PEOPLE v. MURGUIA (1935)

The defendant was convicted of murder in the second degree in the superior court of Merced county, upon an information charging him with having, on or about the 13th day of October, 1934, willfully, unlawfully, feloniously, and with malice aforethought murdered one Aristideo Martinez. From the judgment following the verdict of the jury finding the defendant guilty of murder in the second degree, and from the order of the court denying his motion for a new trial, the defendant appeals.

The defendant and the deceased were of Mexican extraction, and were living together in a cabin on a certain cotton ranch known as the Hamburg ranch near Los Banos, in Merced county, and were employed as cotton pickers. The defendant and the deceased had been acquainted for a period of about six weeks, and for three weeks preceding the 13th day of October, 1934, had been occupying the same cabin.

The record shows that the defendant and the deceased went to the town of Los Banos on the afternoon of October 13, 1934, and later in the evening returned to the Hamburg ranch. It does not appear that the deceased and the defendant were together in Los Banos or that they returned to the ranch together. At about 7 or 8 o'clock on the evening of October 13, 1934, the defendant, the deceased, and a few other Mexicans were engaged in playing cards at one of the cabins located on the cotton ranch. During the course of the game an argument took place between the deceased and the defendant, during which time the deceased addressed some profane language to the defendant, following which the deceased asked the defendant to go outside. In two or three minutes thereafter the deceased and the defendant went outside. It does not appear that any discussion or argument took place between the defendant and the deceased when they got outside. The testimony is to the effect that the deceased followed the defendant, having a knife in one of his hands; that the defendant told the deceased not to come any closer; the deceased kept following the defendant, whereupon the defendant fired two shots into the ground, and then, the deceased not heeding this warning, the defendant fired a third shot into the body of the deceased, the shot entering just above the left temple. The death of Martinez immediately followed. After the shooting the defendant walked away a distance of 60 or 70 feet, when another Mexican who was at the ranch brought the defendant back to the body of the deceased.

There is some question raised as to whether the deceased did or did not have a knife in one of his hands, but the preponderance of the testimony is to the effect that the deceased was carrying a knife. Only one witness saw the actual shooting. This testimony is to the effect that the deceased had something in one of his hands which he took to be a knife, but apparently he was not certain. The testimony does show that a knife was lying by the left hand of the deceased immediately after the shooting.

Upon this appeal it is urged that the testimony does not support the verdict, also, that the court erred in giving certain instructions to the jury; and likewise erred in the refusal to give an instruction to the jury that the defendant should be found guilty either of murder in the first degree or should be acquitted.

Reversing the order followed by counsel in their arguments we will consider first the instructions and then the testimony of the deceased as to what it shows, and the verdict that it supports.

The objection that the court erred in refusing to instruct the jury that it should find the defendant guilty of murder in the first degree, or should find him not guilty, is clearly answered in the case of People v. Hudson, 92 Cal. App. 593, 268 P. 687, 688. The court there was considering the question of robbery. The jury found a verdict of robbery in the second degree. In passing upon a like question tendered for our consideration, the court there said: “Appellant has no substantial ground of complaint that he was convicted of second degree robbery upon evidence which would have justified the jury in finding him guilty of the more serious offense of first degree robbery. People v. Muhlner, 115 Cal. 303, 47 P. 128; People v. Tugwell, 32 Cal. App. 520, 529, 163 P. 508.” The cases of People v. DiDonato, 90 Cal. App. 366, 265 P. 978, and People v. Watts, 198 Cal. 776, 247 P. 884, are readily distinguishable from the circumstances presented here. To hold that it is not error for the trial court to refuse to instruct a jury as to a lesser offense or degree of an offense included within the crime charged, where the offense is of such a nature as to warrant a verdict of guilty only of the higher offense, or a verdict of acquittal, is not to hold that it is error on the part of the court to instruct the jury as to the several degrees included within an indictment or information charging the defendant with the crime of murder. The testimony which we will hereinafter set forth, we think amply supports the verdict finding the defendant guilty of murder in the second degree.

