
    [Crim. No. 611.
    Third Appellate District.
    June 2, 1922.]
    THE PEOPLE, Respondent, v. YGNASIO NAVARETTE, Appellant.
    
       Criminal Law—Murder—Commission by Dependant—Evidence. In this prosecution, in which the defendant was convicted of the crime of murder of the second degree, the evidence was clearly sufficient to show that the defendant fired the fatal shot.
    APPEAL from a judgment of the Superior Court of Sacramento County. C. P. Vicini, Judge Presiding. Affirmed.
    The facts are stated in the opinion of the court.
    P. H. Johnson and M. A. Thomas for Appellant.
    U. S. Webb, Attorney-General, and J. Charles Jones, Deputy Attorney-General, for Respondent.
   FINCH, P. J.

The defendant appeals from the judgment of conviction of the crime of murder of the second degree and the order denying his motion for a new trial.

The defendant and four other Mexicans and three white men were riding at night, without authority or permission, in an open freight-ear, known as a gondola car, attached to a Southern Pacific train. A brakeman ordered the Mexicans to leave the train, saying the white men might remain. The train was moving at a speed of about six miles an hour in a southerly direction. The white men and one of the Mexicans were at the west side of the car and the other Mexicans at the front. At the time of the shooting the brakeman was standing in the center of the car. Two of the white men testified that when the brakeman ordered the Mexicans to leave, those in the front of the car moved toward the rear past the brakeman but that the one on the west side with the white men did not change his position; that the brakeman then fired a shot over the head of the Mexican who had refused to move, whereupon one of the Mexicans who were moving toward the rear shot the brakeman from a distance of four to six feet away, and that at the time the brakeman was facing the rear end of the car. The bullet entered the right side three inches above the hip bone and ranged slightly backward to the left side, causing death. Alexander Verdugo, one of the Mexicans, testified that the Mexicans were in the front of the car at the time of the shooting; that the brakeman shot twice over the head of the Mexican who was at the west side of the car, and that thereupon the defendant shot the brakeman; that he saw the defendant fire the shot which killed the brakeman; that the witness and the defendant immediately jumped off the car and left together; that as they were walking away the defendant said he had shot the brakeman and hoped he would die; that the defendant said: “I wish I had some Mexican to give the gun to,” and then threw the gun away. The defendant testified that he did not shoot the brakeman and did not know who shot him.

The only ground urged for a reversal is that the evidence is insufficient to show that the defendant fired the fatal shot. The evidence is so clearly sufficient that any further discussion of the matter would be superfluous.

The judgment and order are affirmed.

Hart, J., and Burnett, J., concurred.  