People v. Flores

This is an appeal from a judgment after conviction of the crime of murder, and from orders • denying appellant’s motions in arrest of judgment and for a new trial.

The evidence, in our opinion, conclusively shows that on the 11th day of October, 1935, the appellant shot and killed Louis Mock. The evidence indicates that on the date of the homicide, and for some months prior thereto, the appellant was occupying a room in the home of the deceased in Santa Barbara County; that appellant and deceased had been acquainted for several years, and prior to October 11, 1935, had worked together as general ranch hands. On the evening preceding the killing it appears that the deceased,- his wife, appellant, Mrs. Frances Ontiveros, and the latter’s daughter, Mrs. Amparito Ontiveros, relatives of Mrs. Mock, were visiting in the home of deceased, along with one John Franzini. During the course of the evening Mr. Franzini and appellant left the house, and returned a short time later with two half-gallon jugs of wine. Some drinks of wine were served, but no one appears to have become intoxicated, nor is there any evidence of any quarrel or acrimonious discussion among those present. The record indicates that the deceased and his wife retired before the guests, and that about 11 o’clock Mr. Franzini left, the appellant retired to his room, and Mrs. Ontiveros and her daughter went to bed.

The following morning, October 11th, about 8 o ’clock, Mrs. Mock went to the kitchen to prepare breakfast, and at that time saw appellant, who came into the kitchen and got a jug of claret wine. About that time Juan Grijalva, of Santa Ynez, and a friend of appellant, came into the kitchen of the Mock home to see appellant. The latter served Grijalva two glasses of wine, and he himself drank a like amount. At that time Mrs. Mock left Grijalva and appellant alone in the kitchen. The witness Grijalva testified that appellant asked him if he had a gun, to which Grijalva replied in the negative. Shortly thereafter Grijalva left the kitchen and returned to his home. In a short while Mrs. Mock returned to the kitchen and continued with the preparation of breakfast. The deceased, Mrs. Amparito Ontiveros, Mrs. Frances

What happened between appellant and deceased after the latter followed the former out of the house was observed by the witness Juan Grijalva, the friend of appellant, who at the time was standing near the front porch of Calderon’s house. He testified that he saw deceased and appellant come out of the former’s house, walking side by side; that they were walking out towards the gate; that they walked out to about the center of the grapevine arbor when the witness heard two shots; that the two men separated, the deceased going towards the porch, while appellant stood there a moment with an object in his right hand. The witness was unable to identify the object, and testified that appellant had his coat over his left shoulder. This witness further testified that immediately following the shooting appellant exclaimed, “You will follow me!” This witness was only about 85 feet from the men when they walked out of the house, and was very definite in his statement that they were not fighting or wrestling, but were walking side by side towards the gate leading to the street. The evidence further indicates that shortly after the homicide appellant came into the lunchroom of E. C. Craig on the main street of Santa Ynez, and obtained from Craig a pint bottle of Old Quaker whiskey. Craig testified that at that time appellant was sober. Appellant was next observed at the house of Mrs. Virginia Ontiveros, mother of the estranged husband of Mrs. Amp arito Ontiveros, in the northwesterly part of Santa Ynez. It was to this home that appellant had gone the night before and at which house he had been denied admittance. Mrs. Ontiveros stated she heard appellant say that he had shot Mr. Mock with Ms own gun when the latter tried to kill him. This witness also secured the gun from appellant which he had taken from the bedroom of Mr. and Mrs. Mock. Upon

Appellant assails the judgment on the ground that the evidence is insufficient to sustain the verdict of murder in the first degree, but in our opinion, a mere reading of the foregoing epitome of the testimony, made up from a reading by us of all the evidence adduced at the trial, at once indicates that while a conflict appears as between the testimony of the several prosecution witnesses and the happening as narrated by appellant, if the jury believed the testimony of the People’s witnesses, as they evidently did and had a right to do, such testimony was of sufficient substantiality to support the verdict rendered. Reviewing judges are obviously in no

In addition thereto, we must remember that a motion for a new trial was made in this case and denied by the trial court. The judge of that tribunal had the witnesses before him, was fortified with an opportunity to observe their manner and demeanor on the stand, and apparent candor or lack of the same, and the reasonableness or unreasonableness of the stories they told. In denying the motion for a new trial, the lower court concurred in the action of the jury, which rejected defendant's version of the fatal encounter and believed the testimony adduced showing that the killing was wilful, unlawful, felonious and with malice aforethought. It might also here be observed that the jury’s action in disregarding defendant’s evidence finds some support and corroboration in the statements of the defendant, as above set forth, made at the time of and subsequent to his arrest, together with the improbability of appellant’s claim that the gun was discharged both times during the scuffle, when viewed in the light of the testimony of the ballistics expert, Spencer B. Moxley, to whom was delivered a section of the tissue surrounding the wound in the left breast of the deceased, which tissue was removed from the body, and from a chemical and microscopic examination of which the expert testified it was powder-burned and torn from the pressure of the gases

Appellant next contends that the evidence shows that he was intoxicated, and that becouse of such intoxication the crime, if any was committed, could be no greater than manslaughter. Voluntary intoxication never becomes available as a defense for crime, and is only material when the actual existence of any particular purpose, motive or intent is a necessary element to constitute any particular species or degree of crime, in which event the jury may take into consideration the fact that the accused was intoxicated at the time, in determining the purpose, motive or intent with which he committed the act. (Pen. Code, sec. 22; People v. Clifton, 186 Cal. 143 [ 198 Pac. 1065 ]; People v. Burkhart, 211 Cal. 726 [ 297 Pac. 11 ]; People v. Keyes, 178 Cal. 794 [ 175 Pac. 6 ]; People v. Belencia, 21 Cal. 544 .) While there is in the record evidence to the effect that appellant was under the influence of. liquor some time after the homicide, nevertheless, the jury was warranted in concluding that such intoxication was the result of the consumption by appellant of

“Q. You were sober when you were over there at the house, weren’t you?

