People v. Burwell

• Decision Date: 01 February 1955
• Docket Number: Cr. 5486
• Citation: People v. Burwell, 279 P.2d 744, 44 Cal.2d 16 (Cal. 1955)
• Court: California Supreme Court
• Parties: The PEOPLE of the State of California, Plaintiff, v. Eugene BURWELL and James Alonzo Rogers, Defendants.

Page 744

279 P.2d 744

44 Cal.2d 16

The PEOPLE of the State of California, Plaintiff, v. Eugene BURWELL and James Alonzo Rogers, Defendants.

Cr. 5486.

Supreme Court of California, In Bank.

Feb. 1, 1955.

As Modified on Denial of Rehearing March 3, 1955.

Adams & Reynolds, John Adams, Jr., and R. J. Reynolds, San Francisco, for appellant Burwell.

Walter F. Freitas and S. J. Hugh Allen, San Rafael, for appellant rogers.

Edmund G. Brown, Atty, Gen., Clarence A. Linn, Asst. Atty. Gen., Arlo E. Smith, Deputy Atty. Gen., San Francisco, and W. O. Weissich, Dist. Atty., San Rafael, for respondent.

SHENK, Justice.

Eugene Burwell and James A. Rogers, inmates of the State Prison at San Quentin, were charged with murdering two San Quentin guards, Charles W. Wiget and Vern A. Mackin. Verdicts of conviction without recommendation as to penalty were returned by the jury and death sentences were imposed. There is here an appeal from the judgment of conviction and from an order denying a motion for a new trial as to each defendant.

The defendant Burwell was the chief clerk of the library in the main prison or so-called 'Quentin side' thereof. Burwill's friend, the defendant Rogers, lived in the so-called 'Guidance Center side' of the prison awaiting assignment to his place in routine prison life, and his opportunities to visit Burwell were limited. On January 14, exchanged clothes, identification cards and cells with Bragg, inmate quartered in the cells whith Bragge, an inmate quartered in the main prison. Bragg was entitled to leave his cell for certain purposes between the hours of 6:00 and 8:00 p. m. On or about 6:30 p. m. of that evening Rogers posing as Bragg, met Burwell at the prison library where the latter was on duty. The only other occupant of the library at the time was inmate Wolfe, an assistant clerk at work in the librarian's office. The evidence of what took place thereafter is conflicting, but viewed in a light consistent with the verdicts, as we are required to do, People v. Daugherty, 40 Cal.2d 876, 885, 256 P.2d 911; People v. Newland, 15 Cal.2d 678, 681, 104 P.2d 778; People v. Perkins, 8 Cal.2d 502, 510, 66 P.2d 631; People v. Tom Woo, 181 Cal. 315, 326, 184 P. 389, there is substantial evidence from which the jury reasonably could find that the defendants planned an escape; that the defendant Burwell and Officer Wiget were unfriendly due to a prior disagreement and altercation; that as a result thereof the defendant Burwell planned 'to get' Officer Wiget; that the officer's visit to the library on a regular tour of duty was anticipated by the defendants and they planned to attack him; that weapons consisting of two knives, the separated blades of a pair of scissors and a hand axe were collected in anticipation of the attack; that at approximately 7:10 p. m. Officer Wiget knocked on the library door and was admitted by Burwell; that Rogers pretended to be ill as he lay on a table in a rear room off the main library reading room; that Officer Wiget first questioned Rogers' right to be in the library; that as he attempted to diagnose Rogers' trouble and to make an entry in his notebook, he was attacked by the defendants using the weapons theretofore concealed, and that in the ensuing struggle Wiget was killed. His death was attributed to multiple injuries, the main causes being a stab wound penetrating the chest and abdomen, and partial asphyxia due to compression from a necktie drawn tightly about his neck following the struggle. During the assault on Wiget, Burwell received a stab wound through his back and into his chest cavity. The wound was dressed by Rogers and external bleeding temporarily ceased.

