63 Cal.2d 648, 8061, People v. Davis

Docket Nº:8061
Citation:63 Cal.2d 648, 47 Cal.Rptr. 801, 408 P.2d 129
Opinion Judge:[9] Peek
Party Name:People v. Davis
Attorney:[7] John A. Gunning and Evans & Gunning for Defendant and Appellant. [8] Stanley Mosk and Thomas C. Lynch, Attorneys General, Edward P. O'Brien and Robert R. Granucci, Deputy Attorneys General, for Plaintiff and Respondent.
Case Date:December 07, 1965
Court:Supreme Court of California
 
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Page 648

63 Cal.2d 648

47 Cal.Rptr. 801, 408 P.2d 129

The PEOPLE, Plaintiff and Respondent,

v.

Archie DAVIS, Defendant and Appellant.

Cr. 8061.

Supreme Court of California

Dec. 7, 1965.

In Bank

Page 649

[Copyrighted Material Omitted]

Page 650

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

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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,

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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.

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