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District Court of Appeal, Second District, Division 1, California.


Cr. 2906.

Decided: February 15, 1937

Anna Zacsek and John S. Cooper, both of Los Angeles, for appellant. U. S. Webb, Atty. Gen., and Walter L. Bowers, Deputy Atty. Gen., for the People.

By a verdict, defendant was found guilty of the commission by him of the crime of murder in the first degree, and his punishment therefor was fixed at life imprisonment. His motion for a new trial of the action having been denied by an order of the trial court, defendant has appealed both from such order and from the judgment.

Although appellant has presented to this court several points, with respectful insistence that each of them affords a sufficient reason for an order by which the judgment herein should be reversed, it is deemed necessary to consider but one of them. It relates to the failure of the trial court to instruct the jury with reference to the crime of manslaughter and its possible application to the facts in this case.

In part, by the terms of section 192 of the Penal Code, the crime of manslaughter is defined as “the unlawful killing of a human being, without malice * * * upon a sudden quarrel or heat of passion.” And by the provisions of the next succeeding section of the Penal Code, the punishment for the commission of the crime is fixed at “imprisonment in the state prison not exceeding ten years.” The importance to defendant of having the jury instructed with reference to the crime of manslaughter becomes apparent; and if, within the evidence adduced on the trial of the action, it appears that facts were presented from which it might have been reasonably inferred that, “without malice * * * upon a sudden quarrel or heat of passion,” the murder was committed, defendant was entitled to have an instruction given to the jury that would protect his legal rights in the premises. It therefore would seem advisable that, first, the general facts that surrounded the killing be presented; and secondly, and more particularly, the essential facts upon which an inference of the commission by defendant of the crime of manslaughter might depend. To that end, it appears that:

The decedent, Jose Garcia, and the defendant, both Mexicans, had been neighbors for two or three years. They had been on friendly terms one with the other until some time in January, 1936, at which time a dispute arose between them, in the course of which Garcia objected to defendant's digging a ditch in his front yard. On March 22, 1936, at about 3 o'clock in the morning, defendant approached a group of Mexicans, including Garcia, that was standing around an automobile in the space between the houses of defendant and Garcia. Two of the men in the group were quarreling one with the other. At that time and place, and following some dispute that then occurred between defendant and Garcia, defendant drew a revolver and fired one shot into the ground; he then fired in the direction of Garcia, but missed him. A third shot inflicted a mortal wound.

On the particular question of whether or not the killing was “upon a sudden quarrel or heat of passion,” the record includes the following testimony:

The wife of defendant testified that upon the occasion of the former quarrel, Garcia applied opprobrious epithets to defendant and threatened to kill him; that thereafter the two men were not on speaking terms one with the other; that on the night of the killing, defendant took his “gun” and went from his house to the toilet; that she also was outside the house; that as defendant approached Garcia and the quarreling Mexicans, Garcia told him “to stay away from there; that if he didn't, that he would kill him”; that Garcia called defendant a “poche and a son of a bitch, which is an insult among the Mexicans,––call a man a poche”; that her husband was not drunk; that at the time of the ditch incident, each man cursed the other; that just before the shooting, both defendant and Garcia were cursing.

Defendant's brother testified that at the time in question he heard Garcia say that defendant was a “miserable poche” and that he was going to kill him. Another witness testified that when the two men were quarreling, Garcia “pushed” one of them; to which action defendant protested; whereupon Garcia told defendant “not to butt in. * * * he said it wasn't any of his (defendant's) business.”

Defendant testified that after the episode of the ditch he was afraid of Garcia and bought the “gun”; that after that he saw on the person of Garcia what he believed was a dagger; that on the night of the killing he went over to the group that was talking; that he joined the argument because he thought his brother was in it; that one Vargas, another, Enriquez, and Garcia, were drunk; that “when Mr. Garcia saw me he sort of pushed Pipas (Enriquez) to one side. He told me that I was a poche, that I was a son of a bitch; to get away from there; if I didn't he would kill me. * * * I didn't do anything but immediately he took his weapon and he came on top of me.” Other testimony that was given by various witnesses tended to establish the fact that the murder was committed by defendant in self–defense.

Near the close of the trial of the action, the judge who presided thereat inquired of respective counsel regarding the time when each would present his proposed instructions to the jury for the consideration of the trial court. At that time the attorney who then represented defendant inquired, “May I ask if it is necessary to prepare general instructions; or does your Honor give those?” to which question the judge responded, “Yes. * * *” No instruction on the subject of manslaughter was offered by defendant. However, included within a general instruction that was offered by the People was the following:

“Manslaughter is the unlawful killing of a human being without malice. It is of two kinds.

“1. Voluntary upon a sudden quarrel or heat of passion. * * *”

The court struck it out; nor was any other instruction of similar import given by the court to the jury.

In the parallel case of People v. Best, 13 Cal.App.(2d) 606, 57 P.(2d) 168, 170, the question here presented is well considered Therein, among other pertinent observations, it was declared that: “It is important to note that the district attorney submitted an instruction which did define manslaughter. It was disallowed by the trial judge. It cannot be said that appellant is precluded from complaining that a proper instruction defining manslaughter was not given because such an instruction was not offered by him. * * * Also, appellant was privileged to rely upon the instruction presented by the district attorney. It would have been an idle act for him to have submitted an instruction in substance the same as that offered by the prosecution.”

As in substance and effect has been judicially determined by the appellate courts of this state in each of several cases––on the trial of a criminal action it is the bounden duty of the trial court, of its own motion, to give to the jury pertinent instructions by which the jury may be correctly informed with respect to the essential legal principles that are applicable to the evidence that has been adduced; and that failing in that regard, the fact that proper instructions have not been requested by either party to the action will not cure such error. People v. Heddens, 12 Cal.App.(2d) 245, 55 P.(2d) 230; People v. Scofield, 203 Cal. 703, 265 P. 914; People v. Bill, 140 Cal.App. 389, 35 P. (2d) 645; People v. Peck, 43 Cal.App. 638, 185 P. 881; People v. Wagner, 65 Cal. App. 704, 719, 225 P. 464; People v. Best, 13 Cal.App.(2d) 606, 57 P.(2d) 168.

From a consideration of the evidence to which attention hereinbefore has been directed, and without reference to other evidence which possibly might have detracted from the force and effect of the former, it would seem clear that the jury would have been justified in returning a verdict of “guilty of manslaughter.”

As hereinbefore has been indicated, it becomes unnecessary to devote attention to other important specifications of error that are presented by appellant to this court for its consideration.

The judgment and the order are reversed.

HOUSER, Presiding Justice.

We concur: YORK, J.; DORAN, J.

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