high school girl, David Delgado, 17 years of age, Joe Holguin, Gregory Garcia, age 18, and Joe Garcia, 17 years of age.”

Shortly afterward an argument took place which developed into a fight. The record reveals that defendant struck David Delgado in the face when, as recited in respondent’s brief, “David’s brother, Gregory, who was in another room, heard something fall, came in and saw David on the floor and attempted to assist him. He pulled appellant off David who appeared to be unconscious on the floor. A general altercation followed, but Santos and Sebastian remained out of the fight. The others piled upon appellant who was then on top of Gregory. Gregory had been knocked to the floor and appellant had jumped on him, threatening, ‘I am going to kill you.’ David, Carmen and Joe Holguin then pulled appellant off Gregory. Joe Garcia was also knocked down in the fight. Appellant resumed his attack upon David; so Gregory obtained a small rifle butt which he had noticed on the hack porch and struck appellant who then had David on the floor beating and cursing him. After a few blows of the rifle butt, appellant let David go.