People v. Butler, Cr. 931
| Decision Date | 20 May 1953 |
| Docket Number | Cr. 931 |
| Citation | 257 P.2d 109,118 Cal.App.2d 16 |
| Court | California Court of Appeals Court of Appeals |
| Parties | PEOPLE v. BUTLER. |
Jefferson & Jefferson, Martha Malone Jefferson, Bernard S. Jefferson, Los Angeles, for appellant.
Edmund G. Brown, Atty. Gen., Norman H. Sokolow, Deputy Atty. Gen., for respondent.
The defendant was charged with arson and in another count with assault with intent to commit murder. A jury found him guilty of arson and, under the other count, guilty of assault with a deadly weapon. He has appealed from the judgment and from an order denying his motion for a new trial.
The defendant had been having some trouble with his wife over a restraining order which had been issued in a divorce proceeding, to which they were parties. He was living in a trailer park near Palm Springs and she was living in the home in Yucaipa. About noon on May 12, 1951, he told two people that he was going to buy a gun and kill his wife. He telephoned his wife three times that afternoon telling her, among other things, that he would burn the house down before he would let her have it. About 4:00 or 4:30 P. M. on that day he entered a store in San Bernardino and bought a .22 rifle, with a box of cartridges.
About 8:20 P. M. that evening Mrs. Butler locked her house and went to a neighbor's. When she returned about 9:50 P. M. she found the defendant sitting in the front room, apparently asleep. She ran back to the neighbor's home and someone there went to call the constable, who lived a few blocks away. About that time the defendant was seen running away from the house. He got in his parked truck and drove away. He circled around a short distance and again parked his truck, with the lights off, where he could observe the Butler house. About 10:00 P. M. the constable started for the Butler home and passed the point where the defendant was parked. He stopped and when he started to talk to the defendant he saw a gun barrel sticking over the edge of the door and pointed toward him. The defendant threatened to kill him and fired several shots. After a struggle, the constable succeeded in getting possession of the gun and in handcuffing the defendant, with the help of some other people.
Some ten minutes after the constable took the defendant away, neighbors observed that the Butler house was on fire. The fire was burning in the front room and in two of the bedrooms, causing damage to the house as well as some of the furnishings. Mrs. Butler discovered that the glass in the rear door had been broken and the screen cut. A forest ranger in charge of a fire suppression station in that district testified as to the conditions he found in the house about 10:40 P. M. on that night. An investigator for the Board of Fire Underwriters testified as to what he observed three days later.
The sole defense was that of unconsciousness and amnesia. The defendant testified that he took a couple of drinks shortly after noon on that day; that he was unable to remember anything that happened thereafter until later in the evening when he found himself sitting in his truck; that he saw a gun being pointed at him though the window of the truck; and that an officer then hit him. A doctor of philosophy and a doctor of medicine testified that they had questioned the defendant shortly before the trial, and had concluded that he was not conscious of what he was doing during the period in question. The defendant was able to remember what occurred after his struggle with the constable, and testified in some detail as to what was then said and done. The superintendent and medical director of Patton State Hospital testified for the People, and in response to a hypothetical question expressed the opinion that a person who had done what the defendant had done during the intervening period was not unconscious.
No contention is made that the evidence is not sufficient to sustain the verdict but prejudicial error is assigned in connection with the instructions given and in respect to the admission of certain testimony. Error is first assigned in the giving of an instruction which included the following:
This exact language was held to be erroneous in People v. Hardy, 33 Cal.2d 52, 198 P.2d 865, 871. The court there said:
The respondent argues that while this instruction was held to be erroneous in the Hardy case, it was not definitely held to be reversible in itself since other errors there appeared. Other errors also appear in the instant case. In other cases an instruction requiring the defendant to prove his defense by a preponderance of the evidence has been held sufficiently prejudicial to constitute reversible error. People v. Costello, 21 Cal.2d 760, 135 P.2d 164; People v. Marshall, 59 Cal. 386; People v. Agnew, 16 Cal.2d 655, 107 P.2d 601. Moreover, this erroneous statement of the law was given special emphasis in the argument to the jury. Near the end of his closing argument the district attorney stated that the court would instruct the jury that the burden was on the defendant to show by a preponderance of the evidence that he was unconscious, and then said: 'I wish you would listen to that instruction very...
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