Opinion
Rehearing Denied July 2, 1964.
Erling J. Hovden, Public Defender, and John M. Moore and James L. McCormick, Deputy Public Defenders, for defendant and appellant.
Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Paul N. Wenger, Deputy Atty. Gen., for plaintiff and respondent.
KINGSLEY, Justice.
Defendant Joyce Marie Forbs, was charged by information with the crime of murder, in violation of section 187 of the Penal Code. Defendant pleaded not guilty and subsequently entered an additional plea of not guilty by reason of insanity. Two doctors were appointed to examine defendant pursuant to section 1027 of the Penal Code. After the examination, defendant withdrew her plea of not guilty by reason of insanity, and was tried by a jury on her plea of not guilty. Defendant was found guilty of voluntary manslaughter, her motion for a new trial was denied, probation was denied, and she was sentenced to the state prison for the term prescribed by law. This appeal is prosecuted from the judgment of conviction.
The facts leading up to and pertaining to the alleged murder are not in dispute, and may be briefly summarized as follows: Defendant is the mother of five children, and the mother of decedent, John L. Forbs, Jr., also known as 'Bubbles' or 'Bubba.' At the time of his death, the decedent was two and one-half years old. Defendant and her husband has separated shortly after the deceased was born. Apparently, the separation occurred after Mr. Forbs had administered a severe beating on defendant. The parents later fought over custody of decedent, with defendant ultimately gaining control.
On the date of the death of decedent (November 1, 1962) and immediately prior to that date, defendant resided with her five children in a housing project located at 1442 East 115th Street in the City of Los Angeles. During this time the family was receiving its support from the Bureau of Public Assistance.
During the several weeks immediately preceding his death, decedent received approximately thirty injuries or groups of injuries on virtually all parts of his head and body. Most of these injuries were admittedly caused by defendant's whipping the decedent hard with a belt. Evidence introduced at trial showed that defendant had stated on occasion that she didn't like decedent because she did not like his father. Evidence was also introduced that she had struck the decedent on the head with a broomstick, and on occasion had tied the child to the bed post to keep him from misbehaving.
On or about October 24, 1962, decedent, along with some of defendant's other young children, was climbing a cabinet in the kitchen where defendant kept her soap and Purex. Defendant removed the children from the shelves and left the kitchen followed by decedent. Defendant then suddenly turned around and struck decedent in the face or on the head with her right hand. The blow knocked decedent backward two or two and a half feet, causing his head to strike a table top that was at the same height decedent's head would be when he was standing normally erect. Due to the While some of the evidence as to defendant's attitude toward decedent, and as to her administration of beatings, rests on testimony of other persons (including the testimony of the autopsy surgeon hereinafter discussed), the evidence as to the blow which sent decedent reeling into the table, causing the head injury from which death ultimately resulted, comes only from her own statement, made to the police and hereinafter discussed.
I
Defendant's first contention is that the corpus delicti of felonious homicide was not proved before her extrajudicial statements were admitted.
In considering this contention two rules must be borne in mind: First, the evidence need show only that homicide in some degree has been committed; it is not necessary, at the stage of proceedings now under consideration, to prove any particular degree or kind of felonious homicide. The corpus delicti for felonious homicide consists of but two elements, to wit: The death of the alleged victim and the existence of some criminal agency as the cause of death. Either or both of these elements may be proved circumstantially or inferentially. (People v. Amaya (1952) 40 Cal.2d 70, 251 P.2d 324; People v. Cullen (1951) 37 Cal.2d 614, 234 P.2d 1.)
Secondly, insofar as the degree of proof of the corpus delicti is concerned, a distinction must be made as to the sufficiency of the evidence to support a conviction and the sufficiency to permit the admission of extrajudicial declarations of defendant. The proof of the corpus delicti as a foundation for the extrajudicial declarations of the defendant need not be established beyond a reasonable doubt. A slight or prima facie showing that the decedent met death by the criminal agency of another is all that is required. (People v. Duncan (1959) 51 Cal.2d 523, 528, 334 P.2d 858; Ureta v. Superior Court (1962) 199 Cal.App.2d 672, 675, 18 Cal.Rptr. 873.) Once this is extablished, defendant's extrajudicial statements are then admissible and are given their full evidentiary force. (People v. McMonigle (1947) 29 Cal.2d 730, 177 P.2d 745.)
With the foregoing rule in mind, we now examine the evidence as to whether or not a slight or prima facie showing was made by the People so as to allow the extrajudicial statements of defendant to be admitted into evidence.
