Full opinion text
WHITE, J. In an indictment returned by the Grand Jury of Los Angeles County, 22 defendants were jointly charged, in count I, with the crime of murder and, in counts II and III, with the crime of assault with a deadly weapon with intent to commit murder. After the entry of “not guilty” pleas as to all counts of the indictment, trial was had before a jury, resulting in the acquittal of five defendants on all three counts. Of the remaining defendants, five were acquitted of the murder charge, but were convicted of minor offenses necessarily included in the remaining two counts. The other 12 defendants were convicted on all three counts; three being found guilty of murder in the first degree and nine of murder in the second degree. This appeal is prosecuted by the last mentioned 12 defendants, against whom verdicts of “guilty” were returned, as follows: Count II Defendant Count I Count III Henry Leyvas Murder 1st Degree Guilty as Charged Jose Ruiz Murder 1st Degree Guilty as Charged Robert Telles Murder 1st Degree Guilty as Charged Manuel Delgado Murder 2nd Degree Guilty as Charged John Y. Matuz Murder 2nd Degree Guilty as Charged Jack Melendez Murder 2nd Degree Guilty as Charged Angel Padillo Murder 2nd Degree Guilty as Charged Ysmael Parra Murder 2nd Degree Guilty as Charged Manuel Reyes Victor Robt. Murder 2nd Degree Guilty as Charged Thompson Murder 2nd Degree Guilty as Charged Henry Ynostroza Murder 2nd Degree Guilty as Charged Gus Zammora Murder 2nd Degree Guilty as Charged Epitomizing the factual background which gave rise to this prosecution, it appears from the record that, on the evening of August 1, 1942, a birthday party was in progress honoring Mrs. Amelia Delgadillo. The party was held at her home and was attended by her husband, other members of her family and some twenty or thirty other invited guests. The record discloses that some eight or eleven uninvited' persons were also in attendance. The Delgadillo home is located on what is known as the “Williams Ranch,” situate in the vicinity of Slauson and Atlantic Boulevards in the county of Los Angeles. At the birthday party, on the evening in question, the guests indulged in dancing out in the patio to the music of an orchestra, which played from 9 p. m. until 1 a. m. After the departure of the musicians, a radio was placed in the back yard and members of the family with a few remaining guests continued dancing until approximately 1:45 on the morning of August 2nd. Sometime before midnight, several of the defendants in this ease had gone to a small pond or reservoir also located on the Williams Ranch about a half mile west of the Delgadillo home, and designated by the boys and girls who, from time to time, congregated there, as “Sleepy Lagoon.” While the aforesaid group, consisting of some of the boys who later became defendants in this case and their girl companions, were at “Sleepy Lagoon,” they were set upon and beaten by another crowd of boys identified only as “boys from Downey.” The record also discloses that some eight or ten of these so-called “Downey boys” were among the uninvited guests at the Delgadillo party, and, earlier that evening, two of them became involved in an argument with their host and his son-in-law, because their host told them there was no more beer. One of those boys “grabbed” a chair in a threatening manner, but the other “grabbed” him with both hands on his shoulders, turned him around, and pulled him back outside of the patio gate. The witness, Eleanor Delgadillo Coronado was sitting in the patio across from the gate. She testified: “When I seen him, and I got up and then went to the kitchen door . . . because . . . when I seen these two boys come up, I thought they were going to start trouble or something. ’' Following the aforesaid attack upon some of these defendants by the so-called “Downey boys” at “Sleepy Lagoon,” the former left the scene of the altercation and repaired to the vicinity of Vernon and Long Beach. Avenues, some five miles distant from “Sleepy Lagoon.” This last named location, it appears, was a place at which a group of young people from the 38th Street neighborhood congregated. We think it is a fair statement to say that the defendants who had been beaten up at “Sleepy Lagoon,” smarting under the effects of the beating administered to them, returned to the vicinity of Vernon and Long Beach Boulevards for the purpose of enlisting the aid of their friends and going again to “Sleepy Lagoon” for the avowed purpose of “fighting it out” with the boys from Downey. Thus reinforced, a number of boys and girls, including the defendants, ranging in age from 14 to 22 years, went out towards “Sleepy Lagoon” in several automobiles, variously testified to as being from five to ten in number. There is evidence that, prior to embarking upon the last mentioned trip, one of the defendants, Angel Padillo, who accompanied the caravan, obtained a box of shells for his 22 rifle, which he took with him. The evidence on this point is in conflict, but, in any event, it is conceded the rifle was not utilized in the commission of the alleged homicide or either of the two assaults charged against the defendants. Upon arrival at “Sleepy Lagoon,” it was discovered that the boys from Downey had departed. Thereupon, some of the party disembarked from their automobiles and proceeded on foot to the Delgadillo home, where the aforesaid party was in progress, while others proceeded thereto in their automobiles, where most of them alighted from their vehicles. What transpired thereafter will be discussed presently, but we pause here to give consideration to respondent’s claim that, in returning to “Sleepy Lagoon,” the defendants had entered into an unlawful combination or conspiracy, the object of which, as the result of their malignant hearts, was' to commit murder in satisfaction of their lust for revenge. We have painstakingly read the reporter’s transcript in this case, containing, as it does, more than 6,000 pages. We have studiously read and considered the briefs filed herein, which total some 1,400" pages, and from a reading thereof we are persuaded that" there is no substantial evidence to support the claim that when the defendants left the vicinity of Vernon and Long Beach Avenues they had “murder in their hearts” or even that they had then formed any intent to go to the Delgadillo home. As we view the evidence, it strongly supports the theory that some of the defendants were intent upon meeting the “Downey boys” and engaging in a fist fight with them in retaliation for the attack made upon some of the defendants earlier that night at “Sleepy Lagoon.” It was only when these defendants discovered that the objects of their search had departed from “Sleepy Lagoon” that they determined upon going to the Delgadillo home. As to what prompted this decision upon their part the evidence is in extreme conflict. At all events, it can be said that the evidence does not reflect any unanimity of purpose. There is some testimony that one of the defendants, ■who had previously been at the party and had danced with one of the Delgadillo girls, stated that it was a “good party” and suggested that the group go there. There is other evidence that, when defendant Leyvas and some of his codefendants entered upon the Delgadillo premises, they demanded to know the whereabouts of the “men who had beaten them up. ’ ’ Some of the defendants had no knowledge of the party and no longer