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District Court of Appeal, Second District, Division 2, California.


Cr. 3814.

Decided: October 18, 1944

Marshall Denton, Jr., of Los Angeles, for appellant. Robert W. Kenny, Atty. Gen., and Frank Richards, Deputy Atty. Gen., for respondent.

Defendant was charged with the murder of Raymon Boyd. He has appealed from a judgment of conviction of murder in the first degree and from an order denying his motion for a new trial. He now contends that he was justified in shooting Boyd and that in any event the evidence is not sufficient to support a conviction of any crime greater than manslaughter or murder in the second degree.

At the time of the commission of the offense defendant and his wife were living in the rear house at No. 3715 1/2 Wall Street in the city of Los Angeles and had been living at that place for about two years. Raymon Boyd lived with his wife on the north side of a double house in the front part of the same lot. The Boyds moved into the double house about five months previous to the date of the crime. Several relatives were living with defendant's family. Defendant had been working as a cook on a railroad and had been coming home infrequently, but about nine days before November 18, 1943, he began to work for the Goodyear Company and usually went to work shortly after 6 o'clock in the morning. The Boyds were not acquainted with the people who were living in the rear house.

Shortly after 6 o'clock in the morning of November 18, 1943, defendant left his home and walked along the cement walkway between his home and the home of the Boyds. As he passed someone asked him what he was doing there and why he was looking in the bathroom window. He replied that he lived in the rear house and denied that he was looking in the window. At that time it was too dark to see the man inside the house, who told him to wait so that it could be determined if he did in fact live on the premises. Boyd went to the bedroom and told his wife, who was still in bed, of the incident. He then put on his work clothes and went out the front door. Defendant waited a short time, then went to his own house, procured some cigarettes, took a revolver from a chest of drawers and put it in his belt. He then walked to the front of the premises where he encountered Boyd.

Mrs. Boyd testified that she put on her shoes and went to the front porch but defendant and her husband had left and she went through the house to the back porch. She then saw several people standing around the house in the rear. Her husband was talking and demonstrating to those people, showing them what defendant was doing when he spoke to him through the bathroom window. Defendant's wife then said to Boyd: “You must be wrong; you must have the wrong man; this is my husband and he lives here.” Boyd then said, “O. K. forget it,” and walked away. In walking away toward his home he passed defendant, who had both hands in his pockets. Defendant walked up behind Boyd and said: “I didn't like the way you talked to me this morning and I could have shot you.” Boyd turned slightly toward defendant and said: “Why don't you shoot? Who is stopping you?” Defendant took out his gun, and Mrs. Boyd said to him: “Oh, Mister, please don't shoot him.” Defendant then fired point–blank at Boyd. The bullet spun Boyd around and he fell on his back.

At the police station defendant told the officers that Boyd had used profane language toward him; that he was not afraid of Boyd; and that he had not seen a weapon in Boyd's hand; that he was angry at the way Boyd had spoken to him through the bathroom window. He also stated that Boyd had attempted to strike him but that he had ducked out of the way; that Boyd had had his hands in his pockets.

Witnesses on behalf of the defense testified that Boyd had called defendant vile names and had “shoved” him; that Boyd said that this was not the first time defendant had peeped in his window; that he “pushed him on the shoulder” when defendant tried to go by; that Boyd had told defendant not to be in such a hurry and “shoved his hand in his pocket and make a couple of steps forward to him.” Defendant testified that just before he fired Boyd had shoved him and had “swung as if he had something in his hand which he had in his pocket”; that when he fired the shot, Boyd was about six feet from him.

It was the function of the jury to determine defendant's intent in shooting Boyd and to fix the degree of the crime. For the purposes of this appeal it must be assumed that the jury believed the testimony of Mrs. Boyd and the other witnesses presented by the prosecution. The jury could reasonably infer from the character of the weapon used and from the acts and conduct of defendant that he had a deliberate purpose to kill Boyd. When he returned to his house to get cigarettes he purposely armed himself with a lethal weapon and later told the police officers that he was not afraid of Boyd but had become angry at the way Boyd had talked to him through the bathroom window. He admitted that he was six feet away from Boyd at the time he fired the shot. Mrs. Boyd testified that there was no physical encounter between the two men but merely an exchange of words. The jury could reasonably have found that defendant, after becoming angry with Boyd because of the charge which had been made, had armed himself for the purpose of killing Boyd. The jury could also have reasonably found that there was no physical encounter between Boyd and defendant and that defendant had not been threatened with bodily injury. The implied findings of the jury are supported by the evidence and may not be disturbed by a reviewing court.

The court read to the jury a lengthy instruction in which the crimes of murder and manslaughter were defined and clearly explained to the jury. Included in this instruction was the following statement: “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. 2. Involuntary––in the commission of an unlawful act not amounting to a felony, or in the commission of a lawful act which might produce death in an unlawful manner, or without due caution and circumspection.”

Defendant asserts that he was injured by the giving of that part of the instruction in which voluntary manslaughter was defined. He claims that he had offered evidence that he acted in self defense, a “lawful act,” and was not bound to use due caution and circumspection. In the present situation the question whether defendant acted with due caution and circumspection had no bearing upon any of the issues which the jury was called upon to decide. However, it is clear that defendant was not prejudiced by the giving of the instruction. The jury was fully and fairly instructed on the law of self defense. It was more to defendant's advantage than otherwise to include in the instructions a definition of involuntary manslaughter.

The judgment and the order denying his motion for a new trial are affirmed.

W. J. WOOD, Justice.

MOORE, P. J., and McCOMB, J., concur.