People v. Salaz

Upon an information charging him with the murder of Ignacio Gonzales, defendant was convicted of manslaughter, and now appeals from the judgment and from an order denying him a new trial.

Defendant, who in the trial court admitted the killing hut claimed that it was done in necessary self-defense, claims here that the evidence is insufficient to justify the verdict. The salient facts in the ease are these: Decedent lived with his wife and family in a house located about a block and a half from the scene of the tragedy, which occurred near the intersection of Gabriel and Effie Streets, in the city of Los Angeles. Some time prior to the homicide the deceased had had illicit relations with Manuela Gonzales, a married woman who had separated from her husband and who seems to have been the cause of the jealousy which led to the deadly encounter. Though the woman and decedent bore the same surname, they were not related either by consanguinity or affinity. An illegitimate child was the result of their meretricious relations. Manuela Gonzales lived with her father at 1758 Gabriel Street, about a half block north of Effie Street. Defendant worked at El Segundo, in Los Angeles County. He had a brother whose residence was about two or three blocks from the home of Manuela Gonzales.

On the afternoon of July 7, 1923, defendant left El Segundo for Los Angeles, arriving in the latter city in the evening at about forty minutes past 6 o’clock. He went to a grocery store kept by one Jose Martinez, situated one block east of the spot where the killing took place. After purchasing some bread he left the store, accompanied by the decedent. Following the exchange of a few words, the nature of which will presently be stated, the two men separated, defendant proceeding to the home of Manuela Gonzales, to whom he was engaged to be married. He remained there about thirty minutes, talking to Manuela and her father. About a month previously defendant had purchased the pistol with which the shooting was done. It had been left by him at the house of Manuela Gonzales for the purpose, so he claimed, of affording protection to the house against burglars or other possible intruders. On the evening in question, before leaving Manuela’s house, defendant procured the pistol from the woman, and some time between

Two of the bullets entered the front of the body and one entered near the anterior aspect of the left shoulder. Dr. A. F. Wagner, the county autopsy surgeon, who examined the body two days after the homicide, called as a witness for the prosecution, testified that he found three bullet wounds in the body of the decedent. These he described as follows: One bullet entered an inch above the left nipple and about three-quarters of an inch from its outer side. It passed backward and slightly inward and downward through the second rib, the inner margin of the left lung, the upper posterior of the left ventricle of the heart and through the fourth rib near its attachment to the spine, finally lodging just beneath the skin in the midline of the back, about three inches lower than the level of its entrance. Another bullet entered the outer surface of the left shoulder near the anterior aspect. It passed inward and downward in front of the bone, out in the armpit, and, entering the chest in the inner side of the armpit, it proceeded downward and through the soft tissues of the left thoracic wall, grazing the adjacent margin of the lung. It perforated the diaphragm, penetrated the inner margin of the spine and the left end of the stomach, tore a large hole in this part of the stomach, and, passing through the abdominal wall in the back near the spine, lodged just beneath the skin in the back, at a point two inches to the left of the midline and about three inches below where the first-mentioned bullet was found. Another entered just to the right of the navel, passed toward the right through the abdominal muscles and slightly downward, struck the crest of the ilium or hip bone, where it lodged, lying just beneath the skin at about the anterior superior spine of the hip bone. The witness further testified that the general course of all the bullets was downward; that the course of one was ap

Immediately after the shooting defendant proceeded one block easterly to the grocery store of Jose Martinez, arriving there about five minutes after the occurrence. Laying his pistol on the counter, he told the proprietor that he had shot a man, exhibited to the grocer a swelling on his left wrist, such as might be caused by a blow from a club or stick, and asked Martinez to call the police. The latter complied with the request. The call was received at the police station about 9 o’clock. Defendant remained in the store until the arrival of the police, fifteen minutes later, when he told the officers that he had shot Gonzales after the latter had attacked him with a club.