expected to find the “Downey boys,” hut just followed the others. But it belies the record to assert that what happened subsequently at the Delgadillo party was the result of a collective intent upon the part of the defendants to commit murder, and that the conduct, behavior and actions upon the part of the defendants at the party manifested a conspiracy to commit murder or assaults with intent to commit murder. The most that the record reflects in this regard is that until their arrival at “Sleepy Lagoon” and their failure to find the “Downey boys” there, defendants had a common intent to encounter the “Downey boys,” and thereupon engage in a course of disorderly conduct, breach of the peace, or battery. As we shall hereafter in this opinion point out, the jury, by their verdicts, rejected the theory of the prosecution that the defendants had engaged in a conspiracy; and we think rightly so in the light of the evidence presented to which we subsequently shall refer. Following the entry of some of the defendants into the Delgadillo premises, a general “free for all” fight ensued. After this controversy and the exit of the defendants from the Delgadillo premises, one Jose Diaz was found lying unconscious in the dirt outside the fence south of the Delgadillo premises, and later died. There is no evidence as to his whereabouts or actions during the “free for all” fight involving the defendants. People’s witnesses testified that he was seen leaving the Delgadillo premises, accompanied by two other guests who were not produced as witnesses, several minutes before the arrival of any of the defendants. In describing the injuries upon the body of the deceased, the autopsy surgeon testified: “Further examination showed the backs of both hands to be contused and somewhat swollen with abrasion of the knuckles of the little and ring finger on the left hand, and the second finger of the right hand. The facial features were Swollen and there was contusion over the left side of the lower lip and also the upper lip; there was contusion over the prominence of both cheeks and abrasions over the outer angle, the right angle of the mouth. The left ear was quite markedly contused, and there was extensive eechymosis of the scalp over the left side of the head. Upon opening the skull the brain was found to be contused and there was a profuse subdural hemorrhage. The base of the skull was fractured, the fracture line running along the lesser wing of the sphenoid bone on the left side.” The autopsy surgeon also testified that the chemical analysis of the blood of the deceased, made at 7:30 a. m. on August 2, showed 0.12 per cent alcohol, and testified that the margin of intoxication is generally accepted as 0.15 per cent. This physician also testified that, from the time one stops drinking, the alcoholic content of the blood of a living person recedes, so that it would be impossible for him to say whether or not Jose Diaz was intoxicated a few hours before his death. This witness said the swelling of Jose Diaz’ hands was similar to that caused by delivering blows with fists, and that “The appearance on the left side of the head of the eechymosis of the scalp and the crushing effect on the left ear indicated to me that some other instrument than a fist had been used to bring that injury about.” He later said, with respect to the cause of this injury, “If this decedent had fallen to the ground . . . the head could have hit a protruding rock or something else other than a smooth surface.” As a result of these injuries and primarily because of the profuse hemorrhage and skull fracture, Jose Diaz died about four o’clock the same morning in the hospital to which he was taken. One Jose Manfredi, who is the victim mentioned in count II, received a stab wound three or four inches long and about three-quarters of an inch deep, on his chest just below the heart. He also had a fracture of the frontal wall of the sinus, a basal skull fracture, concussion of the brain, and a broken left hand. He was taken to the general hospital and did not fully recover consciousness until about two o’clock on the following afternoon, August 2nd. Cruz Reyes, named as the victim in count III of the indictment, received a stab wound in the abdomen and suffered contusions about his body. The victims of the assaults alleged in counts II and III of the indictment claim to have been stabbed early in the fight while.they and some of the defendants were in the Delgadillo patio, and later to have received severe beatings with steel instruments wielded by numerous boys on the east side of the Delgadillo premises. We shall now refer in detail to the evidence introduced of and concerning the activities of each defendant upon the occasion with which we are here concerned. Henry Leyvas Concededly this defendant was one of those who, earlier in the night, had been attacked by the so-called “Downey boys” at “Sleepy Lagoon.” Joe Manfredi, the victim in count II, testified that defendant Leyvas had both a knife and a club in his hands while in the patio of the Delgadillo home. Plowever, there is no evidence that defendant Leyvas stabbed Joe Manfredi. In fact the only testimony in that regard is the more or less unsatisfactory testimony to which we shall hereinafter refer, and which, if it is to be believed, would indicate that defendant Ysmael Parra committed the felonious assault upon Manfredi. The victim Joe Manfredi testified that, when he ran from the patio, Leyvas, Delgado and Parra ran after him as he fled. But, in the course of his testimony, he, Manfredi, testified as follows: “After all, I turned around and left there. I didn’t see who was going to follow me, but those were the three that rushed me and naturally they must have followed me . . . No, I never turned around back again to see.” The generally unsatisfactory state of the testimony given by Joe Manfredi is referred to more in detail in the epitome of the testimony hereinafter appearing concerning the defendant Ysmael Parra. There is also testimony that Leyvas struck and kicked Lola Delgadillo. However, defendant Leyvas contends that he did not kick or hit Miss Delgadillo, but shoved her aside as he was attempting to escape from her father who was coming toward him with a knife. The witness, Dominic Manfredi, brother of Joe Manfredi, testified that when defendant Leyvas approached him, Leyvas had a knife in his hand. Cruz Reyes, the victim of the assault contained in count III, did not identify defendant Leyvas as his assailant. While a number of state’s witnesses testified that Reyes was assaulted by Leyvas, none testified that such assault was committed with a deadly weapon, and the uncontradicted evidence reveals that such assault consisted of a blow with the fist, and this notwithstanding that several of the prosecution’s witnesses testified that Leyvas did have some sort of weapon in one of his hands. Some of the prosecution witnesses testified positively that whatever object defendant Leyvas had in his hand was in his left hand. Joe Manfredi, the victim named in count II, after saying he had weapons in both hands, testified of and concerning defendant Leyvas. “I didn’t say he lifted them (referring to weapons) up in hitting, or anything like that; I didn’t say.” From the foregoing recital, it is at once apparent that there is absolutely no testimony whatever to directly connect defendant Leyvas with any assault upon the deceased, Jose Diaz, nor is there any