Thereafter the defendants bound and gagged inmate Wolfe and placed him in a position not visible from the main library or the scene of the homicide. They dragged off the rear reading room. Defendant off the rear reading roo. Defendant Burwell went into the corridor outside of the main library where he engaged in conversation with two prison guards, Officers Dascombe and Stewart. He informed these guards that Rogers was ill in the rear reading room and the officers accompanied Burwell to that room. Officer Dascombe left to obtain a hospital gurney to remove the supposedly ailing Rogers. As Officer Stewart bent over Rogers in an effort to make him more comfortable he was struck repeatedly from behind by Burwell using the hand axe. Rogers joined in the assault with a scissors blade. The officer fell to the floor, where he remained for an indeterminate time. During that time Officer Dascombe returned. He could not or did not see Officer Stewart. The defendant Rogers was lying on a library table when Officer Dascombe re-entered and was assisted by the officer in arising. The officer noticed a blade from a separated pair of scissors in Rogers' trouser pocket and relieved him of it. Rogers was ordered to leave the library, but instead Rogers seized a broom and he and Officer Dascombe fought for possession of it. While this struggle was in progress, the defendant Burwell attacked Officer Dascombe from behind again, using the hand axe to beat the officer into unconsciousness. Meanwhile Officer Stewart had arisen and escaped from the library. Both of the officers suffered extensive multiple fractures of their skulls and mangled hands and fingers in attempting to ward off the blows from the axe. They both recovered.

Leaving the unconscious Dascombe and the body of Wiget in the library, the defendants sought an escape route. They proceeded through a mess hall in which a basketball game was in progress and met Officer Vern A. Mackin, who inquired as to their destination. They stated that they were bound for a projection booth overlooking the mess hall to obtain certain phonograph records for use in the library. Officer Mackin accompanied them to the projection booth, where inmate Gallegos was on duty playing musical recordings during the intermission of the basketball game. Mackin advised Gallegos of Burwell's and Rogers' purported purpose in coming to the booth. Mackin then noticed something amiss in the defendants' appearance and conduct and sought to summon aid by telephone. Rogers thereupon seized Mackin around the neck from behind. Gallegos attempted to assist Mackin but was unable to break Rogers' hold on Mackin. Rogers drew a knife and Burwell took the hand axe from his clothing and both assaulted Mackin with these weapons in such a manner as to cause his death. Gallegos escaped and gave the alarm that resulted in the apprehension of the defendants. Mackin's death was attributed to multiple injuries, the main cause being a stab wound directly into the heart, fractures of the skull and concussion of the brain.

Evidence from which the foregoing account of the events which took place relating to the homicides in large part came from statements made by the defendants during preliminary investigations. The account to which they testified during the trial conflicts in some details with the recitation of facts set forth above, particularly with reference to the events leading up to the death of Officer Wiget who, they claim, launched an attack upon Burwell who, in turn, acted in self-defense. However, in view of the conflict in the evidence the jury was not required to believe the defendants' different versions of the killings. People v. Borrego, 211 Cal. 759, 765, 297 P. 17; People v. Shafer, 101 Cal.App.2d 54, 59 224 P.2d 778. There is substantial evidence to sustain the verdicts that each defendant participated in both killings and that the homicides were murders in the first degree. Pen.Code, § 189.

A preliminary question relates to the defendants' contention that they were denied a fair trial by the refusal of the court to continue the trial until after a decision in a collateral mandamus proceeding, hereinafter referred to, involving the right of the defendants to inspect certain records taken from the files of the coroner's office at the direction of the district attorney. The record shows that about a month after the homicides the court-appointed attorneys for Rogers asked the Marin County coroner to permit them to look at his file in the case. The coroner stated that he would have to secure the consent of the district attorney before he would allow them to do so. After two telephone conversations, the district attorney consented to the inspection of the file. It was about five o'clock in the afternoon when this consent was secured, and the attorneys, after thumbing through the file, indicated that they would continue their inspection the following morning in order not to inconvenience the coroner. In their brief inspection the attorneys noticed that the file contained copies of San Quentin inspection reports, psychiatric reports, interrogations of both defendants, autopsy reports, personal property reports, pictures and other data concerning the homicides. When the attorneys returned to the coroner's office the next morning they were informed that the district attorney had directed that all material other than the coroner's report and the personal property report be truned over to his office, and that the coroner had complied with his request. The attorneys for Rogers then sought in the superior court a writ of mandamus to compel the production of material taken by the district attorney from the coroner's file on the ground that this material was part of a public record which the defendants were entitled to examine or that if the material was privileged, the privilege had been waived. Burwell later ioined in this proceeding.

A hearing was held in the mandamus proceeding in the superior court. The coroner testified that the material taken by the district attorney in general consisted of San Quentin reports about the defendants and the killings; that he had requested copies of these reports from the warden; that they had been given to him with the understanding that the information...