People v. Borchers

Decision Date16 May 1958
Docket NumberCr. 6216
Citation325 P.2d 97,50 Cal.2d 321
CourtCalifornia Supreme Court
PartiesThe PEOPLE of the State of California, Plaintiff and Appellant, v. Walter G. BORCHERS, Jr., Defendant and Respondent.

Edmund G. Brown, Atty. Gen., William E. James, Deputy Atty. Gen., William B. McKesson, Dist. Atty., Jere J. Sullivan, Fred N. Whichello and Lewis Watnick, Deputy Dist. Attys., Los Angeles, for appellant.

Ellery E. Cuff, Public Defender, James P. Nunnelley and Richard F. Bird, Deputy Public Defenders, Los Angeles, for respondent.

SCHAUER, Justice.

The People appeal 'from an Order of the Superior Court * * * modifying the verdict in the above entitled cause by reducing the punshment imposed.' (Pen.Code, § 1238(6).) Defendant does not appeal. A jury found defendant guilty of murder of the second degree and found that he was sane at the time of the commission of the offense. The trial judge denied defendant's motion for a new trial on the issue of sanity and ordered that 'Defendant's motion for new trial on the case in chief is ruled upon as follows: In lieu of granting a new trial, the verdict of second degree Murder is reduced to Voluntary Manslaughter.' The People argue that the evidence was sufficient to justify the implied finding of malice aforethought, that the evidence did not show that defendant was guilty of voluntary manslaughter, and that the trial court erred in reducing the class of crime found by the jury. We have concluded that no ground for reversal is shown.

Defendant, a Pasadena insurance broker, aged 45, met deceased, referred to throughout the testimony as 'Dotty,' aged 29, at a zoo on May 13, 1956. With Dotty was Tony, an illegitimate child of four whom Dotty had cared for since 16 days after his birth. Defendant was attracted by the 'warmth,' 'kindness,' and 'sweetness' with which Dotty spoke to the child. Defendant spoke to the boy and thus became acquainted with Dotty. They had dinner together that night and thereafter, according to defendant's testimony, 'went together steadily from then on' until he killed her on October 9, 1956. From May 13, until October 9 'excepting the days that I was away on a business trip to Mexico and one other day, * * * there was not a day that went by but what Tony and Dotty and I saw each other.'

In March, 1955, defendant's wife had filed suit for divorce while defendant was in South America. On his return a 'temporary experimental reconciliation was effected' but on December 1, 1955, the Borchers finally separated. In February, 1956, defendant, accompanied by Mrs. Borchers, 'initiated the action in which I asked for the divorce from her.'

On May 22, 1956, nine days after defendant's meeting with Dotty, they became engaged. Defendant testified that 'Dotty was a very independent person. She finally admitted to me, although it was under duress, that she was having very serious financial problems.' Nevertheless she permitted defendant to make payments on her car, to establish her and Tony in a 'comfortable, pleasantly furnished apartment' in Pasadena, and to take her to Las Vegas. In Las Vegas Dotty 'froze in her tracks' when she saw a man whom she identified as 'Lard Bucket,' a well known gambler who was a friend of 'Chicken Louie,' Dotty's former husband.

The next day, May 28, in Las Vegas Dotty had her hair dyed red. That afternoon defendant said, 'I wish we didn't have to wait so long for our marriage.' After some discussion Dotty said that 'committing bigamy * * * wasn't a good idea.' They bought a wedding ring and 'had a lot of fun reciting our little common-law marriage ceremony, if you want to call it that, and we said our vows one to the other.'

On their return to Pasadena defendant opened a bank account for Dotty. She pawned some jewelry and put the proceeds in the account but defendant later 'paid them off.' Defendant gave her power of attorney to draw checks on his bank accounts, including his business account. He caused insurance in an amount of about $85,000 to be made payable to 'Dotty for her lifetime the interest in that and to Tony if he survived her.' He consulted his attorney 'to get papers cleared for Tony's legal adoption.'

About September 2 defendant engaged a private detective, Mr. Fagg, to investigate the 'background and associates' of Marvin Prestridge and Nick Cascio. These men had criminal records and were Changing around' Dotty and using her automobile. Fagg told defendant 'that I was dealing with * * * big-time hoodlums, and I was way over my head, * * * and I ought to get out, and furthermore he said I was * * * being set up for a possible murder for insurance. I laughed at him.' Defendant in his testimony repeatedly emphasized his devotion to Dotty and his complete disbelief that she was plotting against him with the 'hoodlums.'