evidence to connect him with an as-" sault upon the victims mentioned in counts II and III with intent to commit murder. Respondent lays great stress upon the fact that in the statement given by this defendant to the officers, as well as in his grand jury testimony, he denied being present at the Delgadillo home on the night in question. The falsity of these statements, argues respondent, is proof of his guilt. This we cannot concede, because a reading of the record indicates that this defendant refused to admit his presence at the scene of the alleged offenses because he was not permitted to consult with his attorney or to see any of his friends, and further because of the fact that force and violence were used upon him by the officers. In this latter regard, it is noteworthy that this defendant’s claim that he was beaten by the officers was not denied. Joe Ruiz With reference to this defendant, the only evidence we can find in the transcript, or to which we are directed by respondent, is that he went to the ranch house where the fight took place on the night of August 1st. That, when he arrived, a fight was already in progress in front of the house; that defendant Leyvas called out, “Some one take care of the back”; that, thereupon, this defendant went to the rear and started throwing rocks at the house. , When accused by the officers of having a two by four, this defendant denied it, but later, according to his statement to the officers, when he was advised that certain of the other defendants had stated to the officers that Ruiz used the club and that his companions had taken it away from him and thrown it in the weeds, he was directly asked the question, “Do you remember?”, to which Ruiz answered “yes.” From a reading of the statement of this defendant to the officers, however, it is not clear whether, by his answer, he intended to admit that a club was taken away from him and thrown into the weeds, or to convey the impression that he remembered that four boys were fighting with their fists, because in his statement immediately following the portion to which we have just referred Ruiz denied hitting anybody with a club and said, “We were all hitting the man with our fists, but I didn’t use any board.” This defendant also admitted to the officers, according to his statement, which was in evidence, that he did throw rocks and kick a man who was lying sideways “on his belly.” It would only prolong this opinion to set out other evidence of and concerning this defendant which, suffice it to say, does not in anywise connect him with having made an assault upon the deceased Diaz or with having engaged in an altercation with either of the victims named in counts II and III. In accounting for the verdict rendered against this defendant of first degree murder, it is noteworthy that the jury had heard read statements of other defendants, which, while the court instructed the jury were not to be considered against Ruiz, nevertheless implicated him in assaults far more severe than the one admitted by him in his statement to the officers. Robert Telles Concededly this defendant was also one of the group that had been attacked earlier in the evening by the so-called “Downey boys” at “Sleepy Lagoon,” and had thereafter returned, with defendant Leyvas, to the vicinity of Vernon and Long Beach Boulevards, from which place he assisted in escorting the group that returned to “Sleepy Lagoon” and the Delgadillo premises by driving his automobile in the caravan. The only testimony relied upon by the prosecution to connect this defendant with the crimes charged against him is his own statement made to the officers following his arrest. In this statement, this defendant, after identifying some of his eodefendants as being present at the Delgadillo home, stated that the purpose of the return trip to “Sleepy Lagoon” was “to try to catch the boys who were hitting us, and teach them a lesson about bothering couples; ... to have it out with those in general who were beating the rest of them.” In his statement this defendant also stated that it was intended to engage in a fight with the “boys who were hitting us” with fists. This defendant further stated that when he arrived, he heard screaming and shouting and the next thing he knew he was engaged in a fight with another man; that the man with whom he was fighting hit him “a couple of good ones in the belly,” and he “folded up”; that when he next saw the man, the latter was running away; that he heard women screaming and yelling at the house. After identifying the people who accompanied him in his car on the return trip, he stated that, when he was under the lights, where the fighting was going on, he could see girls pulling hair; he saw a boy lying in the road gasping, and that he “figured” he had been cut; that he observed two girls bend over the man and wipe off his face. It is noteworthy that the deceased, Jose Diaz, was not cut, according to the testimony of the autopsy surgeon, or any other evidence in the case. In this statement, this defendant further told the officers that, after he had gotten the “worst” of it in the first fight, he picked up what he described as a “stick” for the reason that he was not going to let anyone “lick” him any more. He further stated that he struck a man with this stick, saying “I hit him on the back and then I stumbled; I hit him in the rear.” This defendant also told the officers he did not see any one at the Delgadillo home that night with a knife, but that he had a knife in his automobile which he carried with his tools and that somebody had taken it, because it was not in his car the next day when he undertook to repair one of the tires. Nowhere in the evidence are we able to discern any testimony connecting this defendant with any assault upon the deceased Diaz, or upon either of the victims named in counts II and III of the indictment. ■ Manuel Delgado This defendant was admittedly one of the defendants who had been attacked by the “Downey boys” earlier in the night. The witness, Joe Manfredi, testified that, at the time he entered the patio to ascertain what was going on and asked certain questions of defendant Leyvas, this defendant Delgado, who was present, said, “What are you going to do about it?” and Joe Manfredi said that a group, including this defendant, standing there, came toward the witness, whereupon he started to run away; that each one of the defendants named as being in the group had a knife in his hand and chased him. But, as heretofore pointed out in connection with the evidence affecting the defendant Leyvas, this witness, Joe Manfredi, on cross-examination, was not at all sure as to the identity of any of those in the pursuit group that chased him. Other than the foregoing, the evidence against this defendant consisted of a statement taken down in shorthand in. the presence of a deputy sheriff on August 4th. After telling that he had been at “Sleepy Lagoon” between 10:30 and 11:30 p. m. when he and some of his codefendants and their girl friends were set upon by the “Downey boys,” he said they returned to the vicinity of 38th and Long Beach; that thereafter, when a crowd of reinforcements was recruited, consisting of about thirty boys, including himself, and several girls, they returned to the “Lagoon.” This defendant stated that he drove his own car and identified some of the occupants thereof on the return trip; that he did not recall any plan of action contemplated by