Opinion
Rehearing Denied March 3, 1964.
For Opinion on Hearing, see 39 Cal.Rptr. 209, 393 P.2d 409.
Bruce Weathers, San Diego, under appointment by the District Court of Appeal, for defendant and appellant.
Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Gilbert F. Nelson, Deputy Atty. Gen., for defendant and appellant.
GRIFFIN, Presiding Justice.
Defendant-appellant was charged with and convicted on two counts of murder. One involved the death of Alys Tuttle and one the death of Ernie Mitchell. The jury fixed the degree at second degree on both counts. A motion for new trial was denied and defendant was sentenced to concurrent terms in the state prison. He filed his appeal in propria persona and also filed an opening brief on July 9, 1963. Thereafter, he requested that counsel be appointed to represent him on this appeal. This court appointed counsel who appeared for him at the trial and counsel filed a closing brief.
Defendant, a retired navy chief, was living in San Diego and courting Alys Tuttle, one of the victims. She was living with one Max Navarro. Apparently, defendant accepted this relationship and was on friendly terms with both Alys and Max. Defendant planned to help Alys obtain a divorce from her husband and then he was going to marry her himself. There is some indication that Alys was taking advantage of the fact that both the defendant and Max liked her and was playing them one against the other. She was something of a drinker and she and defendant often drank together. Defendant testified that on February 2, 1963, he went to the San Diego Sears store and made a payment on his bill; that while there he bought a Mauser seven millimeter military rifle to hunt deer; that he bought at the same time a box of ammunition of a type not suitable for deer hunting. He loaded the gun, rewrapped it and put it in his car, where it remained until February 7, the day of the killings. On February 7 he took a bottle of whiskey to the cottage where Alys and Max lived. Max was away at work, but Alys was visited by Ernie Mitchell. Since both Alys and Ernie were killed, only defendant's version of what took place inside the cottage is known. Defendant said that Alys told him that she had been to Ernie's home and that it was beautiful, and so she took him to her kitchen to demonstrate to him how shamefully she was living; that as they proceeded to the kitchen, defendant stated that he would go out and obtain the gun that he had just bought and would show it to them; that Alys said 'Oh, okay'; that defendant went to the car, obtained the gun and took it into the cottage where he began to unwrap it; that while he was doing this, the gun discharged and a bullet passed through the bodies of Alys and Ernie, killing them.
Defendant testified that he rewrapped the gun, put it back in the car and went to the home of his step-daughter, Shirley Wood, where he went into the bedroom alone and wrote the following note:
'Dear Shirley and Winston:
'Everything I have is yours. Alys is dead, please take care of me.
'Clyde'
Defendant then shot himself under the chin as he lay on the bed. He was taken to the Naval Hospital and survived the wound.
The trigger on the rifle required five pounds of pull to release the firing mechanism and had a safety catch which defendant said was not on at the time of the killings.
The main contention urged by defendant in his opening brief is that the evidence is not sufficient to support the jury finding of second degree murder and that counsel appointed to represent him at the trial did not put forth his best efforts in defendant's defense.
The jury was faced with the necessity of deciding how much credence to place in defendant's testimony that the discharge of the gun was accidental. The jury chose not to believe his explanation, but instead found that defendant caused the deaths of Alys and Ernie and that defendant was guilty of second degree murder. It is claimed by the Attorney General that there had previously been conduct on the defendant's part from which it could be inferred that he had a temper and could be upset by conduct of Alys which indicated a lack of any intent to marry him. Counsel for the defendant, appointed by this court, filed a reply brief, raising new points: (1) that the court erred, prior to taking testimony, in refusing to accept defendant's stipulation as to the physical facts of the homicide and thereafter refusing to limit the People's evidence to the single remaining issue, that of intent or lack of intent to kill; (2) that particular objection was made to the receipt into evidence of and in refusing a certain proposed instruction victims; (3) that the court erred in refusing to poll the jury as to their knowledge of certain newspaper articles during the trial and in refusing a certain proposed indtruction thereon submitted by counsel for defendant during the trial; (4) that the court erred in refusing to define for the jury, after being requested to do so, the phrase 'abandoned and malignant heart'; and (5) that the court erred in refusing evidence as to defendant's state of mind or intent in regard to the rifle at the time of its purchase on February 2, 1963, approximately five days prior to the shooting. Defendant's counsel has also made a motion under Rule 23 of the Rules on Appeal to have this court receive in evidence on appeal a photo-copy of a newspaper article published during the trial.