“A. Yes, I was sober.

“Q. You knew everything that went on there?

“A. Yes.

“Q. It is very clear in your mind?

“A. Yes.”

Also, in this regard, the jury was fully and correctly instructed on the question of intoxication.

Appellant next contends that the court erred in the giving and refusing of certain instructions. We have examined and scrutinized the instructions called to our attention, and have considered the charge to the jury as a whole; and we are satisfied that no prejudicial error has been committed. (Art. VI, sec. 4½, Const.; People v. Bealoba, 17 Cal. 389 , 395; People v. Fleming, 218 Cal. 300 , 310 [ 23 Pac. (2d) 28 ]; People v. Hatch, 163 Cal. 368 [ 125 Pac. 907 ] ; People v. Ruef, 14 Cal. App. 576 , 613 [ 114 Pac. 48 , 54]; People v. Buckley, 143 Cal. 375 [ 77 Pac. 169 ]; People v. Northcott, 209 Cal. 639 [ 289 Pac. 634 , 70 A. L. R. 806 ] ; People v. Kelley, 208 Cal. 387 [ 281 Pac. 609 ] ; 8 Cal. Jur. 314; People v. Rowland, 207 Cal. 312 [ 277 Pac. 1041 ].)

Appellant complains of the court’s action in rereading certain instructions. In this connection, the record discloses that the jury brought in a verdict as follows: “We, the jury in the above-entitled cause, find the defendant, Frank Flores, guilty of murder in the first degree, and fix his punishment at confinement in the state prison for life, without parole.’’ The surplus words, “without parole”, were added to the verdict by the jury, and were in the handwriting of the foreman, and it is apparent from a reading of the transcript that the court reread the instructions with reference to the forms of verdict for the sole purpose of clarifying the jury’s duty with respect to the form of any verdict, so that such verdict as they might bring in would not contain the additional words, “without parole”. We find no merit in appellant’s contention that the rereading of these instructions manifestly impressed the jury with the guilt of the defendant, because the jury, at the time the court reread

Appellant next contends that the court erred in refusing to grant his motion for a new trial, and as a ground therefor asserts that appellant was not familiar with the use of the English language and should have been given the opportunity of presenting his testimony in the Spanish language through an interpreter. We have no hesitancy in saying that the clarity, coherency, understandability and intelligence of appellant’s answers to questions propounded to him convinces us that he possessed an adequate understanding of the English language and was conscious of the meaning and import of questions addressed to him and of the effect of his answers given thereto. It might also be observed that the record indicates that appellant was born in the county of Santa Barbara in this state, and has lived in a community of English-speaking people practically all of his 54 years of life. Also, counsel for appellant made no request for an interpreter at any time during the trial. This question cannot be raised for the first time on appeal.

Appellant’s next complaint deals with the challenge to the jury panel made at the time the case was called for trial, and with the affidavit concerning the jury panel filed at the time of his motion for a new trial. The challenge to the panel included as grounds therefor the allegation that the selection and returning of said jurors was in violation of the provisions of sections 204 to 211 of the Code of Civil Procedure, and that the drawing of the jury was in violation of the provisions of sections 214 to 220, inclusive, of the Code of Civil Procedure, and that the “summoning” of said jurors was in violation of the provisions of sections 225 to 228, inclusive, of the Code of Civil Procedure. It also included allegations that the selection of the panel and jurors was “made and done in a material departure from the forms prescribed in respect to drawing and return of jurors”; and “that there was an intentional omission of the sheriff to

At the time of the hearing of the motion for a new trial, counsel for appellant filed an affidavit based upon a printed article ivhich appeared in a publication known as “Town Talk”, printed in the city of Santa Barbara, in which publication charges of irregularity in the impanelment and length of service of trial jurors in Santa Barbara County were made. At the time of the presentation of this affidavit there was no offer of proof, nor was there any effort made to present to the court anything that would substantiate the statements contained in the newspaper clipping; and further, appellant exercised no challenge to the individual jurors on the ground that they were precluded from serving by reason of the provisions of sections 199 and 200 of the Code of Civil Procedure. Having failed to interpose any such challenge to the individual jurors, if in fact there were any grounds for such a challenge, appellant cannot raise the question for the first time on appeal. (Livesey v. Stock, 208 Cal. 315 [ 281 Pac. 70 ], citing People v. Mortier, 58 Cal. 262 ; People v. McFarlane, 138 Cal. 481 [ 71 Pac. 568 , 72 Pac. 48 , 61 L. R. A. 245 ]; People v. Boren, 139 Cal. 210 [ 72 Pac. 899 ].)

Assuming that appellant interposed a challenge to the panel on the ground that it was a special venire, although the record does not disclose that such a challenge was made, we are nevertheless of the opinion that the court’s action in this regard was without prejudicial error; and at the time

Even assuming that there were irregularities in the summoning of a special venire, section 4y2 of article YI of the Constitution is applicable, and will apply if, after examination of the entire record, including the evidence, it appears, as in this case, that a miscarriage of justice has not resulted therefrom. (People v. Stennett, 51 Cal. App. 370 , 398 [ 197 Pac. 372 ].)

Other points raised by appellant do not require discussion.

The attempted appeal from the order denying appellant’s motion in arrest of judgment is dismissed, for the reason that the record discloses that no such motion was duly and regularly filed, nor argued or presented to the trial court.

Being of the opinion that appellant was fairly tried and justly convicted, the judgment appealed from and the order by which appellant’s motion for a new trial was denied are, for the foregoing reasons, affirmed.

York, Acting P. J., and Doran, J., concurred.