the crowd which returned to the “Lagoon”; that windows were broken in the automobiles parked at the ranch, and that he, himself, picked up a broken chair and threw it against a car. In his statement to the officers, this witness told them that when he arrived at the scene “everything was just about over”; that he took no part in the altercation and that he threw no rocks. He denied being in the patio, but there was testimony by Joe Manfredi to the contrary. However, the only other evidence on this point is that of Marie Delgadillo who testified for the prosecution as to what happened in the patio and stated that she did not see this defendant Delgado the night or morning of the occurrences at the ranch. To summarize the prosecution’s ease against this defendant, it may well be said that no witness, other than Joe Manfredi, testified that Delgado was in the patio, and, except for that, no witness testified that this defendant did anything except as declared by him in his statement. Manifestly, as to him, there was no evidence whatever to connect him as an actor in the homicide or either of the assaults charged in the indictment. John Y. Matuz The only testimony concerning this defendant, which we are able to discover in the transcript or which has been called to our attention by respondent in its brief, is that contained in the testimony given by this defendant before the grand jury, wherein he admitted that he was at “Sleepy Lagoon” about 11:30 Saturday night, August 1st, with a girl friend; that he heard about the fight between Leyvas and some of the “Downey boys” and that he left the “Lagoon” with the idea of returning to Los Angeles and getting a number of boys together and going back. When asked if he was a memher of the so-called 38th Street Gang, he said “You can call it that. I have been hanging around with them for about two weeks now.” According to his testimony before the grand jury, defendant Matuz returned later that night to the “Lagoon” with Melendez, Josephine and Juanita Gonzales and another boy. Before returning to the “Lagoon” he had seen defendant Leyvas at Vernon and Long Beach Boulevards. When this defendant went back to the Williams Ranch that night he was accompanied by the same boys and girls 'who had previously been with him. He knew some of the other defendants were going back to the ranch and he followed them. He stated that he made the return trip with the idea of “beating up” the boys who had fought with Leyvas. He testified further that he was intoxicated at the time he returned to the “Lagoon” and did not remember getting out of the ear, although “they say I got out.” He was aware of the fact that the fight was going on, because he heard “'hollering” and breaking of windows. He was uncertain as to what, if anything, he did while he was there, but remembered some one saying “Let’s get out of here.” The respondent asserts that Josephine Gonzales testified that she believed this defendant was one of those engaged in breaking cars on this last trip, but a review of her testimony indicates that she was so confused and uncertain as to brand her testimony as most unsatisfactory. Upon this evidence, which fails to show that this defendant participated in any way in the assault upon the deceased Diaz or the victims, Cruz Reyes and Joe Manfredi, with or without any intent to kill, or with or without a deadly weapon, he was nevertheless convicted of murder in the second degree and of both charges contained in counts II and III. Jack Melendez Marie Delgadillo testified that she saw this defendant present in the road near the gateway which was the entrance to the patio; that at that time he had a stick in his hand and said “Why didn’t you tell me?”, after which he turned and ran down the road toward the power poles. It might here be stated that the deceased Diaz was found unconscious in this road between the two power poles. Although on direct examination the witness, Marie Delgadillo, had identified this stick as being similar to Exhibit 19, which was introduced in evidence, and said that it was a piece of two by four, 22 inches long, Exhibit 19 was a piece of two by three and the witness thought it resembed the piece of wood she saw in Melendez’ hand. On cross-examination she further testified that she would call a stick of any size a two by four, provided it was a stick about 22 inches long. Another witness, Josephine Reyes, a sister of Miss Delgadillo and wife of the victim, Cruz Reyes, in testifying about the foregoing incidents, said she saw Melendez enter the patio from the road about two to five minutes after Leyvas and the others had left the patio, converse with her sister, Eleanor Coronado, and walk back and out the gate. With reference to the statement made by Melendez, “Why didn’t you tell me?”, testified to by Miss Delgadillo, the witness Josephine Reyes said that this defendant preceded this remark by addressing a question to her as to what had happened in the patio and that the remark was made after she told him that there had been a fight there. This defendant testified before the grand jury and his testimony there given was read into evidence at the trial. He testified he went out to the Williams Ranch at the invitation of defendant John Matuz; that he did not remember whether he had been told about the assault upon some of the defendants which had occurred on Saturday evening, August 1st, at “Sleepy Lagoon”; that he was not told that there was going to be a fight or that anybody was to be beaten; but that he went out because “they were going out for a good time” and “to ride around”; that he was “passed out” in the back seat and did not leave the automobile. However, Melendez’ statement to the effect that he did not leave the automobile is contradicted by the testimony of several prosecution witnesses. This défendant did not testify at the trial or deny any of the aforesaid evidence, but we fail to see wherein it in anywise directly connects this defendant with the assaults made upon either the deceased Diaz or the victims mentioned in counts II and III. Nevertheless, this defendant was convicted of murder in the second degree and of two counts of assault with a deadly weapon with intent to commit murder. Angel Padillo There was testimony that this defendant was at the Delgadillo home on the Saturday evening and early Sunday morning here in question. Marie Delgadillo testified that she saw him at the party about 11 p. m. and that he was one of the uninvited guests who was dancing; that she herself had danced with him. Another witness testified that he saw Padillo between 10 p. m. and the time when the orchestra left at 1 a. m. The three witnesses who were in the patio at the time when the defendant Leyvas and other defendants entered did not identify Padillo as entering the premises with the Leyvas group. Two witnesses, in addition to defendant Padillo himself, testified concerning t¡he latter’s possession and use of his 22 rifle. One of these witnesses, the defendant Delgado, testified that he saw defendant Padillo shoot his gun into the air near the “Lagoon.” There was testimony that Padillo had fortified himself with bullets for his gun while at the gas station. Padillo admitted having the gun and taking it with him, as he said, “to show off in front of the boys.” He admitted he fired it twice when he got out of his car before any fight started, and said he did not fire the rifle near the Delgadillo premises or shoot at