Kenneth Chapman, a medical examiner for the Los Angeles Coroner's office, testified that he had performed an autopsy upon the deceased child and was of the opinion that death was caused by a brain hemorrhage due to trauma or a sharp blow to the back of the child's head, and that the injury causing death was estimated to have occurred approximately one to three weeks prior to death. Mr. Chapman also testified that there were numerous other abrasions, scars and bruises on the body, most of them crusted over, showing that they were at least a few days old, and that some of the bruises were as recent as the bruise on the back of the child's head which resulted in the death of the child. Mr. Chapman was also of the opinion that, while some of the bruises on the child's body could have been self-inflicted and others caused by trauma as distinguished from a blow by another human being, he was of the opinion that, when all of the bruises, scars and marks were taken together, they were inflicted by blows from another person. We believe that the testimony of Mr. Chapman does not leave open to dispute the sufficiency of the preliminary proof of the corpus delicti to permit the admission into evidence of defendant's extrajudicial statements. The testimony of Mr. Chapman clearly showed that the scars and bruises on the child's head and body would not have been self-inflicted, and that some of the bruises were as old as the death-causing bruise. From this it reasonably can be inferred, taking the total picture of the injuries, that in all probability the deathcausing bruise was caused by a blow inflicted by some person and such occurred during an overly severe beating of the child. It must also be remembered that, at this point, it is unnecessary to connect defendant with the perpetration of the crime. (People v. Amaya, supra, (1952) 40 Cal.2d 70, 251 P.2d 324; People v. Cullen, supra, (1951) 37 Cal.2d 614, 234 P.2d 1.)
II
Defendant's second contention is that the evidence was not sufficient to support the verdict of voluntary manslaughter.
It was the theory of the prosecution either (a) that death resulted from acts of defendant, done without an express intent to kill, but with such conscious disregard of the consequences of her acts as to amount to implied malice, as that term is defined in section 188 of the Penal Code, namely: '[Malice] is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.'; or (b) that death resulted, again without an express intent to kill, but as a result of the wilful infliction on the child of cruel and inhuman corporal punishment, which acts, being a felony (Pen.Code, § 273d), would make the resulting death murder in the second degree. In support of these theories, the prosecution points to the evidence: of defendant's expressed dislike of decedent; of the repeated blows and whippings, resulting in the scars and wounds found by the surgeon; of the blow which caused the fatal injury; and of the failure to seek medical care after that blow and the immediate unconscious condition which followed. Had the jury agreed with the prosecution, and returned a verdict of murder in the second degree, there could have been no doubt but that such a verdict would have found ample support in the record.
But, by its verdict, the jury rejected both of the above theories and, inferentially, has found that defendant was without malice and that her corporal punishment of decedent was not so cruel and inhuman as to amount to a felonious beating. This being so, it is also true that, had the jury returned a verdict of involuntary manslaughter, such a verdict would have been supported by ample evidence. On the evidence before it, the jury could have found that death resulted from excessive acts of corporal punishment, amounting to a misdemeanor under section 273a of the Penal Code even if not of such a degree of cruelty as to amount to a felony in violation of section 273d. But, again, the jury did not return such a verdict.
We face then the question: Did the evidence support the verdict as actually returned, namely of voluntary manslaughter? Manslaughter, whether voluntary or involuntary, is defined as 'the unlawful killing of a human being without malice.' (Pen.Code, § 192.) Voluntary manslaughter has been defined as death resulting from of wilful act characterized by the presence of an intent to kill engendered by sufficient provocation and by an absence of malice aforethought. (People v. Bridgehouse (1956) 47 Cal.2d 406, 303 P.2d 1018; People v. Domingo (1962) 210 Cal.App.2d 120, 26 Cal.Rptr. 315; People v. Taylor (1961) 197 Cal.App.2d 372, 17 Cal.Rptr. 233.) On the evidence before it, the jury could have found that the act or course of conduct causing death was wilful, and that it was done in the heat of passion engendered by decedent's repeated acts of disobedience culminating in his intermeddling with as potentially dangerous a substance as Purex. While a finding that this was a 'sufficient' provocation would People v. Miller
As far as we can determine, the People did not contend in the trial court that an intent to kill actually existed, nor do they make such contention here. They argue only that the evidence showed implied malice. But the error in this approach lies in a failure to recognize that, while wanton misconduct may evidence implied malice, and while implied malice is, by virtue of section 188 of the Penal Code, a legally sufficient equivalent for an express intent to kill in cases of murder, such a state of mind is not a basis for finding express intent except in cases where the probability of death from the defendant's act or course of conduct, is so clear as to permit the invocation of the statutory presumption that 'a person intends the ordinary consequences of his voluntary act;' (Code of Civ.Proc., § 1963, subd. 3).
The People point to cases wherein it has been said that voluntary manslaughter is a necessarily included offense in every case of murder. As a matter of pleading, that statement is true. An allegation of murder is an allegation of a killing 'with malice aforethought,' and with either express or implied malice; patently, such an allegation necessarily includes an allegation of a killing without malice, and either with or without an express intent to kill. The due process requirement of notice is thus satisfied, and a defendant cannot complain that he was convicted of a crime not charged. But this argument loses sight of the fact that, not only must a defendant be charged with the crime of which he is convicted, but that, no matter how heinous his conduct, he must also be proven guilty of the crime of which convicted. Instructions should not be given, nor verdicts returned, on lesser offenses, unless the evidence in the particular case raises issues as to the existence of the lesser offense. While it has been stated that a defendant may not complain of a verdict of an offense less than that shown to have been committed by him (People v. Powell (1949) 34 Cal.2d 196, 208 P.2d 974), this rule applies only where, because the evidence does also prove the lesser offense, no prejudice has resulted.
