People v. Butterfield

• Decision Date: 29 January 1960
• Docket Number: Cr. 6659
• Citation: 2 Cal.Rptr. 569,177 Cal.App.2d 553
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Eugene J. BUTTERFIELD, Defendant and Appellant.

Page 569

2 Cal.Rptr. 569

177 Cal.App.2d 553

PEOPLE of the State of California, Plaintiff and Respondent, v. Eugene J. BUTTERFIELD, Defendant and Appellant.

Cr. 6659.

District Court of Appeal, Second District, Division 3, California.

Jan. 29, 1960.

Rehearing Denied Feb. 25, 1960.

Hearing Denied March 28, 1960.

J. Thomas Russell, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Daviid B. Allen, Deputy Atty. Gen., for the People.

FORD, Justice.

Defendant Eugene J. Butterfield appeals from the order denying his motion for a new trial and from 'the sentence and judgment of the court' which we construe to be an appeal from the judgment. The order granting probation is deemed to be the final judgment for the purpose of this appeal. Pen.Code, § 1237.

In each of the two counts of the information, the defendant was charged with the crime of 'assault with a deadly weapon with intent to commit murder in violation of Section 217, Penal Code of California,' a felony. In count I, the person alleged to have been so assaulted was Janet Dorrine Byzek, and in count II, John Wallace Ross.

John Ross, of the two victims of the assault, testified at the trial that on the evening of July 9, 1958, he became involved in a fight with the appellant in the Garden of Allah parking lot. The fight was observed by Janet Byzek, the other victim of the assault, and by Grady Smith, a bus driver who was seated in his bus. Paul Christiansen, the parking lot attendant, also observed the fight.

After the fight terminated, Ross and Mrs. Byzek left the parking lot and walked south along Crescent Heights Boulevard. Miss Nancy Smith testified that, from a parked car in which she was seated, she noticed two people walking down the street. '[T]he girl was pulling him up the street, and he would pull per down.' Miss Smith also noticed a car, moving slowly along the side curb, following them. Mrs. Byzek testified that the appellant's car, a blue 1957 Oldsmobile, pulled up by the side of her and Ross, but that she did not remember what was said. Miss Dorothy Norman testified that she observed from the upstairs window of her home a man and a woman walking down the street and talking loudly. She also noticed a blue 1957 Oldsmobile make a U-turn in the street. Both Miss Norman and Miss Smith testified that the car turned into a driveway just as Ross and Mrs. Byzek were walking across it. The driver paused and then, accelerating his motor, drove into the driveway, striking Ross and Mrs. Byzek. Mrs. Byzek testified that when she fell off the hood, the car was then stopped, backed up, and was driven at her again. Ross recognized the driver to be the appellant Butterfield.

Later, three California State Highway patrolmen arrested the appellant at his apartment. They asked the appellant about his car and his whereabouts that evening. The appellant said that his car had been stolen and that the only time he had left his apartment was to get his laundry. The appellant offered no explanation as to why he had his car keys. The car was observed to be parked in the parking area east of the appellant's apartment building and the car hood was still warm. Fingerprints, later ascertained to be those of Mrs. Byzek, were lifted from the hood of the car the next morning by Deputy Sheriff Robert Wolf, a fingerprint expert. The car had been washed at a service station the previous evening.

The officers questioned the appellant en route to the West Hoolywood Sheriff's substation. route to the West Hollywood Sheriff's substation. he responded, 'I know what you are trying to do. I was an M. P. for three years, myself, and I am not going to say anything.' At the substation, Deputy Sheriff Ostraff summarized for the appellant the statements of the witnesses including that of Mr. Ross. The appellant said that he would rather not say anything about it.

The jury was properly instructed as to the elements necessary to be shown to constitute the offense of assault with a deadly weapon. An instruction was also given to the effect that the jury could find the defendant guilty of any offense, the commission of which was necessarily included in that with which the defendant was charged, if the jurors found that the evidence supported such a verdict under the court's instructions. In that instruction, the jury was further told that 'the offense of Assault with a deadly weapon with intent to commit murder, ¹ of which the defendant is charged in counts 1 and 2 of the information, necessarily includes the crime of Assault with a deadly weapon, ² or an assault by any means likely to produce great bodily injury.' A further instruction was given as follows: 'When the information charges that the defendant committed an assault with a deadly weapon with intent to commit murder, if the jury should find that he committed the assault with a deadly weapon but that he did not do so with a specific, preconceived intent to kill, the defendant may be found guilty only of the lesser offense, namely, assault with a deadly weapon.'

