Montezuma

Upon petition for rehearing the court’s attention is called to an inaccurate statement to the effect that a controversy between the defendant and Cruz “was conceded”. It appears that defendant did deny this dispute. It was, however, satisfactorily established. Alfred Gilder, the owner of the ranch upon which the homicide occurred, referred to the matter. This controversy was important only as tending to show enmity on the part of the defendant toward Cruz, which the jury was entitled to assume may have been transferred to the deceased when he interfered with defendant’s attack upon Cruz. One further circumstance appears in the evidence which might furnish a motive for defendant’s ill will toward the deceased. It appears the mother of the deceased had brought suit in the justice’s court of Sebastopol against the defendant. He admitted this fact, but insisted that this suit caused no enmity against the deceased. The evidence or malice is sufficient upon which to support the verdict.

The appellant also complains of the disposition of his charge of prejudicial error on the part of the trial court in refusing to give certain instructions to the jury. Several *136 instructions on the…

The defendant was convicted of murder of the first degree and sentenced to life imprisonment. It is contended the court erred in failing to instruct the jury on its own motion upon the subject of manslaughter. It is also asserted the defendant was prejudiced by precluding him from proving that the prosecuting witness had been previously convicted of a misdemeanor.

The defendant and two companions had been engaged for eight years in cutting wood on the Gilder ranch in Sonoma *127 County. Montezuma’s associates were Joe Cruz, the prosecuting witness, and Julian Celaya, the deceased. They all ate their meals together in the Cruz cabin. The defendant slept in an adjoining shack. These cabins were located a short distance from the Gilder dwelling-house. Some dissension arose between the defendant and Cruz regarding the cooking. The defendant had the impression that Cruz had criticised him for his failure to pay for his proportion of the provisions. Except for this incident these wood-choppers appear to have associated on friendly terms.

January 30, 1931, this trio ate dinner together in the Cruz cabin. They afterward engaged in several friendly games of checkers, during which they…

The defendant was convicted of murder of the first degree and sentenced to life imprisonment. It is contended the court erred in failing to instruct the jury on its own motion upon the subject of manslaughter. It is also asserted the defendant was prejudiced by precluding him from proving that the prosecuting witness had been previously convicted of a misdemeanor. The defendant and two companions had been engaged for eight years in cutting wood on the Gilder ranch in Sonoma *Page 127 County. Montezuma's associates were Joe Cruz, the prosecuting witness, and Julian Celaya, the deceased. They all ate their meals together in the Cruz cabin. The defendant slept in an adjoining shack. These cabins were located a short distance from the Gilder dwelling-house. Some dissension arose between the defendant and Cruz regarding the cooking. The defendant had the impression that Cruz had criticised him for his failure to pay for his proportion of the provisions. Except for this incident these wood-choppers appear to have associated on friendly terms. January 30, 1931, this trio ate dinner together in the Cruz cabin. They afterward engaged in several friendly games of checkers, during which they…