People v. Torres

Citation210 P.2d 324,94 Cal.App.2d 146
Decision Date14 October 1949
Docket NumberCr. 2592
CourtCalifornia Court of Appeals

Emery J. Delmas, San Jose, Edward M. Fellows, San Jose, for appellant.

Fred N. Howser, Atty. Gen., Clarence A. Linn, B. Abbott Goldberg, Deputy Attys. Gen., for respondent.

NOURSE, Presiding Justice.

Defendant was charged with the murder of one Gilbert Moreno. He was convicted of murder in the second degree and appeals from the judgment and from an order denying his motion for a new trial.

It is undisputed that on the night of August 14, 1948, defendant inflicted one stab with his knife into the abdomen of Moreno, by which the aorta was pierced and death caused within a short time. The defense was that defendant had acted without intention to kill and that his action was justified as in self-defense.

Defendant and decedent were both farm laborers of Mexican parentage. At the time of the event defendant was eighteen, decedent nineteen years old. The evidence shows that two weeks prior to the event, on July 31, 1948, both had been engaged in a quarrel and fight, which a brother of decedent started with defendant in a dance hall and bar. Friends of both sides took part and one fellow combatant of defendant was knifed. When the fight was broken up decedent threatened in defendant's presence that he would get (or kill) him. Defendant testified that because of this threat combined with the fight and the knifing he was afraid of decedent and began to carry a knife. He knew of the reputation of decedent in the Mexican community as a marijuana user and troublemaker. Other defense witnesses also testified as to such reputation of decedent and his prior use of a knife to wound or threaten.

On the night of the event defendant was at the carnival at San Jose with friends. When he came out of there together with his friends, decedent and some of decedent's friends were waiting outside near the gate. The testimony of the witnesses for the People was conflicting as to whether they were waiting to go into the grounds or to get into a fight with defendant. When defendant had moved to the sidewalk forty to fifty feet from the gate decedent left his group at the gate and went up to a certain John Lira who was standing near defendant. From that point on there is again a conflict in the evidence. Defendant testified that when decedent was near him decedent challenged him 'to finish this out;' that on defendant's refusal decedent started toward him saying that he was going to kill him; that decedent had his right hand in his trouser pocket and defendant could see part of a knife outside the pocket; that defendant was afraid of what would happen to him; that he took a step forward, threw out his arm, stabbed decedent with the knife held in his hand, withdrew the knife and ran. The defense witnesses Chavez and Naus corroborated this testimony in part. Chavez testified that he heard decedent's challenge and saw him move on defendant with his right hand in his trouser pocket and make a motion with his hand as to take out his knife; the witness did not see a knife. The witness Naus, embalmer, testified that when he performed his duties on decedent's body he found an open knife in decedent's right trouser pocket. However the witness John Lira testified for the People that decedent was standing near him, talking with him and not threatening anybody when defendant, whom the witness had not seen there before, struck decedent with his hand in the stomach; he did not see a knife in decedent's hand. Frank Gonzales, also a witness for the People, testified that he saw decedent go up to John Lira and talk to him and that he saw defendant who was standing there, all of a sudden come up and hit decedent in the stomach. The witness was too far away to hear what was spoken but he did not see decedent speak to defendant.

Appellant contends that the verdict and judgment are not supported by the evidence, which is said to show that the killing was justified on the theory of self-defense or at most to constitute manslaughter in the absence of the malice required by sections 187 and 188 of the Penal Code for a conviction of murder. We cannot so hold as a matter of law in view of the sharp conflict in the evidence. People v. Garcia, 2 Cal.2d 673, 678, 42 P.2d 1013. The sufficiency of evidence of justification on the theory of self-defense or of mitigating circumstances reducing a homicide from murder to manslaughter are questions of fact for the jury, with which the appellate courts should interfere only in exceptional cases. People v. Wells, 10 Cal.2d 610, 620 et seq., 76 P.2d 493; People v. La Fleur, 42 Cal.App.2d 50, 56, et seq., 108 P.2d 99. When it is proved that defendant assaulted decedent with a dangerous weapon in a manner endangering life and resulting in death and the jury concludes that the evidence did not create in their minds a reasonable doubt whether defendant's act may have been justified or its criminal character mitigated by the influence of passion, e. g. of terror, People v. Logan, 175 Cal. 45, 48, 49, 164 P. 1121, then no further proof of malice or of intent to kill is required to support a verdict of guilty of second degree murder. Of that crime an actual intent to kill is not a necessary component and malice is implied from such assault in the absence of justifying or mitigating circumstances. People v. Doyell, 48 Cal. 85, 95; People v. Williams, 73 Cal. 531, 534, 15 P. 97; People v. Jones, 160 Cal. 358, 370, 117 P. 176; People v. Isby, 30 Cal.2d 879, 889, 186 P.2d 405; People v. Wilson, 36 Cal.App. 589, 597, 172 P. 1116; People v. Hubbard, 64 Cal.App. 27, 34, 220 P. 315; People v. Semone, 140 Cal.App. 318, 323, 35 P.2d 379; People v. Copley, 32 Cal.App.2d 74, 76, 89 P.2d 160; People v. Ross, 34 Cal.App.2d 574, 578, 93 P.2d 1019; People v. Butterfield, 40 Cal.App.2d 725, 729, 105 P.2d 628; People v. Campanella, 46 Cal.App.2d 697, 701, 116 P.2d 633; § 1962, sub. 1, Code of Civil Procedure; § 7, sub. 4 and § 1105, Penal Code.

In view of the conflicting evidence here presented we would have to uphold any conclusion to which the jury might have come, whether of justified homicide, manslaughter or second degree murder, except for possible prejudicial defects in the proceedings leading up to the verdict.

Appellant complains of the trial judge's failure to give certain proposed instructions with respect to self-defense. Respondent contends that it is extremely doubtful whether defendant should be heard as to failure to give any instruction because when at the close of his charge to the jury the judge asked counsel: 'Gentlemen, have I overlooked any subject of instruction to this jury?' defendant's counsel replied, 'No, your Honor, thank you.' Respondent contends that therefore the instructions requested but not given were not refused in the sense of sec. 1259, Pen. Code but only not given and that any possible error in failure to give them was invited or consented to by defendant. We do not agree with this contention. Section 1127, Penal Code provides that if written charges are presented by a party the court must either give or refuse them and must indorse its decision on each. Section 1176, Penal Code mentions also the possibility of modifying the charges presented. There are no other possibilities; a charge not given in its original or in modified form is refused. Only when a party withdraws a requested charge does the necessity of a decision by the court as to giving or refusing it terminate. We are not willing to hold that the negative answer to the question of the judge whether he had overlooked any instruction is equivalent to a withdrawal of all instructions presented in writing, which had not been given. The answer does not show such intent. In itself there is nothing objectionable in the court's informal request to the parties to assist him in preventing omissions in his...

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