Error is alleged on the part of the court in instructing the jury on the question of flight. The testimony is to the effect that after the defendant had shot the deceased, he walked away some 60 or 70 feet, when another individual spoke to the defendant and the two returned to where the body of the deceased was lying. This person spoke to the defendant and told him to come back and see what he had done. The evidence does not show that the defendant was hurrying away or that he intended flight, but irrespective of whether there was sufficient testimony in the record to justify an instruction on the subject of flight is immaterial, as the verdict returned in this case is the only one justified by the testimony.

The court also instructed the jury as follows:

“You are instructed that section 3 of the act of the legislature of the state of California entitled, ‘An Act to control and regulate the possession, sale, and use of pistols, revolvers and other firearms capable of being concealed upon the person, etc.’, approved June 13, 1923, Statutes of 1923, page 695, as amended, reads in part as follows: ‘In the trial of a person charged with committing or attempting to commit a felony against the person of another, while armed with any of the weapons mentioned in Section One hereof, or while armed with any pistol, revolver or other firearm capable of being concealed upon the person, without having a license or permit to carry such firearm as hereinafter provided, the fact that he was so armed shall be prima facie evidence of his intent to commit such felony.’

“Therefore, if you find from the evidence that the defendant was at the time of the killing of the said Aristeo (Aristideo) Martinez armed with a pistol or revolver and did not have a license to carry such pistol or revolver, then, the fact that he was so armed and did not have such license is prima facie evidence that he intended to kill and murder the said Aristeo (Aristideo) Martinez.”

The appellant contends that this instruction violates the provisions of section 19 of article 6 of the Constitution, which specifies that judges shall not charge juries with respect to matters of fact, but may state the testimony and declare the law. The argument is also advanced that the instruction as given by the court eliminated entirely the necessity of showing deliberation, premeditation, malice, or intent; that under such an instruction all that it would be necessary for a prosecution to show would be that some offense had been committed, and that the one charged with the offense was carrying a gun without a license.

We agree with the contentions of the appellant that the instruction of the court, to the effect that he was carrying a revolver without a license was prima facie evidence that he intended to kill and murder Aristideo Martinez, constituted error. We do not need to follow the argument of the respondent that the Legislature has power to provide rules of evidence to the effect that certain acts are prima facie evidence of certain other acts, for the simple reason that the paragraph found in section 3 of the Act of the Legislature, approved June 13, 1923, Statutes 1923, pp. 695, 697, and the subject therein referred to, is not mentioned in the title of the act, and is not germane to anything mentioned in the title of the act, as it relates to a separate and distinct offense from that of carrying concealed weapons, and therefore is violative of section 24 of article 4 of the Constitution.

The paragraph quoted by the trial court in this instruction stands out alone and is no part and parcel of any other portion of the act, and dealing with an exclusive subject not mentioned in, and not germane to anything in, the title, renders it repugnant to the section of the Constitution which we have mentioned. The instruction as given by the court we think clearly erroneous, as contended for by the appellant. This, however, does not necessitate a reversal, as under the testimony given by the defendant himself, there has been no miscarriage of justice.

After giving some preliminary testimony as to his acquaintance with the deceased, where they were at work, where they lived, where they had been on the afternoon of October 13, 1934, their meeting at one of the cabins in the evening some time between 7 and 8 o'clock, and engaging in the playing of cards, the defendant testified as follows:

“Q. At that time was Martinez drunk or sober? A. I cannot say, he was playing cards all right.

“Q. Did you have a discussion or argument at that time or any time during the card game with Martinez? A. No.

“Q. You and Martinez sometime that night had a fight, did you not? A. Yes, sir.

“Q. What caused the fight? A. When we were sitting playing cards and I had a pair of fives and he had a pair of eights, and so I bid and I put down about thirty cents and then he cursed me.

“Q. What kind of a game were you playing? A. Poker.

“Q. Stud poker? A. Yes, sir.

“Q. You say he cursed you. What did he call you? A. He called me a son-of-a-bitch.

“Q. And what did you say? A. I told him not to say that, that it was not right for him to say that.

“Q. What did he answer to that? A. He asked me to go out.

“Q. Did you go outside? A. Not right away, no, sir.

“Q. Did you afterwards go outside? A. Yes.