any person. There is no admissible evidence in the case which contradicts this defendant’s statement that he used his rifle only at the “Lagoon” and shot twice into the air or at some telephone poles. In any event, it is not contended that the rifle was used in any of the assaults allegedly committed. This defendant made a statement to certain police officers after being taken to the police station. In this statement, he admitted that he returned to “Sleepy Lagoon” to assist in “beating up” the gang that had earlier assaulted his companions there. He said that when he arrived at the Delgadillo home on the return trip the people had departed, the fight was over, but that some of the boys were breaking ear windows and puncturing tires. In this statement, he admitted that he had his gun there and shot at two telephone poles, firing two shots; and that “we were worried about the cops”; that, after the fight, he took his girl companion home and came back to the pool hall where he heard some of his companions talking about what had occurred at the Delgadillo home. In this statement, defendant Padillo said that he expected to fight when he went to the Williams Ranch that night; that he went there to engage in a fight and help defendant Leyvas, because the latter had been beaten. This defendant also testified before the grand jury, at which time he stated he went to the Williams Ranch Sunday morning with Valenzuela and a girl friend; that he went there after he had been informed that some one had been beaten up at the ranch; that he followed the other cars in his automobile; that when he arrived at the ranch everything-was all over, except that car windows were being broken and tires punctured; that he fired his rifle about 75 or 100 feet from the Delgadillo house. Before the grand jury this defendant stated he parked his car a long way from the ranch buildings; that he took the gun out of his car when he went toward the ranch buildings, but that it was not then loaded. When asked why he took the gun along if he was out of ammunition, he said “just to take it.” He further testified that he had put the gun in his automobile Saturday morning for the purpose of hunting rabbits, but he did not go hunting that day. At the trial this defendant took the witness stand and testified with regard to limited matters only. While a witness at the trial, he stated that his statement made to the officers was entirely false; that he made it only because of a terrific beating administered to him by some of the officers. That any assault was made upon this defendant was denied by the officers who questioned him. At the trial, he stated that his testimony given before the grand jury was “true,” but in some respects was based solely upon “what he had been told.” Other than that this defendant was at the Delgadillo home; that he had a 22-ealiber rifle; that he fired the same some distance from the Delgadillo home, there is no testimony to connect him with the homicide or either of the assaults charged. Neither is there any testimony that this defendant used the gun as a club, or in any manner whatsoever other than as hereinabove narrated. Ysmael Parra The statement of this defendant, made to the officers before his arraignment, and his testimony before the grand jury, are substantially the same. According to his grand jury testimony and statement, he was parked in front of Joe Carpió’s home on 41st Street getting ready to go home when Leyvas came up and said that some “guys” had hit him, and also “Let’s go and beat them up,” whereupon everyone got in ears and went. He and his wife, Delia, went to Williams Ranch with Benny Alvarez in his car which was parked near “Sleepy Lagoon,” and they walked from there to the Delgadillo home. When they entered the patio a fight was already in progress there. An old man (Mr. Delgadillo) came up with a knife or razor in his hand and made a motion as if to try to cut him, and, when some one attracted the old man’s attention, he hit him with his fist, knocking him down, then grabbed his wife and started for the car, going back through the patio gate through which he had come in. There is no evidence of any kind connecting this defendant with the alleged murder of Jose Diaz charged in count I, or the alleged assault with a deadly weapon with intent to commit murder upon Cruz Reyes charged in count III of the indictment. As to the alleged assault with a deadly weapon with intent to commit murder upon Joseph Manfredi, charged in count II of the indictment, we quote the following from respondent’s reply brief: "Joseph Manfredi testified that Parra, Leyvas and Delgado chased him from the vicinity of the kitchen door of the Delgadillo house and under a peach tree . . . and that Parra had a knife and a club .... "Eleanor Coronado stated . . . that she saw Parra going after Joe Manfredi with a knife and saw him stab Manfredi.” The record supports respondent’s statement, so far as it goes, but, after a careful reading and comparison of the entire testimony of these two witnesses, we are unable to reconcile the foregoing claims of respondents with the stories told by said witnesses. Joe Manfredi’s testimony is that he had come to the party as an invited guest; that, because he did not dance, he had stood around just outside the gate to the patio talking with some of the men and watching the dancing from about 10 o’clock Saturday evening until some minutes after the arrival of the defendants and their companions; that he had seen no group of uninvited boys hanging around that gate at any time that night, and, at no time prior to defendants’ arrival, had there been more than six or seven men, including the men of the Delgadillo family, at the party; that before defendants and their companions got out of their cars, although he couldn’t see whether the cars were open or closed, sedans or coupés, he could see that each man carried weapons (knives, clubs, chains, etc.) in both hands; that Frank Coronado, Salvador Negrete and Remedios Parra, with Avhom he Avas then talking "just ran away, that is all. I didn’t know what they were going to do or what they were up to”; that he, Manfredi, did not know where they went, but they started toward Coronado’s house; but Manfredi did not run because he “hadn’t done anything”; Joe Diaz had been talking with them there but had left about three or four minutes before defendants and their companions arrived and Manfredi didn’t know where he went; that, at that time, the only men in the patio were Cruz Reyes, Dominic Manfredi, and Mr. Delgadillo ; there were two or three other men about the Delgadillo home at that time, but Manfredi didn’t know where they were just then because he couldn’t see them. Manfredi remained standing a short distance from the gate and watched the group including Leyvas, Parra and Delgado approach and enter the patio; that he stood there looking through the gate for several minutes; that he saw Eleanor Coronado and Lola Delgadillo walk right up to the gate and ask this group what they wanted; that he heard them say “tell ’em to come out here” and the Delgadillo girls said “there was nobody there, who they wanted”; that he saw the fellows push the girls back into the patio; that the boys did not say anything about any fight or being beaten up, “if I did hear anything like that, that they had a fight or anything, I probably would have left the party”; that after he saw them fighting with the Delgadillo family and guests