The evidence produced constitutes three volumes of testimony. Much of this pertains to testimony and circumstances surrounding the killings and bears upon the possible intent of the defendant.
Max Navarro, with whom Alys, who was in her early thirties, had been living, testified generally that defendant, aged 55, 5 feet 6 1/2 inches tall, knew Alys before he did; that defendant continued to call at their home and would often be there when he was working; that he often told defendant to stay away and not be there with Alys while he was not there; that defendant told him he was in love with Alys and it was 'one of those things' and he couldn't help it. Defendant admitted on the witness stand that he was having sexual relations with Alys during this period. Max also testified that he told Alys also, on several occasions, about this and that he disapproved of it, but that defendant would come there and the two of them would get drunk all the time. Apparently Max would strike Alys and bruise her on occasions and she would go over to defendant's cottage and stay with him for a few days and then return to Max. Alys told Max that defendant was trying to get her to leave Max. Defendant admitted that he was doing this so that he could help her obtain a divorce from her husband and marry him and then maybe they could obtain custody of her children. Apparently Max introduced Alys to Ernie Mitchell, aged about 45, 6 feet 1/2 inch tall, weighing 170 pounds, and single. One week before his death, Ernie invited them to his apartment, which Alys described as being very beautiful and expressed a wish that she could so live. On one occasion defendant became very jealous because Alys was sitting on Max's lap.
Max testified that on February 7, the day of the killings, he talked to Ernie, who tended bar at his place of employment, and asked him to drive Alys from her home to the laundromat, and that Ernie said he would and left at about ten o'clock in the morning. Apparently defendant had the same arrangement with Alys to drive her to the laundromat. According to defendant's story, he went to the store to obtain some 'Oxydol' for the wash and on his return Ernie came to Alys' house and they went into the kitchen to observe her terrible kitchen and the view therefrom and to compare it with Ernie's apartment. (This may well have caused some jealousy on the part of defendant.) Defendant further testified that he went to his car to obtain the gun and show it to them; that on his return Alys and Ernie were looking out the window together and they turned and saw him with the rifle; that he unwrapped the rifle and in doing so it went off and a bullet struck Alys, going through her breast and through Ernie's abdomen and killing both of them. When apprehended by the police, defendant made a statement to the police officer. The officer testified that defendant Evidence by experts shows that the two deceased persons were standing close to each other (within two feet) and that the bullet entered from the front of Alys, striking her in the heart at a distance of 50 inches from the floor. The bullet passed through her body and entered Ernie's body 51 inches above the floor at about the same level, passing through his liver and right lower ribs. Thereafter, the bullet penetrated the adjoining wall at 5 feet 1/8 inch above the floor and punctured a copper hot water pipe, and then passed through to the kitchen of the next-door apartment where it was found on the floor. It was the opinion of the expert that the 'shooter' was standing on the same level with the victims and they were both facing him at the time the gun was fired from near the front door, a distance of about 14 to 16 feet away. There was no indication of powder burns on the victims' bodies.
Defendant and Alys had been drinking that morning from a bottle of whiskey brought by defendant. After her death, Alys had a blood alcohol content of 26%, indicating 10 to 12 ounces of whiskey in her bloodstream. Mitchell's test was negative. Defendant claimed that he was intoxicated.
A bread salesman came to the door that morning at about 9:30 and he later testified that Alys and defendant were there alone and that they did not appear to be drinking. After the shooting, defendant said that he rewrapped the gun, saw that the two were dead, and went to his car and drove over to his step-daughter's home. At about 11:28 a. m., a neighbor of Alys heard the sound of a gunshot, saw water running across the property and called the owner. After calling at the door and investigating, and getting no response, the owner obtained a key, unlocked the door, discovered the bodies in the kitchen and called the police.
Apparently defendant locked the door and closed the kitchen window before he left and took the key with him. The key was later found in his pocket. One neighbor noticed defendant leaving, carrying something from the house (the wrapped gun). The witness said that the defendant walked slowly and did not appear to stagger and that he drove away slowly and normally.
