People v. Tipton

• Decision Date: 19 April 1957
• Docket Number: Cr. 5961
• Court: California Supreme Court
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. John Calvin TIPTON, Defendant and Appellant.

Page 813

309 P.2d 813

48 Cal.2d 389

The PEOPLE of the State of California, Plaintiff and Respondent, v. John Calvin TIPTON, Defendant and Appellant.

Cr. 5961.

Supreme Court of California, In Bank.

April 19, 1957.

Rehearing Denied May 15, 1957.

James F. Thacher, San Francisco, under appointment by Supreme Court, for appellant.

Edmund G. Brown, Atty. Gen., and Elizabeth Miller, Deputy Atty. Gen., for respondent.

SHENK, Justice.

This is an appeal by the defendant John Calvin Tipton from a judgment of conviction and from an order denying his motion for a new trial. He was charged by information with the murder of Oletta Camille Johnson. The jury found him guilty of murder of the first degree and the death penalty was imposed.

There is no dispute as to the facts surrounding the commission of the crime. Prior to trial the defendant made three recorded confessions, each consistent with the others. At the trial he testified that the confessions were substantially correct. It appears from his confessions and his testimony that he resided alone in cabin No. 1 of an apartment court in Costa Mesa; that Mrs. Johnson resided across the court from him in cabin No. 11 with her soldier husband; that on March 28, 1956, the defendant had spent the day and evening drinking beer in a local tavern; that he arrived at his cabin about 11:00 p.m.; that he removed his clothing except his shorts and sat on his bed thinking about 'sex'; that he had noticed Mrs. Johnson in the courtyard previously; that he obtained a large knife from his kitchen and concealing it in his shorts, crossed the courtyard to Mrs. Johnson's cabin and knocked on the door; that it was his intention to obtain sexual satisfaction by force if necessary; that when Mrs. Johnson opened the door he pushed his way inside the apartment; that she ordered him to go away and when he refused she became frightened and ran into the bedroom; that he followed her in, threw her on the bed, placed a pillow over her face and stabbed her in the chest with the kitchen knife; that she thereupon ceased to struggle; that he cut and tore her pajamas from her body and then committed thereon an act of sexual intercourse.

Mrs. Johnson's corpse was discovered by her husband shortly after midnight when he returned from guard duty at a nearby military base. Her death was due to perforations of the heart and lung, and occurred within a few minutes after she was stabbed.

At the trial the defendant was represented by the public defender. He pleaded not guilty and not guilty by reason of insanity. After the jury returned its verdict of guilty as charged the defendant waived a trial by jury on the plea of insanity. Expert witnesses for both the prosecution and the defense testified that the defendant was legally sane at the time of the offense and the court so found.

There is no doubt but that the defendant's conduct constituted murder of the first degree, as a 'wilful, deliberate, and premeditated killing,' or one 'committed in the perpetration or attempt to perpetrate * * * rape * * *.' Pen.Code, § 189.

It is contended by the defendant that the court committed prejudicial error by instructing the jury as follows: 'The law of this state provides that every person guilty of murder in the first degree shall suffer death or confinement in the state prison for life, at the discretion of the jury that finds him guilty. If you should find the defendant guilty of murder in the first degree, it will be your duty to determine which of the two penalties shall be inflicted, the death penalty or confinement in the state prison for life. If you should fix the penalty as confinement in the state prison for life, you will so indicate in your verdict, using a form that will be handed to you when you retire to deliberate, but if you should fix the penalty as death, you will not specify the death penalty in the verdict, and you will say nothing about punishment in the verdict. In determining which punishment shall be inflicted, you are entirely free to act according to your own judgment.'

The defendant himself requested an instruction in the same language as the foregoing. The theory on which he now claims that the instruction was prejudicial is that section 190 of the Penal Code makes it the function and responsibility of the jury to select and to designate in its verdict which of the two punishments prescribed by that section shall be imposed in a given case; that by failing to expressly designate a particular penalty, the function is removed from the jury and conferred on the court, and that the court is not competent to fix the penalty.

The defendant's contention is not new. The instruction has been approved on numerous occasions but not without criticism and recommendations that it be not given. People v. Friend, 47 Cal.2d 749, 306 P.2d 463; People v. Brust, 47 Cal.2d 776, 306 P.2d 480; People v. Bollinger, 196 Cal. 191, 204-205, 237 P. 25. However, the instruction in and of itself has never been held to be erroneous. See People v. Crooker, 47 Cal.2d 348, 303 P.2d 753 (tried before our decisions in the Friend and Brust cases) and cases therein cited. And when as in the Bru...