“Q. Tell the court and jury what happened when you went outside with Martinez? A. When I went out I went ahead and he followed me and I seen he had a knife in his hand.

“Q. Tell me what he said there? A. I was ahead of Martinez and I turned around and seen the knife in his hand.

“Q. You were ahead of Martinez? A. Yes. * * *

“Q. You were both walking out and you saw a knife? A. We were both walking out and I was ahead of Martinez and I turned around and seen a knife.

“Q. How did you turn? (The witness indicates.) A. And Martinez followed me.

“Q. Martinez followed you? A. Yes, sir, and I told Martinez not to get close to me.

“Q. You told him not to get close to you? A. Yes.

“Q. And what did he do? A. He kept coming towards me and then I took my gun out and shot to the ground.

“Q. Did you say anything to him? A. Nothing.

“Q. Then what happened? A. Then he came towards me with the knife and then is when I shot him.

“Q. That is when he was coming towards you with the knife? A. Yes, sir.”

The cross-examination of the defendant did not change the testimony given in chief in any particular, as it went mostly to show that the defendant had made a somewhat different statement immediately after the commission of the homicide. The testimony of the defendant, as we have set forth, shows that he and the deceased went outside the cabin, where they had been engaged in playing cards, for the purpose of settling the dispute or controversy existing between them, and brings the case clearly within one of the instructions given by the court to the jury, as follows: “You are instructed that self-defense is not available as a plea to a defendant who has sought a quarrel with the design to force a deadly issue, and thus, through his fraud, contrivance or fault, to create a real or apparent necessity for killing.”

It is evident that the deceased and the defendant did not go outside of the cabin simply for the purpose of settling the dispute between them by any form of argument or further discussion. Nor is there any showing that the defendant employed or sought to employ all reasonable means within his power, consistent with safety, to avoid an encounter with the deceased, or to avert the necessity of an encounter, or the necessity of killing the deceased.

It does not appear from the testimony that the defendant was in fear that he was about to receive great bodily injury, or that he acted under any such influence of fear, or that he acted under any well-founded or other belief that it was necessary for him to kill the deceased in order to avoid bodily injury to himself. It does not appear that there was any overt act on the part of the deceased, or that he had made any demonstration indicating an intent to assault the defendant and use the knife, if it be conceded that the deceased had a knife in his left hand.

Here, again, an instruction given by the court correctly stated the law, to wit: “The court further instructs the jury that to justify the killing of another in self-defense, it must appear to the slayer, as a reasonable person, that the danger, if any, was so urgent and pressing that in order to save his own life or to prevent his receiving great bodily harm, the killing of the other was absolutely necessary. And it must appear that the person killed was the assailant, or, if not the assailant, that the slayer had really and in good faith endeavored to decline further trouble before the fatal shot was fired.” And further: “Whenever an assault is brought upon a person by his own procurement, or under an appearance of hostility which he himself creates, with a view of having his adversary act upon it, and he so acts and is killed, the plea of self-defense under such circumstances is unavailing.”

The testimony of the defendant as to what occurred in the cabin where the deceased and the defendant were playing cards is practically the same as that given by other occupants of the cabin, all of the testimony of the occupants of the cabin being to the effect that the deceased and the defendant were playing cards; that a controversy arose between them; that the deceased invited the defendant to go outside after hostile words had been used; and that within a minute or two after the deceased and the defendant went outside the shooting took place. Whatever peril appeared to the defendant after stepping outside of the cabin is thus shown to be partly of his own procurement. He and the deceased had both voluntarily gone outside, and, as further appears, the defendant accepted the invitation of the deceased to go outside, and the conclusion necessarily follows, and the jury could not escape such conclusion, that they went outside for the purpose of settling the dispute other than by means of a simple discussion of the merits of the controversy.

The testimony of the defendant fully supporting the verdict of the jury finding him guilty of murder in the second degree under the provisions of section 41/212 of article 6 of the Constitution, it follows that the errors of the court did not result in a miscarriage of justice.

The judgment and order are affirmed.

Mr. Justice PLUMMER delivered the opinion of the court.

We concur: PULLEN, P. J.; THOMPSON, J.