People v. Davis

• Decision Date: 07 December 1965
• Docket Number: Cr. 8061
• Citation: 63 Cal.2d 648,408 P.2d 129,47 Cal.Rptr. 801
• Court: California Supreme Court
• Parties: , 408 P.2d 129 The PEOPLE, Plaintiff and Respondent, v. Archie DAVIS, Defendant and Appellant.

Page 801

47 Cal.Rptr. 801

63 Cal.2d 648, 408 P.2d 129

The PEOPLE, Plaintiff and Respondent, v. Archie DAVIS, Defendant and Appellant.

Cr. 8061.

Supreme Court of California, In Bank.

Dec. 7, 1965.

John A. Gunning and Evans & Gunning, Oakland, for defendant and appellant.

Stanley Mosk and Thomas C. Lynch, Attys. Gen., Edward P. O'Brien and Robert R. Granucci, Deputy Attys. Gen., for plaintiff and respondent.

PEEK, Justice.

Defendant, following his conviction of murder in the second degree, appeals from the judgment on the grounds that the evidence is insufficient, that the homicide was justified and that the exclusion of testimony of specific acts of violence on the part of the deceased was prejudicial error.

The deceased, Norman Reed Morris, was the common-law husband of Mattie Gillen, defendant's mother-in-law. On December 8, 1962, a Saturday, following a beating by Morris she left the home in which they had been residing and asked her daughter and defendant to allow her to stay with them. She was emotionally upset, and stated to defendant that Morris had threatened to kill her. She also told defendant of numerous earlier instances when deceased had threatened and abused her. Defendant had knowledge of prior beatings and acts of violence administered by deceased to Mattie and others. He took Mattie to the police station where they reported this latest attack. After taking her home he sat up with her most of the night because of her distraught condition. Mattie continued to reside with defendant and his wife until after the killing.

On Tuesday morning, December 11, defendant drove Mattie in her automobile to the laundry where she was employed. At approximately 4:00 p. m., still using Mattie's car, defendant drove to her place of employment for the purpose of meeting and driving her to their home after she finished work for the day. When he arrived he saw deceased who had preceded him in his car, and was also waiting for Mattie. While the two men waited deceased entered defendant's car and they chatted amicably. Defendant noted that deceased had been drinking.

When Mattie came out of the laundry deceased attempted to engage her in conversation. She declined to talk with him and went back into the building. Deceased followed and insisted that they discuss their relationship, but she steadfastly refused to do so. Finally, as Mattie testified, she requested one of her fellow employees to call the police and deceased departed.

There is a conflict in the evidence as to certain critical portions of what thereafter transpired. Defendant testified that upon leaving the building deceased approached the car in which defendant sat, threatening all the while to kill him and Mattie, abusing both in foul language, and berating defendant for having called for Mattie. Defendant claimed that deceased had in his hand an open, switch-blade knife which defendant had previously seen in deceased's possession, and with which he had known deceased to attack other persons. He also testified that he knew deceased was a violent man, and feared that he could and would carry out his threats.

The deceased was 6 feet 4 inches in height and weighed 240 pounds. Defendant is of average size and had lost one leg in an accident as a boy. He testified that he felt he could not protect himself against the larger man armed with a knife, and pleaded with deceased to stay away. These pleas were heard by witnesses inside the building. According to defendant, when the pleas were ignored, he reached into the back seat where he had a shotgun and, in full view of deceased, loaded the same with the one shell he carried with him. His only purpose, he stated, was to frighten Morris. Defendant further testified that nevertheless deceased continued to approach and attempted to reach for the gun; that, fearing for his life, he aimed for the deceased's upper arm or shoulder and pulled the trigger. The deceased retreated a few steps, according to defendant, and fell within several feet of the car. Death was almost instantaneous. Defendant and Mattie drove away from the scene to defendant's place of business, called the police, and defendant surrendered to the officers who responded to the call.

Numerous witnesses smelled whisky on deceased's breath, and a whisky bottle was found in his car. Post-mortem examination showed blood-alcohol level of .18 which, the People concede, 'meant that while he might not have appeared drunk to a casual observer he could not have safely driven an automobile.'

