People v. Barclay

• Citation: 40 Cal.2d 146,252 P.2d 321
• Decision Date: 09 January 1953
• Docket Number: Cr. 5356
• Parties: PEOPLE v. BARCLAY et al.
• Court: United States State Supreme Court (California)

Page 321

252 P.2d 321

40 Cal.2d 146

PEOPLE v. BARCLAY et al.

Cr. 5356.

Supreme Court of California, in Bank.

Jan. 9, 1953.

Rehearing Denied Feb. 5, 1953.

George C. Carmody and Richard D. Sanders, Pittsburg, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Charles E. McClung, Deputy Atty. Gen., Francis W. Collins, Dist. Atty., Contra Costa, and David J. Levy, Deputy Dist. Atty., Martinez, for respondent.

TRAYNOR, Justice.

Defendant Lovell Barclay was charged by indictment with the murder and robbery of Alson G. Smith. He pleaded not guilty and admitted two prior felony convictions of robbery and one of manslaughter. A jury returned verdicts of guilty of murder in the first degree without recommendation and of robbery in the first degree. Defendant's motion for a new trial was denied, and he was sentened to death on the murder conviction and to prison on the robbery conviction. The appeal to this court is automatic. Penal Code, § 1239(b).

Defendant operated a restaurant concession at the Hilltop Club in Crockett, owned by Smith. On the evening of March 6, 1952, Deniel Ortiz, James Davis, and William Hatfield, three acquaintances of defendant, drove to Crockett in Davis' car. They found defendant repairing his car and after some conversation the four men went to defendant's room in Crockett. The conversation turned to the subject of robbery, and Hatfield and defendant discussed the possibility of robbing a place about one hundred miles away. Defendant said that his car was in poor mechanical condition, and the two men asked Davis if they could use his car. Davis refused. After some discussion, defendant suggested that Davis drive him to the Hilltop Club so that he could borrow the car of a bartender who worked there. Davis agreed and the four men arrived at the Hilltop Club at about 3 o'clock in the morning.

Davis and Ortiz waited in the car. Hatfield and defendant forced open a window and entered the Club. Knowing that Smith kept most of his money in his room, the two men went upstairs. Hatfield entered the room first and found Smith asleep. He beat Smith until he was unconscious. The two men then ransacked the room and found Smith's wallet and several bags of silver. While their attention was distracted, Smith recovered consciousness and sat up in bed. Hatfield, using defendant's nickname, called out: 'Frisco, what should I do?' Defendant said: 'Man, you shouldn't have said my name * * *. I'll take care of him.' Defendant threw a blanket over Smith's head. Hatfield turned his back as defendant beat Smith about the head for approximately a minute. The two men took the money and returned to the car where Ortiz and Davis were still waiting.

Ortiz and Davis asked about the bartender's car, but defendant and Hatfield laughed and told David to drive back to defendant's room. After they arrived, Davis and Ortiz saw Hatfield wash blood off his hands and watched the two men divide the money. Realizing that a crime had been committed while Hatfield and defendant were in the Club, Ortiz and Davis complained that they had become involved. They were given about $10 apiece and told to keep quiet. The four men separated and went home.

Smith never regained consciousness and died the day after the robberty. The injuries received from the beating were the direct cause of his death. When Davis and Ortiz read in a newspaper that Smith had died, they informed the police of the crime, and Hatfield and defendant were apprehended.

Hatfield and defendant were tried jointly. Ortiz and Davis testified as witnesses for the prosecution. Midway through the trial Hatfield withdrew his plea of not guilty and pleaded guilty. Subsequently he testified as a witness for the prosecution. An expert witness testified that he found fibres on defendant's clothes that matched fibres from the bedding on Smith's bed, and that he found dust on defendant's clothes that matched dust on the roof of the Hilltop Club taken from the point where defendant and Hatfield made their entry. Defendant took the stand in his own behalf and testified that on the night of the murder he completed his work at the Club at about 1:30 and then went home to bed. He contended that Hatfield, Ortiz, and David had falsely accused him of the crime in order to avoid responsibility for themselves. The jury rejected his defense and found him guilty.

Since the evidence in the present case shows that defendant killed Smith in the commission of a robbery, it is clearly sufficient to support the conviction of murder in the first degree. Penal Code, § 189; People v. Coefield, 37 Cal.2d 865, 868-869, 236 P.2d 570.