in the patio; saw Marie Lola on the ground being kicked and punched, the girls that came in having Eleanor Coronado and Victoria Delgadillo by the hair, and all of the girls fighting, and heard Cruz Reyes “holler,” he walked into the patio to find out what was going on, what they wanted and what it was all about. He did not see Cruz Reyes or Dominic Manfredi, his brother, in the patio at any time after he entered it. The only one of the defendants he actually saw fighting was Leyvas, and he said, “You see, when I went in, he sort of stopped.” He asked defendant Leyvas what they wanted, and defendant Delgado said, “What are you going to do about it?” Manfredi said that they were all in a group there near the narrow passageway between the kitchen and bunkhouse and Parra was “standing almost beside him.” But he further testified, “No, I don’t remember . . . I seen him (Parra) in the group there, and just what position he was standing there, or which position I was standing there, I can’t really tell you.” He said that they all had knives in their hands; that the blade of the knife he saw in one of Parra’s hands (he didn’t know which hand) might have been longer than two or three inches- “the fellow didn’t demonstrate it,” so the witness said he did not know. He, Manfredi, “was sort of the only man there” and didn’t have anything in his hands, so he ran. He said, “The only time I started to run was when the fellows all come towards me. Now, I am not mentioning any particular one.” He testified that Leyvas, Delgado and Parra chased him and there were more behind them, but also said, “I didn’t stop to see who was following me; I just started to run.” When he was reminded of his previous testimony that “he (Henry Leyvas) was kind of ready to swing at me or something, and I started to run,” he said, “Wait a minute. I am going to tell you why I answered that question. The reason I answered that question was because if a whole bunch stood up there and if you pointed them to me, I would still say a group, but when individuals stood up- I said he was running towards me, that man, just him.” Then followed the questions and answers here quoted from the record: “Q. You did that because the District Attorney had one defendant stand up at the time ? A. That is right. “Q. That is why you singled out an individual—just a minute now—the reason you singled out any individual then in the courtroom and identified him as doing anything is because the District Attorney had the individual then stand up; isn’t that true? A. That is correct. . . . “Q. By Mb. Van Teess: You recall when the District Attorney had Ysmael Parra stand up in the courtroom-do you remember when Ysmael Parra stood up. A. Yes, I remember when he had him stand up. “Q. And the reason you testified with reference to Ysmael Parra, was it because he stood up individually and not with the rest of the defendants? A. I don’t know just-I don’t know just- “Mr. Barnes : If your Honor please. “The Court: I think that question- the- danger of that question is, regardless of how it may be answered, the answer would, of necessity, be ambiguous, in view of the testimony already given. “Mb. Van Teess : I will withdraw the question.” Joe Manfredi testified that he was cut “on my stomach, on my chest, like. ’ ’ The scar exhibited to the jury was approximately three inches long and Manfredi said the cut was about one inch deep. He said he was cut “right in the hallway there . . .” as he “started to leave . . that he “didn’t see who done it.” He didn’t see the knife that cut him, or the hand holding the knife. “I believe just as soon as I started to run I must have got cut.” In answer to the trial judge’s questions, “Well, were you cut before you started to run?-Or, don’t you know?”, Manfredi said, “Here is the point, I don’t-you see, I got cut just as soon as I turned my back, you see, and started to run, that is when I got cut.” When the trial judge asked, “Why must it have been that time instead of some other time, that is what we are trying to get at?”, Manfredi said, “Well, yon see, I sort of felt some arm come around me or something, I don’t know, you see, it was only a matter of a split second right there and then.” When asked which side of his body he felt the arm or object come around, the witness said, “Well, I was stabbed, and that is all I can remember; I didn’t take time to notice ... I didn’t stop.” When asked, “How close was the closest person to you when you started to run?”, he answered, “Well it was pretty well behind me-.” Then the trial judge asked, “Was anybody closer to yon than I am to you right now?”, and he replied, “Well, yes, I seemed to feel somebody grabbing me, something like that, they were close . . . almost within reach ...” and the judge repeated this answer, “He was within reach of him.” Manfredi does not know who this closest person was. Nobody raised a knife and threatened to cut him while he was standing there. Just as he got to the fence where he claims he was beat on the head, hand and body with chains and weapons of steel, “there was more come in.” He didn’t see any of them or the weapons they used. Later he said, “I think they left there, I couldn’t say for sure, but still more kept coming in from somewheres.” The witness, Mrs. Eleanor Delgadillo Coronado, testified that she saw Ysmael Parra at her father’s home during the fracas which started there in the patio about 1:45 a. m. Sunday morning, August 2, 1942, and said further: “Well, after he hit her (referring to Henry Leyvas hitting Marie Lola Delgadillo) he knocked her out and she fainted, and then after that there was just- everybody started fighting . . . Well, after they started fighting I seen Joe Manfredi-that is a boy that was at the party-some boy was hitting him in the stomach, and he was bringing him in from sort of a gateway . . . Well, they was asking some boy-1 don’t know who he was-‘What are you doing? What are you after?’ And this boy kept hitting him, and then Joe walked to sort of- Joe Manfredi walked into a platform near the kitchen door, and then there was another fellow going after him, this Ysmael Parra, and he (Ysmael Parra) stabbed Joe. So I thought he was going to kill him. . . . Then I started fighting with Delia Parra, and then Ysmael Parra turned around and he saw us, and then he said, ‘My wife.’ Then Parra turned around and he hit me and he knocked me down. ...” “Q. . . . Who did you see go after Joe Manfredi ? A. Ysmael Parra. “Q. When you saw Parra go after Joe Manfredi, you saw a knife in Parra’s hand; is that right? A. Yes, sir. ‘ ‘ Q. Which hand did he have it in ? A. In his right hand.... ‘‘Q. And Parra was pointing it toward Joe Manfredi? A. Yes. Q. . . . What was Parra doing the first time you saw him? A. Well, I just saw him when he was going after Joe Manfredi. ‘‘Q. And was Joe Manfredi facing Parra? A. No, he was-he had his back toward him.” This witness testified that she then grabbed up a beer bottle and started after Parra with it, when Delia Parra grabbed her from behind and she ‘‘turned around and tried to take her off.” “Q. Where did this take place, where you and Delia Parra were engaged in this altercation? A. Eight near the kitchen door. ‘‘Q. Which way did you see Joe Manfredi run when you say you saw Parra, Mr. Parra, behind him with a knife? A. He ran in through where the kitchen door is, into that little hall, like, that we have there, out to the front of the house. ... ‘‘Q. About this time, then, Mr. Parra turned around and he saw you and Delia Parra fighting, is that right? A. Yes, sir. ‘‘Q. And then you heard Mr. Parra say, ‘My wife’ ? A. Yes, sir.” This witness “doesn’t think” these are the answers she gave the grand jury, as read from the grand jury transcript. “Q. ... Henry Leyvas hit your sister Marie? A. Yes. And after that he goes after this Manfredi, boy, and I seen him, so I saw a beer bottle there and I grabbed it and was going to hit him over the head. “Q. Who went after Joe Manfredi? A. Henry Leyvas. I grabbed a bottle and was going to hit him over the head, but some girl from the back grabbed me and she said, ‘You cannot hit my old man. ’ “Q. Did you know who that girl was? A. The Encinas girl, I think, Lorena Encinas. “Q. Go ahead. A. And then I grabbed her, and I hit her real hard, and there was a washing machine in the corner of the kitchen down there, and she hit against it, and this boy turned around and saw me hit her. “Q. What boy? A. Henry Leyvas; and then he said ‘My wife.’ That is what he said, and that is all I know, because I seen this Manfredi boy go out the other way, and then there was a whole crowd on top of me, and that is when he turned around and hit me here (indicating).” Her further testimony at the trial was: “Q. Did somebody hit you either that evening or that morning? A. Yes. Q. Who? A. Parra. ...” She “is sure” she did not give the following answers before the grand jury, as read from the official transcript: “Q. Is that (the scar indicated) the result of the blow you received? A. Yes. . . . ‘ ‘ Q. What were you hit with ? A. His fist. “Q. Who hit you? A. This boy. “Q. Henry Leyvas? A. Yes, sir.” Thereupon, at the trial she testified as follows: “Q. When you testified before the Grand Jury you knew who Henry Leyvas was, didn’t you? A. Yes, sir, I did. “Q. You knew him then, didn’t you? A. Yes, I seen him in the line-up. “Q. And when you were at the Grand Jury somebody showed you a picture of Henry Leyvas, didn’t they? A. Yes. . . . “A. Well when they showed me a picture of Henry Leyvas, I said that was the man I recognized there. (Leyvas stood at Defense Attorney Van Tress’ request.) “A. Yes, that is him. “Q. That is the picture that was shown you? A. Yes. “Q. At the Grand Jury? A. Yes. . . . “Q. . . . Where did you see Joe Manfredi go when he was being chased? A. He went out through the side of the kitchen up to the front of the house. . . . “Q. Reading page 169 of the Grand Jury transcript, beginning at line 19:‘Q— Did you see the girls assault anyone? A—Just the one grabbed me, but there were about three girls, I can remember, that were there, but the only one I could recognize was this Encinas girl’ Was that the answer that you gave before the Grand Jury? A. Yes. That was before I had seen the Parra girl. . . . “Q. Now, you told us that it was Ysmael Parra who went after Joe Manfredi? A. Yes, it was him. “Q. When you testified at the Grand Jury hearing you testified that it was Henry Leyvas who went after Manfredi ? A. I don’t remember saying that. I knew all along who it was that was going after Joe Manfredi. . . . “Q. You say you saw Parra chasing Joe Manfredi? A. Yes. ‘1Q. And the next thing that happened was that while some girls were piled on top of you that Parra then came back and hit you; is that right ? A. Yes, after he had stabbed Joe Manfredi. “Q. Did you see him stabbing Joe? A. Yes, I did. I seen him. “Q. Where was Parra and where was Joe when you saw that? A. Right here (indicating); right here in this corner (indicating a place in the passageway between the bunkhouse and the Delgadillo home, near the southeast corner of the bunkhouse). . . . “Q. Now, in the light there did you see Parra? A. Yes, I saw him when he went after Joe Manfredi . . . with a knife. ’ ’ The testimony of this witness is in conflict, as shown by the above quotations from the record, with that of Joe Manfredi on the important points as to when Joe Manfredi entered the patio and the manner of his entry, as well as to when the witness, herself, engaged in the fight with another girl involving hair pulling and her hitting a girl with a beer bottle, and as to when and how the Parras left the patio. Obviously, if Parra stabbed Joe Manfredi before the fight between Eleanor Coronado and the only girl with whom she fought, Joe Manfredi could not have entered the patio for the first time after the fight between this witness and the other girl. If Joe Manfredi just walked into the patio to see what was going on, he was not brought in by some other boys who were hitting him in the stomach at that time. If Parra took his wife and left the patio by the gate immediately after the fight between her and Eleanor Coronado, he could not have chased and stabbed Joe Manfredi in the passage between the kitchen and bunkhouse, after that fight between the girls. Their testimony is in further conflict as to the uninvited guests at the party, Eleanor Coronado saying that some eight or eleven boys from Downey had been hanging around the patio gate, and that two of them had entered the patio; gone toward the kitchen and demanded beer; that she had followed them expecting trouble, and one of the boys had threatened her father with an upraised chair, the other preventing trouble by taking him outside. While Eleanor Coronado did testify positively that she saw Parra stab Joe Manfredi, the questions and answers from her grand jury testimony read into this record, some of which are above quoted, show that, during her former testimony, she was just as positive that she had seen Henry Leyvas stab Manfredi. While her narrative to the grand jury is substantially the same as that given at the trial, nevertheless the identification of the actors as Henry Leyvas and Lorena Encinas in her former testimony and Ysmael and Delia Parra in her testimony at the trial is only explained by her as having been occasioned because her testimony was given before the grand jury “before I had seen the Parra girl.” To say the least, her testimony is therefore unsatisfactory and as well unconvincing. Manuel Reyes Coneededly, this defendant, 17 years of age, was one of the crowd of boys who visited “Sleepy Lagoon” early on the evening of August 1st when an attack was made upon them by the “boys from Downey.” He also was a member of the caravan that later made the trip to the Delgadillo premises. The only evidence against this defendant which we can find in the record is that given by Joe Manfredi, victim of the assault charged in count II of the indictment. After stating: “I am not going to name them for you, but I am going to ask them to stand up one at a time,” the district attorney, as each of the defendants arose, asked the witness Joe Manfredi if he recognized them. However, when the district attorney reached this defendant Reyes, he specifically called him by name, saying, “Now, then, Mr. Reyes will you stand, please? Do you recognize him?”, to which the witness answered, “Yes, I remember him— yes.” Later during the direct examination, when the district attorney asked appellant Reyes to stand, again calling him by name, the witness Manfredi said, “Well, I think he was walking in with the first group, I believe.” On the following day, while the witness Joe Manfredi was under cross-examination, he was asked to indicate the defendants he had seen on the early morning of August 2nd, whereupon he carefully looked overall of the defendants and pointed out the same defendants