Opinion
Hearing Granted by Supreme Court March 14, 1929
Appeal from Superior Court, San Diego County; Shelley J. Higgins, Judge.
Ralph N. Post was convicted of manslaughter, and he appeals. Affirmed.
COUNSEL
Edgar B. Hervey, of San Diego, for appellant.
U.S. Webb, Atty. Gen., John L. Flynn, Deputy Atty. Gen., and John D. Richer, of Los Angeles, for the People.
OPINION
HOUSER, J.
On a charge of the commission by him of the crime of murder, defendant was convicted of the crime of manslaughter. He appeals from the judgment and the order denying his motion for a new trial.
From the evidence the jury would have been justified in concluding that, among other things, the following facts were established: Some time prior to the date on which the tragedy occurred which resulted in her death, the deceased and defendant (who was a married man) were illicitly living together as husband and wife. Although up to the time of her death defendant was frequently in the company of the deceased, the inference is strong that the deceased was endeavoring to discontinue her relationship with defendant, and that by reason thereof defendant was jealous of her and made various statements concerning her, such as, "She is trying to get away from me, but I will kill her. If I can’t have her, nobody else will." The evidence shows that on the day on which the homicide occurred, beginning as early as 10 o’clock a.m. thereof, and almost continuously thereafter until about 8 o’clock p.m. of that day, at which latter time the deceased met her death, the deceased and defendant were in each other’s company, during a considerable portion of which time they were riding together in an automobile operated by defendant; that while so engaged with defendant, and on at least two different occasions, the deceased indicated to third persons that she was being mistreated by defendant, and shouted, "Help! help! he is killing me." At that time blood was seen by such persons on the left side of the face and on the bare legs of the deceased. Within a few minutes thereafter defendant drove the automobile onto a pier in San Diego bay, the lights of the automobile were "switched off," and the automobile went over the side of the pier into about 35 or 40 feet of water. Defendant was rescued, but the body of his woman companion was not recovered until some 45 minutes later, at which time life was extinct. Physical examination of the deceased showed "a severe bruise around the left eye *** about four inches in diameter; *** laceration on the back of the scalp and more marked bruises on the body; *** slight blood clot under dura mater; and fine pinpoint hemorrhages throughout brain." The lungs were completely filled with water. In the opinion of three doctors the woman was unconscious at the time the automobile went into the bay.
The defense consisted of a specific denial of each of the foregoing incriminating facts. Defendant testified that immediately preceding the accident, as the auto approached the edge of the pier, "it struck something or dropped; and that apparently scared Mrs. Simpson; she frantically grabbed the steering wheel with both hands very forcibly, and before I had time to do anything at all we were going over the edge of the pier."
The first point presented by appellant is that, since "the prosecution’s evidence proved murder or nothing," the evidence was insufficient to support a verdict of manslaughter. The authorities of this state are to the contrary, and generally to the effect that where the evidence is sufficient to sustain a conviction of the crime of murder, the defendant has no grounds for complaining that the jury returned a verdict for a lesser offense. People v. Muhlner, 115 Cal. 303, 47 P. 128; People v. Huntington, 8 Cal.App. 612, 97 P. 760; People v. Cyty, 11 Cal.App. 702, 106 P. 257; People v. Herges, 14 Cal.App. 273, 111 P. 624; People v. Cramley, 23 Cal.App. 340, 138 P. 123; People v. Kelley, 24 Cal.App. 54, 140 P. 302; People v. Tugwell, 32 Cal.App. 520, 163 P. 508; People v. Hamilton, 49 Cal.App. 30, 192 P. 467.
Appellant complains of an instruction given by the court to the jury at the request of the prosecution which contained the following statement of the law: "*** The true rule is that the jury must decide whether or not the circumstances are in fact reasonably consistent with any other conclusion than defendant’s guilt and sufficiently so to raise a reasonable doubt of his guilt. ***"
It is urged that the meaning to be attributed to such language is that before defendant could be acquitted by reason of facts or circumstances which apparently were consistent with his innocence, such facts and circumstances must be of sufficient weight "to raise a reasonable doubt of his guilt."