Defendant's step-daughter testified that defendant came to her home in his car with a rifle in one hand and a bag of laundry and a whiskey bottle with three or four ounces of whiskey in it in the other hand; that she asked how Alys was and defendant said 'all right'; that he threw the clothes down and asked for a piece of paper and a pencil; that he was impatient because she did not jump and get them for him; that he appeared to be intoxicated and went to the bathroom or to the bedroom and that a few minutes later she heard a shot fired and found him injured; that the note was found nearby and the gun was on the floor; that he was in the bed, bleeding badly. She testified that she knew Max Navarro and that defendant told her he did not like Max, saying he was 'ugly'; that defendant told her, in Alys' presence, that he was in love with Alys and didn't like the idea of her living with Max and he wanted her to live with him.
Another witness testified that she had lived next door to Alys and Max at another address on India Street and that on one occasion defendant came to see Alys when he was drunk; that he come next door to her, the witness' house where Alys was visiting and that Alys told her she did not want to see him; that Alys was nervous and would not admit defendant until Max came home; that in November 1962, the witness saw defendant pounding on Max and Alys' door and Max would not let him in, so defendant broke in the door and told Max that he loved Alys and wanted her, and she heard Max tell defendant to stay away.
A neighbor of Alys, about 11:00 a. m. on February 5, two days before the killings, On defendant's person was found a receipt indicating that defendant had purchased a rifle and a box of ammunition at a Sears store on February 2, 1963, five days before the shooting. Defendant admitted this and contended that he was going deer hunting and that he so told the clerk. The clerk told defendant that the ammunition he was buying was not for deer and defendant said he was going to also use it for target shooting. Defendant said after it was wrapped he took it to his car, unwrapped it, loaded it with five shells and then left them in the chamber because it was difficult to replace them in the box; that he rewrapped the rifle and placed it in his car and did not take it out until February 7.
One witness testified that the deer season did not open until September or October. Defendant said that he was going to get some venison because Alys was very fond of it.
Defendant argues that the judgment should be reduced to involuntary manslaughter under the evidence produced. This contention properly was refused by both the jury in its verdict and the trial court on motion for a new trial. Defendant's explanation of the killings was not accepted by the jury or the trial court.
It appears to us that the evidence and circumstances surrounding the killings and the showing of mixed emotions generated by defendant's relationship with Alys would justify the jury in believing that the physical evidence of the shooting showed malice. (People v. Wells, 10 Cal.2d 610, 76 P.2d 493; People v. Bender, 27 Cal.2d 164, 163 P.2d 8.) The jury chose not to believe defendant's explanation, and chose instead to believe that defendant intended, with an abandoned and malignant heart, to cause the death of Alys. (People v. Howard, 211 Cal. 322, 295 P. 333, 71 A.L.R. 1385; People v. Todd, 154 Cal.App.2d 601, 317 P.2d 40; People v. Watkins, 178 Cal.App.2d 41, 2 Cal.Rptr. 707.) Deliberate intent to kill is not an essential element of second degree murder. (People v. Valentine, 28 Cal.2d 121, 169 P.2d 1.)
Defendant's claim in his opening brief that his appointed trial counsel did not put forth his best efforts in his defense in the superior court totally lacks any evidentiary support. We have read the entire record. The defendant's rights were fully protected by the splendid manner in which the trial was conducted. Even the trial judge, on several occasions, in ruling on objections made by defendant's counsel, stated, 'Well, I commend counsel for the defendant in his diligence to protect all the rights of his client.' We see no merit to the claim. The same counsel appointed by this court on appeal has diligently presented all perceivable claims made and should be commended for his efforts on this appeal.
Counsel for defendant next argues that the trial court erred in refusing to compel the prosecution to accept his stipulation of certain facts which he said were uncontroverted and allow evidence only on the question of the intent of the defendant pertaining to the shooting, his argument being that a recitation of the detailed facts would prejudice the jury when the only question to be determined was the intent of the defendant. (Citing Fuentes v. Tucker, 31 Cal.2d 1, 187 P.2d 752; Armenta v. Churchill, 42 Cal.2d 448, 267 P.2d 303.) The question is completely answered in People v. Pollock, lock, 25 Cal.App.2d 440, 77 P.2d 885, where it was held that a district attorney is not bound to accept the offer of defendant's attorney in a criminal action to stipulate to certain facts.