Although defendant declared his complete love for and implicit trust in Dotty, he sometimes remained outside her apartment and on several occasions observed a man enter the apartment after he had left it.

Defendant believed that Prestridge 'used the fear that he held over Dotty to demand sexual relations with her.' She admitted such relations with Prestridge. Defendant testified that Dotty told him she was trying to help Prestridge 'because she was very fond of his mother, and she said that relationship got out of hand because of his demands, and there was an understanding.'

About three weeks before the killing Dotty, with defendant's help, moved to another apartment. Although defendant repeatedly testified that he never had an argument with Dotty, a neighbor testified that she heard Dotty scream at and curse defendant.

Defendant answered affirmatively a question whether Fagg, before October 5, 1956, told defendant in substance, 'I am going to have to be brutal with you in order to get you to realize that your life may be in jeopardy. My investigation does not indicate that Dotty is in any way being forced to sleep with Prestridge. Quite the contrary. She does it because she wants to, and, furthermore, Prestridge has a Dallas police record as a pimp, among other things, and Dotty is taking money from you and giving it to Prestridge.'

On October 5, 1956, defendant and Dotty drove to San Diego. On the way back she was very morose. She said that she wished she were dead and that 'These men will stop at nothing,' and she attempted to jump from the car as they were driving.

Defendant testified in detail to the events surrounding the killing. Also in evidence were the testimony of a police officer to an oral statement of defendant made two days after the killing (which defendant testified was accurate), a typewritten statement signed by defendant, and the testimony of Fagg, to whom defendant described the killing.

On the evening of October 9 defendant and Dotty left Tony with a baby sitter and at about 7:00 o'clock went to a restaurant. 'It was a particularly happy evening at that point.' After drinks and dinner, at about 9:30, they went for a drive. Dotty 'became very pensive, not speaking too much, and then when she did decide to talk she was talking about Tony and adoption again.' She expressed fear, as she repeatedly had in the past, that she would not be allowed to adopt the child. 'She made the suggestion that * * * if the two of us couldn't be happy because of our problem she would commit suicide and wanted me to shoot Tony. I told Dotty without Tony and without her, as far as I was concerned, there was nothing. At this time I couldn't seem to lift her out of her mood.' Dotty took the key from the ignition as they were driving, unlocked the glove compartment, and took out defendant's .32 caliber automatic pistol. '(S)he actuated the slide on the automatic and at that time the cartridge was ejected from the chamber and a live one replaced in the chamber by the actuation of the slide and * * * Dotty replaced the ejected cartridge into the clip of the gun.'

Defendant testified that Dotty held the gun 'not threateningly pointed at him,' but he told Fagg that 'She did point the gun at him and told him he better stop the car, she was going to shoot him. Then she pointed it at herself.' She discussed suicide with defendant and stated that she wanted defendant to shoot her and Tony and himself. Defendant 'attempted to work her out of this trend of thought.' She held the gun on the seat of the car and defendant put his hand 'very carefully' over her hand which held the gun. Dotty withdrew her hand. She again said that defendant should kill her, Tony, and himself. '(S)he put her head on my shoulder and she kissed my cheek and she straightened back up to a sitting position, and when she leaned over to kiss me I had put my arm with the gun in it on the back * * * of the seat. I had thought of throwing it in the back, but I didn't want to throw it back there, and I didn't want to make too much of a point so that she would feel I actually tried to take the gun away from her. I was trying to do it as carefully as I could. But I didn't throw it in the back seat and if I only had.' The car was moving during all this time. Defendant held the gun pointed at the back of Dotty's head. She turned to him and said, 'Go ahead and shoot, what is the matter, are you chicken.' She turned away. Defendant heard the explosion of the gun as he shot Dotty in the back of the head and Dotty fell over in the seat with her head by defendant's right leg.

Defendant saw a car behind him and, frightened because he thought it might be the police, slowed down until it drove past. Dotty was 'moaning very softly.'

As defendant drove on a near accident with another car occurred. The driver of the other car testified that Dotty's hands 'were hung on the horn and the horn was sounding.' Both cars came to a stop. Defendant 'pulled her hands out and then sped away. He pushed her down in the floorboards when he drove on and sped away.'

Defendant then drove to his office but when he arrived there he saw an...

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