Defendant contends that the court erred in not instructing the jury that Davis, Ortiz, and Hatfield were accomplices as a matter of law. An accomplice is 'one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.' Penal Code, § 1111. If the undisputed evidence establishes that a witness is an accomplice, the jury should be so instructed. People v. Wallin, 32 Cal.2d 803, 809, 197 P.2d 734; People v. Ferlin, 203 Cal. 587, 601, 265 P. 230; People v. Coffey, 161 Cal. 433, 436, 119 P. 901, 39 L.R.A.,N.S., 704. Insofar as Davis and Ortiz are concerned, however, defendant's contention cannot be sustained. Davis and Ortiz testified that they knew nothing about the possibility of a robbery until the four men gathered in defendant's room; that they refused to take part in the projected robbery one hundred miles from Crockett; that they drove to the Hilltop Club with Hatfield and defendant in the belief that the only purpose of the trip was to get the bartender's car; that they were afraid that if they refused to go to the Hilltop Club, Davis' car would be taken by force; and that they did not know until after they returned to defendant's room that any robbery of the Hilltop Club had been contemplated. From the testimony of David and Ortiz the jury could reasonably conclude that the robbery of the Hilltop Club was an act independent of and foreign to the original criminal design to rob a place one hundred miles away, and that Davis and Ortiz were thus not guilty of the murder and robbery of Smith. People v. Harper, 25 Cal.2d 862, 870-873, 156 P.2d 249; People v. Kauffman, 152 Cal. 331, 335, 92 P. 861; see, also, Wharton's Criminal Law (12th ed.), § 258; 15 C.J.S., Conspiracy, § 74. Accordingly, the question whether or not Davis and Ortiz were accomplices to the crimes for which defendant was on trial was properly left to the determination of the jury. See cases collected in 19 A.L.R.2d 1352. If it is assumed that, as contended by defendant, Davis and Ortiz were guilty as a matter of law of the crime of concealing a felony, Penal Code, § 32, they still would not be 'liable to prosecution for the identical offense charged against the defendant on trial' as required by section 1111. People v. Collum, 122 Cal. 186, 187, 54 P. 589; see People v. Wallin, supra, 32 Cal.2d 803, 807, 197 P.2d 734.

The people concede that Hatfield was an accomplice as a matter of law and that it was error not to so instruct the jury. The court, however, clearly and correctly instructed the jury on the definition of an accomplice. The jury knew that Hatfield had been indicted with defendant; they had heard his testimony that he committed the crime; they knew that he had withdrawn his plea of not guilty and entered a plea of guilty. The district attorney stated in his argument to the jury: 'With Mr. Hatfield we feel that he was an accomplice, there is no doubt about it. As to Davis and Ortiz, you are to decide whether or not they are accomplices.' Under these circumstances, it is improbable that the jury considered that Hatfield was not an accomplice and that a different verdict would have been reached had an instruction been given that he was an accomplice. See People v. Ferlin, supra, 203 Cal. 587, 601-602, 265 P. 230; People v. Wahnish, 20 Cal.App.2d 58, 63, 66 P.2d 677.

The only evidence before the grand jury to connect defendant with the crime was the testimony of Ortiz and Davis. Defendant contends that the trial court erred in denying his motion to set aside the indictment, on the ground that it was not based upon evidence that would warrant a conviction by a trial jury. Penal Code, § 921; cf. Lorenson v. Superior Court, 35 Cal.2d 49, 216 P.2d 859; People v. McRae, 31 Cal.2d 184, 187 P.2d 741. It is unnecessary to pass upon this contention since, as we have seen, whether or not Ortiz and Davis were accomplies of defendant was a question of fact to be determined by the jury at the trial.

At the request of the People, the jury was instructed that: 'It is the law that the testimony of an accomplice ought to be viewed with distrust. This does not mean that you may arbitrarily disregard such testimony, but you should give to it the weight to which you find it to be entitled after examining it with care and caution and in the light of all the evidence in the case.' Defendant criticizes the italicized part of the instruction, on the ground that the jury should have been instructed only in the language of section 2061(4) of the Code of Civil Procedure, that 'the testimony of an accomplice ought to be viewed with distrust,' and that the additional words 'care and caution' prejudicially weakened the instruction. It is error to instruct the jury that an accomplice's testimony should be viewed with 'caution' without also instructing the jury in the language of the statute. People v. Hamilton, 33 Cal.2d 45, 51, 198 P.2d 873; see also People v. Dail, 22 Cal.2d 642, 653, 140 P.2d 828. The instruction given in the present case, however, read as a whole, is a correct statement of the law. People v. Hess, 107 Cal.App.2d 407, 430, 237 P.2d 568; People v. Chapman, 93 Cal.App.2d 365, 381, 209 P.2d 121.

The jury was instructed that: 'If either the crime of murder or robbery,...