Objection is next made to the admission into evidence of about 11 photographs of each of the decedents and color motion pictures made after the deaths, because they might well be classified as inflammatory in character and would greatly prejudice People v. Love,
People v. Burns, People v. Carter,The claim that the trial court erred in refusing to poll the jury during the trial after a certain article appeared in the newspaper respecting the trial of defendant is worthy of consideration. The jury had been selected and considerable evidence taken. The prosecution offered to prove by testimony of Max Navarro that Alys told him about two weeks before her death that defendant said to her when he had been drinking, 'Some of these days I will kill you' and she said, 'You are drunk * * *. You are nuts' and that he did not believe Alys took it seriously; that he heard her say that defendant said about the same thing again the Sunday before her death, that is, 'One of these days I will kill you. * * * I could kill you now'; that they didn't think he would do anything like that, and accordingly Alys was not in fear of her life, but within a week of the killing Navarro told defendant not to go to his house when he was not there. The trial court sustained the objection and ordered the jury to return and continued with the other evidence.
Apparently, newspaper reporters were in the courtroom listening to this offer of proof, which was rejected. A news article apparently appeared in the newspaper the next day, restating this testimony. No application was made to the trial judge to include the article as evidence before the trial court, but on appeal counsel for defendant moves this court to take additional testimony and admit into evidence the article, alleging that it might have been possible that one or more of the jurors read and heard discussed the article published in the newspaper and that the jury's verdict was influenced by it.
In this connection, it is alleged that this article was shown to the trial judge out of the presence of the jury, during the trial, and that no record was reported of this discussion; that subsequently defendant asked that the jury be polled to determine whether or not any of them had read the article. Apparently this request was denied and defendant then offered an instruction to be given to the jury to this effect:
'It has come to the attention of the Court that there have been accounts in the local newspapers of proceedings had in this case where matters of law and the admissibility of evidence was discussed by the Court and by Counsel at times when the Jury was not present; there has been an account given in local newspapers detailing certain evidence proposed to be introduced in this case by the District Attorney which evidence was found by the Court to be inadmissible.
'It is requested that the Court at this point poll the Jury to determine whether any of them saw or heard such a 'I do particularly now instruct you that you may not, and must not, consider as evidence, or consider for any purpose whatever, any matter coming to your attention in any way whatever excepting that matter presented as evidence here in court. Whether matter offered as evidence is admissible, is purely a question of law and you are not to be concerned with a reason or reasons for ruling it admissible or inadmissible, and you are not to draw any inference from such rulings. Suffice it to say that the standards of the law governing the admissibility of evidence relating to testing the reliability and the issue determining value of the offered evidence. [sic]'
This instruction was refused. Defendant claims error in this respect.
It appears that defendant moved for a new trial and argued the question of the possibility of the jurors' having read the article and being influenced thereby. The proper forum for the first determination of claimed error in this respect was in the trial court, and the offer here made to receive additional evidence in support of the motion for a new trial should have been made in the trial court where the trial court could consider the showing and rule upon it. The motion for a new trial was denied on May 22, 1963. The record before us does not indicate that the subject matter, i. e., copy of the newspaper publication sought here to be considered on a motion to take additional evidence, was there presented, or that the trial court abused its discretion in not granting a new trial after such showing. We do not feel inclined to take additional testimony and accept additional evidence in this court for the purpose of reversing the judgment, particularly where it could not be shown that any of the jurors read or knew of such publication. (Tupman v. Haberkern, 208 Cal. 256, 280 P. 970; Vol. 2 Stanbury, California Trial and Appellate Practice, § 1102, pp. 294-296; Code Civ.Proc. § 956a; Rule 23(b), California Rules of Court.) On the motion for new trial, the trial court inquired of counsel for defendant if he had any affidavit from any of the jurors that they read or were affected by the statements by the press, and counsel answered in the negative. The trial court told counsel that he had instructed the jury a number of times not to consider anything they read in the newspapers about the trial, and counsel for defendant conceded that the court had so instructed the jury. In Estate of Schluttig, 36 Cal.2d 416, 224 P.2d 695, it was held that the procedure authorized by Code of Civil Procedure, section 956a, permitting an appellate tribunal to take additional evidence and to make findings of fact, is not a substitute for a motion for a new trial upon the basis of newly discovered evidence (disapproving contrary implications in Estate of Culver, 81 Cal.App.2d 640, 184 P.2d 738).