Several witnesses testified without dispute as to the deceased's reputation as a violent man who was known to have attacked other persons without provocation and as to defendant's reputation as a quiet, peace-loving person.

The foregoing account is inconsistent in some respects with the testimony of prosecution witnesses although all of them testified to hearing defendant tell decedent to stay away. One such witness testified that a minute or two after the deceased left the laundry building she heard defendant plead with someone to stay away, and upon looking through the open door of the laundry she saw defendant, half standing and half sitting in his car with the door open, reach for, aim and fire the shotgun through the car window. From her point of view she could see no one near defendant as he fired.

A second employee testified that she saw, through a window of laundry, defendant standing by the car, just outside the driver's seat; that he aimed and fired a shotgun at deceased who was standing some ten to twelve feet away; that deceased fell immediately; that she could not say whether deceased was moving toward defendant at the time the latter fired.

A third employee testified that just before the gunshot she looked out a window and saw deceased standing in front of the bumper of the car; that she exclaimed, 'It looks like he is trying to run over him!'; that the car had moved forward from the position in which she had first observed it as the two men sat and talked therein; that when the gun appeared she took cover and heard but did not see the gun discharge. Her testimony that the car had been moved was corroborated by the owner of the laundry.

No witness observed a knife in deceased's hands and none was found in the area of the homicide other than two closed knives in deceased's trouser pockets. There were no power burns on deceased's body or clothing.

Among other things, defendant first contends, that the undisputed evidence shows as a matter of law the killing to be justifiable homicide; that he reasonably acted in defense of his person under the prevailing circumstances.

A homicide is justifiable '2. When committed in defense of habitation, property, or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony * * * or, 3. When committed in the lawful defense of such person * * * when there is reasonable ground to apprehend a design to commit a felony or to do some great bodily injury, and imminent danger of such design being accomplished * * *.' (Pen.Code, § 197.) 'A bare fear of the commission of any of the offenses mentioned in Subdivisions 2 and 3 of the preceding section, to prevent which homicide may be lawfully committed, is not sufficient to justify it. But the circumstances must be sufficient to excite te fears of a reasonable person, and the party killing must have acted under the influence of such fears alone.' (Pen.Code, § 198.)

Only if the jurors were required to accept defendant's version of the killing would we be inclined to agree with defendant's contention of justification. As indicated, however, there is substantial conflict in the evidence in respect to whether deceased was threatening defendant with an open knife as he approached, whether in fact he was approaching or was in defendant's immediate presence when the shot was fired, whether he lunged for the gun in defendant's hands, and what, if any, aggressive action defendant might have taken.

In addition to the foregoing the jurors were entitled to consider the relationships of the parties and the events which transpired before the fatal meeting at Mattie's place of employment. While there is no evidence of open conflict between deceased and defendant prior to the time of the killing, defendant nevertheless testified that he was afraid of deceased, usually consented to his demands because of that fear, and avoided him whenever possible. Defendant's personal involvement with the acts of violence inflicted upon Mattie has been previously recounted. The significance of these matters and what bearing, if any, they might have had on the fact that defendant carried the fatal shotgun in Mattie's car when he drove to her place of employment, was for the trier of fact. In this regard it appears that defendant had used the gun for a number of years to protect his home and his restaurant business. He testified that it was his usual practice to load the gun and keep it near his cash register during the evening hours. After closing time he would take the loaded gun to his car, drive home, and keep the gun with him in his home during the night. In the morning he would unload the gun and put it in his car when he returned to the restaurant.

On Monday, December 10, it appears that defendant drove Mattie to and from her place of employment, using his automobile. Nothing of significance occurred that day. Whether the gun was in the car on these trips does not appear. On Tuesday defendant's wife used his car, and he used Mattie's. He testified that he put the gun in the car in the morning before driving Mattie to work and that when he got to the cafe he forgot, as he did on occasion, to remove it to the cafe during the day. For that reason, he asserts, it was still in Mattie's car when he called for her in the afternoon. Some question was also raised because the gun was in a fully assembled condition while in Mattie's car, instead of...