People v. Small

HERNDON, J. Defendant appeals from the judgment of conviction entered following a nonjury trial wherein he was found guilty of voluntary manslaughter and assault with a deadly weapon. Appellant’s brief presents a variety of arguments which may be considered as relating to his two basic assignments of error: (1) that the evidence was not sufficient to support the judgment; and (2) that his representation by counsel was inadequate.1

Reviewing the record in the light most favorable to the respondent, as we are here required to do, the evidence indicates that appellant visited the residence of a Mrs. Washington, located at 901 Bast 27th Street in the City of Los Angeles, on the morning of February 3, 1962. Several witnesses testified that appellant had been ordered to leave following an altercation with a Mr. Henderson arising out of appellant’s attentions to a woman. Obscenities were exchanged and appellant left, promising to return.

He returned later, carrying a gun in his shirt, and asked for Mr. Henderson. Again he was ordered to leave and there was evidence indicating that he was physically ejected through the backdoor. He retreated backward down the steps, firing his gun into the back porch through the screen. Two men who were leaving the building via the back porch were struck by the bullets, and one of them died as the result of the wound thus inflicted. Numerous witnesses who knew appellant, and who were either in the house or on the street just outside the backyard, described the shooting as [620]they were able to observe it. Other witnesses who did not know appellant also described the event in similar fashion, and testified that he generally resembled in size and dress the man they had seen firing the gun.

No useful purpose would be served by detailing the testimony of the eleven eyewitnesses who testified for the prosecution. Except as to minor details, their testimony was entirely consistent. By way of .defense, appellant testified to. substantially the same facts as those proved by the prosecution except that he denied that he had a gun when he returned to the premises. He stated that after he had been ordered off the premises the second time, he left via the back door and then heard a shot behind him. He said that he did not see anyone shooting, but hastened up the alley for fear someone might be after him.

The determination of the credibility of the witnesses being solely within the province of the trier of the facts, and since the evidence tending to sustain the judgment is overwhelm-? ing, it is manifest that appellant’s first assignment of error is completely devoid of merit. Further, “Even if this-court were of the opinion that the evidence produced by appellant was reconcilable with innocence, if the [trier of fact], on conflicting evidence, has found to the contrary, the reviewing court is powerless to interfere.” (People v. Kemp, 55 Cal.2d 458, 471 [11 Cal.Rptr. 361, 359 P.2d 913].)