Since, as we point out below, the case must be retried in any event, it is not necessary for us now to decide whether, in a case in which (unlike People v. Alexander (1923) 62 Cal.App. 306, 216 P. 968, where a single blow was struck under circumstances showing a clear risk of death), no single act was sufficient to invoke the presumption of intent, the totality of defendant's conduct would justify a jury in finding actual intent. On any retrial, the parties can direct their attention with particularity to the issue of express intent and can argue that essential element.
III
Defendant next contends that the trial court committed reversible error by admitting seven black and white photographs of the deceased at the time of autopsy, because these photographs were of no assistance to the jury and only served to inflame their emotions and prejudices. We have examined the photographs. In our opinion they had substantial probative value, sufficient to outweigh any possible prejudicial effect. They were, therefore, admissible. (People v. Ditson (1962) 57 Cal.2d 415, 20 Cal.Rptr. 165, 369 P.2d 714; People v. Carter (1957) 48 Cal.2d 737, 312 P.2d 665.) The photographs graphically depicted the various bruises, scars and marks on the decedent's head and body, as well as the bruise that had caused the decedent's death. These photographs served a very useful function in aiding the jury in both understanding In People v. Ford (1964) 60 A.C. 762, 790-791, 36 Cal.Rptr. 620, 388 P.2d 892, the court was of the opinion that prejudicial error occurs when a court fails to weigh the probative value of gruesome and inflammatory photographs against the danger of prejudice to the defendant through needless arousal of the passions of the jurors. Such is not the case here. It affirmatively appears from the face of the record herein that the trial judge, before allowing the photographs into evidence, weighed their probative value against the danger of prejudice to defendant through needless arousal of the passions of the jurors.
IV
Defendant next contends that in the recorded conversation between her and the investigating police officers, several statements were made which indicated that certain promises and threats were made as inducements for the statement ultimately given by her, and therefore that her statement was involuntary and inadmissible. (People v. Ditson, supra, (1962) 57 Cal.2d 415, 20 Cal.Rptr. 165, 369 P.2d 714.) Assuming without deciding that the statement given by defendant was a confession rather than an admission, such was given voluntarily. We have carefully examined the transcript of the recorded conversation; defendant's allegation that her statements were improperly induced is at variance with the facts of the interrogation. The statements made by the police officers, taken in their proper context, amount to no more than an exhortation that defendant tell the truth.
An admission of fact or a declaration, unlike a confession, does not depend for its admissibility on, or require preliminary proof of, its being voluntarily made without compulsion or improper influence. (People v. Garcia (1954) 124 Cal.App.2d 822, 269 P.2d 673.)
V
Defendant also contends that the failure of the trial court to give full and adequate instructions on the law of excusable homicide deprived her of a fair trial and constituted reversible error.
The trial court gave the standard CALJIC No. 320 instruction on excusable homicide. However, CALJIC No. 320 is phrased solely in terms of the second subdivision of section 195 of the Penal Code and makes no reference to excusable homicide as contained in section 195, subdivision (1) of the Penal Code which in terms is designed to protect a parent or guardian who, by accident or misfortune, commits a homicide in lawfully correcting a child.
CALJIC No. 320 reads as follows:
In the present case, defendant's sole defense was her contention that death had resulted, accidentally, as a result of legitimate correction and discipline of her son. A jury cannot, without proper instruction, be expected to remember that the 'lawful correction of a child' may involve an act which, in fact, is serious enough to cause death. It is now the settled law of this state that a defendant is entitled to instructions on his theory of the case, as disclosed by the record, no matter how weak such evidence may be. (People v. Modesto (1963) 59 Cal.2d 722, 31 Cal.Rptr. 225, 382 P.2d 33.) Furthermore, it is the duty of the People v. Chavez
Under these cases, it was reversible error in this case to give an instruction on excusable homicide based solely on the second subdivision of section 195 of the Penal Code and to omit language based on the first subdivision of that section.
The judgment is reversed.
BURKE, P.J., and JEFFERSON, J., concur.
'The killing of a human being is excusable and not unlawful when committed by accident and misfortune in doing any lawful act by lawful means and without any unlawful intent and where the person causing the death acted with that care and caution which would be exercised by the ordinarily careful and prudent individual under like circumstances.
'Excusable homicide is distinguished from felonious homicide in that to be excusable the killing of the human being must have been by both accident and misfortune. Even though the death was accidental and may not have been intended and was not anticipated, the homicide will not be excused if it was caused by an unlawful act, or by the doing of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.'