There are no curbs or sidewalks on either Gabriel or Effie Street. When the officers examined the surroundings where the killing occurred they found the body lying about ten or fifteen feet north of the northerly line of Effie Street. Its distance from the east line of Gabriel Street was variously estimated by the several witnesses. The body was found lying on its right side, with the right hand extended above the head. A club or stick about two feet long, three and a half inches in circumference and of hard wood was found lying parallel with the body, about two or three feet from the right hand and in line with the body. One of the officers testified that the stick, which he described as resembling a piece of hoe handle, looked as if it had dropped out of the decedent’s hand as he fell. On ,arriving at the police station the officers found on defendant’s left wrist a bruise about two inches long, an inch wide and swollen to about half an inch.

All of the witnesses but one testified that the spot where the body lay was east of the center line of Gabriel Street. One of the officers testified that it lay west of the center line of that street—that it lay about twenty feet from a fence on the west side of the street. Another officer testified that the body was found lying on the east side of the street, between the center line of Gabriel Street and the east curb line. Still another officer testified that it lay about one foot

The evidence for the prosecution consisted of the testimony of the county autopsy surgeon, who described the nature of the wounds found on the body and gave his opinion as t-o the relative positions of the parties when the shots were fired; the testimony of decedent’s wife to the effect that her husband left their home at about 7 o’clock in the evening, that she did not see him carrying any stick or club when he left, and that about an hour later she heard the fatal shots; the testimony of the grocer and the officers as to the statements made to them by the defendant, the condition of the body when found and how it lay; the testimony of an interpreter who interpreted for the officers the statements which were made to them in Spanish by the defendant; the testimony of Manuela Gonzales as to what transpired that evening when defendant called upon her just prior to the shooting; a written statement, in Spanish, which the defendant wrote and gave to the officers, and an English translation thereof. This statement, or rather the translation, is set forth infra. It tends to show that the killing was done in self-defense. Except as to the precise spot where the shooting occurred—and it unquestionably occurred where the body was found, for without doubt the decedent fell as the five shots were fired—defendant’s testimony is not materially contradicted by the testimony of any of the witnesses for the people.

Defendant was a witness on his own behalf. The case presented by his testimony is substantially as follows: After purchasing bread of Jose Martinez he left the grocery store with the intention of calling upon Manuela Gonzales. Decedent, who happened to be in the store at the time, left when defendant did. As the two walked from the building decedent asked defendant where he was going. Defendant replied that he was going to the house of Manuela Gonzales.

The English translation of the written statement which defendant gave to the police officers, and which the prosecution put in evidence as a part of its case, is as follows: “Well, I arrived from the camp and went straight into the store; I bought the bread, I met the man and greeted him and told him I was going to the house of Manuela, and I went straight to the house, arrived there and greeted her and all her family and remained there in conversation for about one-half hour. I then asked her for the gun and then she said that if she gave it to me her father would scold her. Well, but if this man wants to strike me, what have I got to face him? Well, I think he is going to beat me and I cannot face him with my finger-nails merely. I left the house, and the first thing I found was him at the corner, and he invited me to fight and I told him that I did not want to and then he came after me, endeavoring to strike me and I began to back up and when I saw he was going to strike me on the head, then I pulled the gun and began shooting, and I • discharged all of the five shots and I then went to the store to tell that I did not want to be a criminal. ’ ’

Dr. Wagner, over defendant’s strenuous objections, was permitted to testify that in his opinion, based entirely upon the result of his examination of the body and the course taken by the bullets, the man who did the shooting was in front and toward the left of the decedent. Asked by

Appellant, as his first point, urges with much earnestness that, upon all the evidence, but one conclusion can be drawn, and that is that it was only in the necessary defense of his own person that he killed Gonzales.

[1] The jury could not have found, from the evidence for the people, that the killing was done by appellant except upon the latter’s admissions, which carried, in close and immediate connection with proof of the killing, circumstances of necessary self-defense. Since, therefore, the proof on the part of the prosecution tends to show that the act of appellant was justifiable, there was, at the close of the people’s case, no presumption against the accused that he had committed an unlawful homicide. No presumption of guilt weighed against the presumption of innocence. “Upon a trial for murder, the commission of the homicide by the defendant being proved, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or ex cusable(Pen. Code, sec. 1105.)

