People v. Sica

On October 23, 1924, Norval M. Hyde, twenty-one years of age, was killed by the accidental discharge of a shotgun in the hands of the defendant Angelo Sica, seventeen years of age, while the latter was pointing the gun, in play, at Hyde. Sica was informed against by the district attorney for the crime of manslaughter, and upon trial was convicted, the jury recommending leniency. After denying a plea for probation, the trial court sentenced Sica to imprisonment in the state prison at San Quentin. Sica has appealed, and for a reversal of judgment urges two principal grounds—first, insufficiency of evidence, and, secondly, errors of the trial court in the matter of giving instructions to the jury, which he claims deprived him of a fair trial.

The circumstances leading up to and attending the death of Hyde, as shown by the evidence, were as follows: Hyde and a young man named Far linger were employed on certain premises near Fresno operated as a gun club, and lived in a tent on the property. Hyde and Sica were friends. About a week previous to the fatal shooting Sica had called on Hyde at the gun club’s property and was invited by Hyde to visit him again. On the day of the accident Sica and three boy companions went for a ride in an automobile belonging to one of the boys and, being in the vicinity of the gun club, went over to see Hyde, arriving at the gun club about 5 o ’clock in the afternoon. As they drove in, Farlinger was working in a ditch near by and Hyde rode up on horseback from the field. After an exchange of greetings all around, Hyde and Sica shaking hands in a friendly manner, the boys proceeded to chop an old log lying on the ground into firewood, and then engaged in target practice with a revolver which one of Sica’s companions had brought with him. During the target practice Sica went into the

The contention of appellant that the evidence is insufficient to sustain a conviction of manslaughter is based in part upon the proposition that the gun was accidentally and not wilfully discharged, and that consequently appellant was guilty of no crime. It is argued in support thereof that the evidence, taken as a whole, shows that the death of Hyde was the result of misadventure; that it was the case of a number of boys playing with firearms, and that unfortunately one of the firearms, being at the time in the hands of the appellant, was accidentally discharged; that the firing of the gun was not a voluntary act on his part at all, and that therefore appellant was not criminally responsible. The contention cannot be sustained.

[1] 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 felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection (Pen. Code, sec. 192); and it has been held in this state, as in others, that where the death of a human being results from playing or skylarking with or the reckless handling of firearms, it is involuntary manslaughter, the killing being the result of the commission of a lawful act which might produce death, without due caution and circumspection. (People v. Searle, 33 Cal. App. 228 [ 164 Pac. 819 ].) Upon this branch of the case we believe the jury was properly instructed. (People v. Wilson, 193 Cal. 512 [ 226 Pac. 5 ].)

[2] The cause was submitted to the jury, however, not on the one theory of involuntary manslaughter, but, under instructions of the court, upon the additional theory that the death of Hyde was brought about by appellant while the latter was engaged in the commission of an unlawful act not amounting to a felony; and appellant contends that the giving of instructions upon said second theory constituted

When the prosecution rested its case, counsel for appellant, in the absence of the jury, moved that the court advise the jury to acquit. At the conclusion of the argument on the motion the court stated: “Well, another phase of it, gentlemen, I think we have a statute there to the effect that any one who 'exhibits a deadly weapon in a rude and threatening manner in the presence of two or more witnesses is guilty of a misdemeanor,” to which counsel for the prosecution responded, “Section 417 of the Penal Code”; and after some further discussion as to the meaning of the words “rude” and “threatening,” the court denied the motion. Appellant offered no evidence, but upon this branch, of the case proposed an instruction, which, after setting forth the code definition of manslaughter, read: “You are instructed that there is no evidence in this case which justifies the conviction of the defendant of voluntary manslaughter, nor is there aivy evidence in the case which justifies his conviction of involuntary manslaughter because of the commission of an unlatuful act not amounting to felony. It is for you to determine from all the evidence in the case whether the prosecution has proved beyond a reasonable doubt and to a moral certainty that the death of Nor val M. Hyde was caused by the defendant in the commission of a lawful act which might produce death in an unlawful manner, or without due caution and circumspection. Unless you are satisfied beyond a reasonable doubt that such proof has been made you must acquit the defendant.” (Italics ours.) The trial court gave to the jury that part of the proposed instruction embodying the code definition of manslaughter, but refused to give those portions just quoted.

In lieu of instructing the jury as requested in the italicized portion of said proposed instruction, the court gave the following instructions: “You are further instructed that every person who, not in necessary self-defense, in the presence of two or more persons, draws or exhibits any deadly weapon in a rude; angry, and threatening manner, or who, in any manner, unlawfully used the same, in any fight or quarrel, is guilty of a misdemeanor.” (Pen. Code, sec. 417.) This instruction was followed by one to the effect that if the jury was satisfied beyond a reasonable doubt that

[3] It is doubtless true that a defendant may be found guilty of manslaughter on two different theories {People v. Hubbard, 64 Cal. App. 27 [ 220 Pac. 315 ]), and a jury may be instructed on as many theories as are logically deducible from the testimony (People v. Byrnes, 30 Cal. 206 ; People v. Quimby, 6 Cal. App. 482 [ 192 Pac. 493 ]); but there is no evidence whatever in the instant case of a fight or quarrel, nor is there any proof from which the inference might be reasonably and logically deduced that said weapon was exhibited in an “angry” manner, conceding that the manner of its use was both rude and threatening. Anger is defined to mean a strong passion or emotion or displeasure or antagonism excited by real or supposed injuries or insults to one’s self or others by the intent to do such injury, resentment, wrath, rage, fury, passion, ire, gall, eholer, indignation, spleen. “Anger” and “passion” are interchangeable, and mean practically the same thing. (Morris v. Territory, 1 Okl. Cr. 617 [ 99 Pac. 760 , 768, 101 Pac. 111 ], quoting Webster’s Dictionary.) Anger is not ordinarily classed as mental suffering. The Standard Dictionary defines it as “violent and vindictive passion or emotion caused by injury or insult real or imagined.” (Ft. Worth & R. G. Ry. Co. v. Jones, 38 Tex. Civ. App. 129 [ 85 S. W. 37 ].) The testimony given by all of the witnesses to the shooting was that Hyde and Sica were laughing and joking up to the time the shot was fired; and all of the circumstances attending the tragedy prove beyond question that preceding it the boys were in an amiable and friendly mood. The word “angry” as used in said section 417 is not synonymous in its meaning with either of the other two adjectives employed therein and the three being used conjunctively, the distinctive elements represented by the three words must be present before

In the instant case it cannot be determined upon which of the two theories the jury founded its verdict. If founded upon the theory of the inapplicable instruction, the verdict is not supported by the evidence, and in that event appellant

The judgment and order appealed from are therefore reversed.

Tyler, P. J., and Cashin, J., concurred.