In other instructions to the jury the law was emphasized that the accused should be found not guilty unless the fact of his guilt were proven beyond every reasonable doubt, exclusive of every reasonable hypothesis of his innocence. In still further instructions the point was repeated that under no circumstances could defendant be convicted unless his guilt were established beyond a reasonable doubt. It is therefore clear that the ambiguity (if any reasonably could be said to exist) in the language of the criticised instruction was corrected so that no possible harm resulted to defendant by reason of the language to which attention has been directed.
Appellant also attacks the following instruction given by the court to the jury: "You are instructed that up to the moment when the killing is proved the prosecution must make out its case beyond any reasonable doubt. When the killing is proved, it devolves upon the defendant to show any circumstances in mitigation to excuse or justify by a preponderance of evidence on his part. That is, the killing being proved, the defendant must make out his case in mitigation to excuse or justify by some proof stronger in some appreciable degree than the proof of the prosecution. The burden of proof changes. It must be in some degree, no matter how small, stronger than the proof of the prosecution on the other side."
On the ground that such an instruction requires the defendant to establish his defense by a preponderance of the evidence and is in opposition to and inconsistent with the general rule of law to the effect that the defendant is entitled to an acquittal if by the evidence a reasonable doubt is raised as to his guilt, it has been condemned and held prejudicially erroneous in each of the following cases: People v. Bushton, 80 Cal. 160, 22 P. 127, 549; People v. Elliott, 80 Cal. 296, 22 P. 207; People v. Roe, 189 Cal. 548, 209 P. 560. Section 1105 of the Penal Code is the basis for the instruction in question. With the exception that the statute is lacking in any requirement as to the quantum of proof, the principle of law announced in the questioned instruction appears to be similar to that provided by the statute. But on consideration of the instruction it will be noticed that its provision is that "when the killing is proved, it devolves upon the defendant to show any circumstances in mitigation," or which will either "excuse" or "justify" the act. Necessarily, such defenses presuppose either the actual or the inferential admission by the defendant of the fact that he did the killing. If he deny the homicide, nothing is presented upon which the words of the statute may operate so far as the defendant is concerned. As to any act committed by him, there is nothing to "mitigate" or "excuse" or "justify."
In the instant case it will be remembered that the position assumed by defendant was that he was in nowise responsible for the tragedy; that he was neither negligent nor culpable with relation to the death of the woman who was riding with him in the automobile; and that she caused her own death by "frantically" grabbing the steering wheel of the automobile and causing it to run off the pier into the deep water of the bay. It is thus made manifest that the defensive theory advanced by defendant was wholly inconsistent with either "mitigation," by the operation of which a lesser verdict than murder in either the first or the second degree might be anticipated, or with either the statutory "excuse" or "justification" for the homicide— from which it inevitably results that neither the provision of the statute nor the instruction in question had any application to the situation presented by the evidence.
In the case of People v. Miller, 177 Cal. 404, 170 P. 817, where the defendant was accused of the crime of murder, and where he offered no evidence in his defense, an instruction was given to the jury to the effect that: "When the killing is proved it devolves upon the defendant to show any circumstances in mitigation to excuse or justify the homicide by evidence on his part." It was held that: "*** While inapplicable to the case for the reason that no circumstances of mitigation or excuse are shown or even suggested, the defense being a denial of the killing by the accused, no possible injury therefrom could result to defendant." Likewise, in People v. Tapia, 131 Cal. 647, 63 P. 1001, an instruction similar in many respects to the instruction here under consideration (but also containing additional objectionable matter) was held inapplicable— the court saying that the part thereof taken from section 1105 of the Penal Code, to which reference has been had herein, "is applicable only when a defendant sets up circumstances of mitigation, excuse, or justification of an admitted or proved homicide." To the same effect is People v. Roe, 189 Cal. 548, 209 P. 560.
The inapplicability of the attacked instruction to the situation here presented being thus established, its effect, if any, upon the rights of defendant, remains for consideration. As hereinbefore noted, on the authority of People v. Tapia, 131 Cal. 647, 63 P. 1001, the case of People v. Miller, 177 Cal. 404, 409, 170 P. 817, is direct authority that in such circumstances "no possible injury" could result to defendant from the giving of such instruction.
The judgment and the order denying the motion for a new trial are affirmed.
We concur: CONREY, P.J.; YORK, J.