[2] But it does not necessarily follow that appellant’s account of the killing, though uncontradicted by direct evidence, should control the jury. If there be any well-established circumstance in the case which may reasonably be regarded as incompatible with the theory of the defense that the killing was justifiable, then the jury, from a consideration of all the evidence, was warranted in finding that the act amounted to an unlawful homicide. The question therefore is: Does the record furnish evidence of any circumstance which cannot reasonably be reconciled with the theory that appellant acted in self-defense? Though a majority of the people’s witnesses agree that the spot where the body was found is east of the center line of Gabriel Street, and though one of the officers even testified that the

That grievous error was committed when Dr. Wagner was permitted to testify that he could “positively state” that the man who did the shooting was in front “and toward the left,” that “he was not immediately in front, but what we might call diagonal towards the left and in front of deceased,” is clearly demonstrable. The question whether the direction of a gunshot wound in the body of a deceased indicates the relative positions of the person firing the shot and the person receiving it is not a matter of expert or opinion evidence, and it has been held by our supreme court that it is error to allow a physician to testify to his opinion upon that question. (People v. Milner, 122 Cal. 171 [ 54 Pac. 833 ]; People v. Westlake, 62 Cal. 303 ; People v. Smith, 93 Cal. 445 [ 29 Pac. 64 ].) There are other factors besides the course of the bullets in the body which must be looked to in order to determine the relative positions of appellant and decedent when the shots were fired. Indeed, the slightest consideration of the facts of this case will suffice to show that the question of the relative positions of appellant and Gonzales during the shooting was not one which an expert or any other person could determine merely from the course of the bullets, but was essentially a question for the jury, and for the jury only, to be determined by it from a careful consideration and weighing of all the evidence. For example, if decedent, at the instant when the shot was fired which entered near the anterior aspect of his left shoulder, was striking at appellant with a piece of wood which was found at the scene of the tragedy, then it is not improbable

That the appellant’s position during the shooting in its relation to that of the decedent is an element of prime importance in the case admits of no doubt. For if, as appellant testified, he was directly in front of the deceased as he fired the shots, then the position of the parties harmonizes with appellant’s testimony that he was “backing up” or “jumping backward” when he fired the fatal shots. On the other hand, if he stood somewhat to the left of the deceased when the shots were fired that fact might lend color to the theory that appellant was advancing upon Ignacio Gonzales from a point of vantage of his own choosing and that he was the aggressor—that instead of receiving the

[4] "While it is true that section 4y2 of article VI of the constitution confers upon this court the power to weigh, to a limited extent, the entire evidence upon which a conviction was had, still “we are not substituted for the jury. We are not to determine, as an original inquiry, the question of defendant’s guilt or innocence.” We are to “decide whether, in our judgment, any error committed has led to the verdict which was reached.” (People v. O’Bryan, 165 Cal. 55 [ 130 Pac. 1042 ].) (Italics ours.) And whenever we are unable to determine whether the defendant would have been convicted had erroneously admitted testimony been withheld from the jury’s consideration, this section of the constitution cannot be applied to uphold the judgment. (People v. MacPhee, 26 Cal. App. 218 [ 146 Pac. 522 ], See, also, People v. Columbus, 49 Cal. App. 763 [ 194 Pac. 288 ], Freeman v. Adams, 63 Cal. App. 225 [ 218 Pac. 600 ], and People v. Roe, 189 Cal. 548 [ 209 Pac. 560 ].) After a most careful consideration of the entire cause, including the evidence, we are unable to determine whether the jury would or would not have convicted appellant had Dr. Wagner’s opinion as to the position of the parties been withheld from them. This being so, we do not think that the judgment can be upheld by reason of this provision of the constitution.

The judgment and the order denying a new trial are reversed.

Works, J., and Craig, J., concurred.