We will therefore consider the proffered instruction requesting a poll of the jurors during the trial and pertaining to any such claimed knowledge. At the outset, the trial judge instructed the jury:
'I am sure you are all aware of the fact that the testimony upon which you must decide the guilt or innocence of this defendant must come from this witness stand or from the mouth of a witness at some other place where the court may be convened, or from some exhibit, but from no other source.'
Then the trial court said to the jury:
'* * * counsel in examining you on your qualifications asked you about reading the newspapers and what you knew about this case. Some judges request juries during the trial not to read newspaper articles or listen to radio news broadcasts or view television newscasts pertinent to the trial that they may be sitting on. I don't think As to the court's reaction about instructing the jurors not to read newspapers, see People v. Lessard, 58 Cal.2d 447, 25 Cal.Rptr. 78, 375 P.2d 46, where it was said that the reading by jurors of newspaper accounts of a trial in which they are engaged amounts to a violation of their duty and obligation and if such newspaper accounts would be at all likely to influence jurors in the performance of their duty, the act would constitute a ground for a motion for a new trial.
Thereafter, counsel questioned the jurors as to their qualifications and passed the jurors as examined. It was unfortunate that the news article which set forth the evidence that was rejected was published during the trial. The article did not indicate that this evidence was refused. However, we see no duty resting on the trial court, in addition to the instruction already given, to further purge the jurors, during the trial, upon the showing made and to further instruct them on the subject, particularly in the absence of evidence that the jurors did not heed the admonition of the trial court. (People v. Lessard, supra, 58 Cal.2d 447, 25 Cal.Rptr. 78, 375 P.2d 46; People v. Santo, 43 Cal.2d 319, 273 P.2d 249; People v. Gomez, 41 Cal.2d 150, 258 P.2d 825.) The instruction was properly refused.
The next complaint is that the trial court refused to instruct the jury, at its request, as to the meaning of 'abandoned and malignant heart' in connection with the instruction given as to the offense of second degree murder. The court previously gave several pages of general instructions on the crime of murder and its degrees. When the trial judge attempted to answer the jurors' question as to the meaning of 'abandoned and malignant heart,' it called the jurors' attention to the former instructions given and reiterated them in some detail. He defined in particular the elements of murder of the first degree as set forth in Penal Code, § 189, recited the definition contained therein, that all other kinds of murders are of the second degree, that:
'If you are satisfied beyond a reasonable doubt that the killing was unlawful, but you have a reasonable doubt whether the crime is murder or manslaughter, you must give the defendant the benefit of such doubt and find it to be manslaughter rather than murder.'
Manslaughter was fully defined. The trial judge informed the jury that the term 'abandoned and malignant heart' was included in the definitions given and if the jurors wanted an ordinary dictionary, he could send one to the jury room. The juror who propounded the question thanked the judge and the jury later returned with the verdicts as recorded. In People v. Zankich, 189 Cal.App.2d 54, 60, 11 Cal.Rptr. 115, the court gave the jury the definition set forth in Webster's New International Dictionary, second edition, as to the term 'abandoned and malignant heart.'
It was the trial court's opinion that the general instruction sufficiently apprised the jury of the definition of murder in the second degree and that further defining the phrase 'abandoned and malignant heart' was not required. We have reached the same conclusion.
Lastly, defendant complains that the trial court refused proffered testimony of a certain witness indicating that he and the defendant had previously, on December 31, 1962, discussed something about a rifle. This was prior to the purchase of the rifle in question. The argument was that the prosecutor claimed the purchase of the rifle involved was not for deer hunting but to commit the offenses charged. The prosecution did establish that the deer season would not open until September or October of that year and that the rifle was purchased on February 2, 1963. The killings took place on February 7, 1963. It is contended by defendant that these self-serving hearsay statements were admissible as tending Judgment affirmed. Attempted appeal from the order denying a new trial dismissed. Application to produce additional evidence denied.
COUGHLIN and GERALD BROWN, JJ., concur.