he had recognized on direct examination, save and except defendant Acosta and this appellant Reyes. For. the reasons set forth by us in connection with the testimony of this witness, Joe Manfredi, in narrating the testimony with reference to the defendant Parra, we are impressed that his testimony with reference to this defendant is just as unsatisfactory as was his identification testimony of and concerning appellant Parra. We find in the record no other testimony implicating this defendant in the offenses charged against him. A statement made by him to the officers, which he contended was elicited by force and violence, which coercion was denied by two police officers, did not in anywise implicate appellant Reyes as a participant in the commission of the crimes alleged in the indictment. A review of the evidence insofar as this defendant is concerned would indicate that he had “passed out” as a result of intoxication. In his statement, he implicated other co-defendants but, as hereinbefore stated, such testimony was inadmissible as against such codefendants; and as to appellant himself, his statement did not in anywise link him with the alleged crimes, for which reason it is unnecessary to here set forth in detail his statement. Notwithstanding the absence of any evidence that the appellant Reyes participated in any of the assaults, he was convicted of murder in the second degree and of both, counts of assault with a deadly weapon with intent to commit murder as charged in the indictment. Victor Thompson So far as any testimony involving this defendant in any assault is concerned, we feel it may safely be stated that none was presented. Joe Manfredi, a witness for the prosecution, testified that defendant Thompson was present on the night in question, but when asked whether it was in the “inclosed yard” of the Delgadillo property or somewhere outside, the witness testified that he “must have seen him outside.” Where, however, he could not say. Another prosecution witness, Marie Lola Delgadillo, testified specifically she did not see Thompson the night of August 1st. It will be recalled that both of these witnesses testified extensively as to what transpired in the patio, where the victims named in counts II and III claimed they were stabbed. The prosecution introduced evidence that this defendant was questioned by a deputy sheriff during the investigation of the altercation at the Delgadillo premises, at which time this defendant denied being present. The prosecution places much emphasis upon the falsity of this statement, which is established by testimony later given by this defendant before the grand jury, and which was read into evidence at the trial. However, when he was before the grand jury he was under oath, and he explains his denial to the officers of his presence at the Delgadillo home by saying that at the time he was on probation for violation of section 503 of the Vehicle Code, and did not therefore want to involve himself in any trouble. We have read the testimony given by this defendant before the grand jury and find therein nothing which tends to incriminate him. In fact his testimony may be epitomized by his statement that he “never touched anybody”; a statement which, so far as we can ascertain from the record, is undisputed by any admissible evidence. Neither through any identification, or any admission is this defendant connected with either the homicide or the assaults charged in the indictment. The verdicts as to this defendant found him guilty of murder in the second degree and of both of the assaults with intent to commit murder charged in the indictment. Henry Ynostroza The only testimony against this defendant was contained in claimed admissions he made in a statement which he gave to the officers and later in testimony given before the grand jury. Prom this statement and testimony, it appears that this defendant embarked upon the return trip to the “Lagoon” and Delgadillo home with the intent and purpose of aiding in “beating up them guys” who had previously attacked some of his codefendants. He then involves some of his codefendants in claimed fistic encounters with and assaults upon people at the Delgadillo home, but such testimony, of course, is not admissible against the named defendants. So far as any activities upon the part of this defendant is concerned, it may be summarized by his own statement that he struck a man with his fist. The identity of the man so struck is not established by the evidence, and certainly it cannot be said that it was either the deceased Diaz or Beyes or Manfredi, named as victims in the assaults charged in counts II and III of the indictment. While the evidence indicates that this defendant witnessed some assaults, there is no evidence that he was either armed or participated in any other than the just mentioned simple assault. He was convicted of murder in the second degree and of the two assaults with deadly weapons with intent to commit murder charged in counts II and III of the indictment. Gus Zammora So far as any specific evidence to connect this defendant with the homicide and assaults is concerned, it consists of statements made by him after his arrest to a deputy sheriff, taken down in shorthand and transcribed, together with his testimony given before the grand jury. Summarizing such statement and testimony, it appears that this defendant was at “Sleepy Lagoon” between 10:30 and 11 o’clock when the first fracas occurred between the so-called “Downey boys” and certain of these defendants. According to this defendant, following the altercation just referred to, “we got into the car and we went back” to 38th Street to secure reinforcements “to get those guys”; “to go back up there and have another fight.” He accompanied the returning caravan and the car in which he was riding stopped a little more than half way between the “Lagoon” and the Delgadillo house where he alighted and ran toward the house. He then makes certain statements incriminating some of his codefendants, but which were inadmissible as to them and did not involve himself. As an example of the prejudicial effect of these statements upon defendants against whom they were inadmissible, it might here be noted that in his extra-judicial statements or testimony before the grand jury, this defendant stated that, during the altercation at the Delgadillo home, he saw a woman kneeling beside a man lying in the road, and that she was pointing at the defendant Ruiz and kept shouting, “He done it,” This defendant stated that he was present “When Ruiz and several others” were beating a man in a brown and black suit; that when he got there the man was already lying on the ground” and that he “hit the man and he fell”; that he “swung” as the man was getting up but slipped in so doing. He denied throwing any rocks or having a knife or other weapon. So far as the admissible testimony against this defendant is concerned, it may be summarized by stating that he committed a simple assault upon someone, but who the victim of such assault was is not disclosed by the record. His testimony before the grand jury was practically the same as his statement to the officers and consisted in the main of testimony concerning the activities of codefendants which, under the correct ruling of the trial court, was inadmissible as to such defendants and, as we have heretofore pointed out, fails in anywise to specifically connect this defendant with the murder c