Appellant's chief contention is that the jury should not have been instructed that the offense of assault with a deadly weapon was included within that charged in each count of the information. He asserts that, in this case, that matter should not have been submitted to the jury at all. But, before discussing that contention, appellant's attack upon the verdicts will be considered.

The trial court interpreted each verdict as being a finding of guilt of the offense of assault with a deadly weapon. Appellant argues that each verdict was unintelligible, failed to reflect an offense, and was a nullity. The body of the verdict as to count I (italics being used to denote insertions by longhand in the printed form) was as follows: 'We, the Jury in the above entitled action, find the Defendant Eugene J. Butterfield guilty of a violation of Sec. 245 Penal Code, a lessor [sic] but included offense of the offense Assault with a deadly weapon ³ as charged in Count I of the information.' The verdict as to Count II was in the same form except for the reference to that count instead of count I.

Each verdict was obviously a finding by the jury that the defendant was guilty of the offense of assault with a deadly weapon which offense, under the instructions, was included within that charged in the information of assault with a deadly weapon with intent to commit murder. Discussion between court and counsel after the return of the verdicts and after the jurors had been excused indicates that the words 'assault with a deadly weapon' were added, for the sake of completeness, after the forms had been originally prepared but before submission to the jury. It is, of course, clear that more care should have been taken in the preparation of the forms of verdict so that a question such as is now presented would not arise. But it does not appear that the jury was confused. Counsel for appellant apparently understood what was intended by the verdicts because, after they were read, he stated: 'If the Court please, at this time the defense requests that the jury be polled on the lesser included offense.' No objection was them made to the form of the verdicts. When read in the light of the record, there is no lack of clarity as to the determination of the jury. See People v. Hatch, 163 Cal. 368, 383, 125 P. 907. As said in People v. Holmes, 118 Cal. 444, at page 448, 50 P. 675, at page 576: 'There is no good reason why the verdict of a jury should not have a reasonable construction, and be given effect according to its manifest intention.' See, also, People v. Sprado, 72 Cal.App. 582, 588, 237 P. 1087; People v. Mitchell, 61 Cal.App. 569, 574, 215 P. 117; People v. Tognola, 83 Cal.App. 34, 37, 256 P. 455.

We turn now to appellant's main contention. He argues that no conviction of the offense of assault with a deadly weapon (Pen.Code, § 245) was proper in this case because the counts of the information which charge him with the offense of assault with a deadly weapon with intent to commit murder (see Pen.Code, § 217) fail to mention to describe the deadly weapon alleged to have been used. He relies on People v. Marshall, 48 Cal.2d 394, 309 P.2d 456. But that case does not sustain his position. Therein the Supreme Court held that whether an offense is necessarily included in a charge within the meaning of section 1159 of the Penal Code is to be determined by resort to the specific language of the accusatory pleading rather than to the language of the statute defining the offense charged. 48 Cal.2d 394, at page 405, 309 P.2d 456, at page 462. In the present case, each count was so framed as to include within its pleading the allegation that an assault with a deadly weapon had been made. It is not necessary to describe the deadly weapon in an information charging violation of section 245 of the Penal Code. People v. Jackson, 53 Cal.2d 89, 346 P.2d 389; People v. De La Roi, 23 Cal.2d 692, 697, 146 P.2d 225, 151 P.2d 837. It is well-established that the charge of assault with a deadly weapon is necessarily included in the charge of assault with a deadly weapon with intent to commit murder. People v. Mock Ming Fat, 82 Cal.App. 618, 620, 256 P. 270; People v. Casserio, 16 Cal.App.2d 223, 226, 60 P.2d 505. There is nothing in the reasoning of People v. Marshall, supra, which requires any different conclusion. In fact, the following pertinent statement is therein made (48 Cal.2d 374, 403-404, 309 P.2d 456, 461): 'It is not unusual for a prosecutor to charge in one count the elements of two kinds of aggravated assault defined by two separate sections of the Penal Code, assault with intent to commit murder (Pen. Code, § 217) and assault with a deadly weapon (Pen.Code, § 245). In this situation, the appellate courts have expressly recognized that the yardstick for determining 'included' offenses is the language of the accusatory pleading. (People v. Gordon ...