People v. Byrd

• Citation: 266 P.2d 505,42 Cal.2d 200
• Decision Date: 04 February 1954
• Docket Number: Cr. 5487
• Court: United States State Supreme Court (California)
• Parties: PEOPLE v. BYRD.

Page 505

266 P.2d 505

42 Cal.2d 200

PEOPLE v. BYRD.

Cr. 5487.

Supreme Court of California, In Bank.

Feb. 4, 1954.

Rehearing Denied March 3, 1954.

Morris Lavine, Los Angeles, and Waite & Drapeau, Ventura, for appellant.

Edmund G. Brown, Atty. Gen., William E. James, Deputy Atty. Gen., Roy A. Gustafson, Dist. Atty., Ventura, and James E. Dixon, Dep. Dist. Atty., Ventura, for respondent.

SPENCE, Justice.

Defendant Walter Thomas Byrd was charged by indictment with the murder of his wife, Susan. He pleaded not guilty and not guilty by reason of insanity. The jury returned a verdict of guilty of murder in the first degree without recommendation, and he was found sane. His motion for a new trial was denied, and the death penalty was imposed. The appeal is automatic. Pen.Code, § 1239, subd. (b).

As grounds for reversal, defendant urges these points: (1) invalidity of the indictment because of incompetency of the grand jury; (2) errors in the charge to the jury, both in giving and refusing to give certain instructions; and (3) insufficiency of the evidence to sustain the verdict. There is no merit to any of these objections, and the judgment must be affirmed.

Defendant, a man 41 years of age, was a chronic alcoholic. He and his wife had been married about seventeen years, and they had two children Gracelee, aged sixteen, and Connie Sue aged six. On December 31, 1952, Mrs. Byrd obtained an interlocutory decree of divorce, in which she was awarded all the community property. Both prior to and after the divorce decree, defendant and his wife had frequent quarrels. Before their divorce, Mrs. Byrd had defendant arrested for an assault upon her, for which he served a sixty-day jail sentence; and she also had him committed to the Camarillo State Hospital as an alcoholic, where he stayed for ninety days. In the course of the divorce action, defendant and his wife had several heated arguments relative to a property settlement; and during the few weeks following the divorce, particularly just preceding Mrs. Byrd's death, they quarreled violently over defendant's refusal to sign a quitclaim deed to certain property.

During December, 1952, and January, 1953, defendant was drinking heavily. Then deciding to 'sober up' and taking some 'nerve tablets,' defendant on February 3, 1953, went to his wife's home in Santa Susana Knolls to see his family. Mrs. Byrd spoke to him abut signing the quitclaim deed to the property. At first, after some argument, he agreed to sign the deed, but when they went to a notary public for that purpose, he again refused to sign. Defendant then left his family and went to his sister's home in Van Nuys, where he spent the night. While there he drank some rubbing alcohol and wine, and took some sleeping pills. The next night about 10 p. m. defendant stole two guns and some shells from a gunshop in Van Nuys. After walking the rest of the night to Santa Susana Knolls, some 25-30 miles, defendant found some friends and he spent the day, February 5, drinking with them. While there, he showed one of the men his guns, and they practiced firing shots. Then, after doozing awhile, defendant started for his wife's home, where he arrived between 7 and 7:30 p. m. A Buick car and his wife's car, a 1947 Chevrolet, were parked in front of the house. He sat in a vacant lot for a time, and then got into his wife's car, drank some more wine, and dozed from time to time. The owner of the Buick car drove off shortly after defendant's arrival. Almost immediately thereafter a second visitor arrived in a Ford Pick-up truck, and he stayed until about 11:30 p. m. Mrs. Byrd retired to her bedroom about 9:00 p. m., leaving the visitor and her two daughters watching television.

After this visitor left in his Ford pickup truck, defendant went into the house. Gracelee testified that she heard footsteps and her father's voice say 'Sue, is that you?' Her mother answered 'Yes' and then something like 'Get out of here!' Then she heard a shot and her mother said 'Oh, Lee' (as the mother called defendant). She then heard another shot. Gracelee testified that she did not see her father but she recognized his voice, which didn't sound normal but had a high pitch, more like he had been drinking. One shot went through Mrs. Byrd's head causing her death, and another through her shoulder. Defendant testified that after the shooting he walked about a mile, where he found a shack and spent the balance of the night. The next morning he was found by deputies from the sheriff's office and was placed under arrest.

Defendant first challenges the validity of his indictment. The People and defendant stipulated that the 1953 Grand Jury which indicted defendant had as one of its members a juror who had sat on the 1952 Grand Jury; but it was further stipulated that this juror was not present when the indictment was returned against defendant. Section 199 of the Code of Civil Procedure provides that 'a person is not competent to act as a grand juror' if he has served as such within a year and been discharged. Defendant contends that the deviation here from the statutory provision rendered the entire proceeding void. He relies on Bruner v. Superior Court, 92 Cal. 239, 28 P. 341, where the competency of a grand jury was successfully attacked because it was summoned by an elisor without first showing that the sheriff was disqualified to perform that duty. Under those circumstances, it was held that the grand jury was a body without semblance of authority, and that any indictment returned by it was a nullity and failed to confer jurisdiction upon the superior court to try the defendant. Concerning this point it was said in Fitts v. Superior Court, 4 Cal.2d 514, at page 521, 51 P.2d 66, at page 69, 102 A.L.R. 290: 'A reading of the Bruner Case indicates that it was not decided upon any theory of error or irregularity in the proceedings leading to the impanelment of the grand jury, but that it was based upon the admitted total absence of an essential jurisdictional fact (a finding that the sheriff was disqualified) requisite to the organization of a valid grand jury through the instrumentality of an elisor. * * * Mere irregularities, as distinguished from jurisdictional defects, occurring in the formation of a grand jury, will not justify a court declaring an indictment a nullity. People v. Murphy, 71 Cal.App. 176, 180, 235 P. 51. The true distinction lies between the acts of a body having no semblance of authority to act, and of a body which, though not strictly regular in its organization, is, nevertheless, acting under a color of authority. (Citing cases.)'

In the Fitts case certain indictments were claimed to be void and of no effect because found and returned by 'an invalid and unconstitutionally organized grand jury.' 4 Cal.2d 517, 51 P.2d at page 67. It was argued that the grand jury list was not prepared in substantial compliance with the statutory provisions in that it was not the act of a majority of the judges of the respondent court and the names appended thereto were not apportioned among the several wards and townships as required by law; that the judges were biased and prejudiced as to the type of person who should be selected for service and as to the legal requirement that the grand jury be selected by lot. In line with its distinction of the Bruner case, supra, the court in the Fitts case held that accepting the claimed errors in the method of impaneling the grand jury 'at their face value,' such irregularities did not amount to a jurisdictional defect depriving the respondent court's power to proceed with a trial on the indictments, and that the grand jury was at least a de facto grand jury, with its acts and proceedings deemed valid and entitled to full credit. In re Gannon, 69 Cal. 541, 11 P. 240. Likewise here, accepting defendant's claim of error, such irregularity did not affect the validity of the indictment found against defendant. See People v. Hunter, 54 Cal. 65; People v. Simmons, 119 Cal. 1, 50 P. 844; McFarland v. Superior Court, 88 Cal.App.2d 153, 160, 198 P.2d 318.

Defendant next challenges the correctness of certain instructions. The jury was instructed: 'You may not consider the matter of punishment in determining whether or not the defendant is guilty, or if you find him guilty, in determining the crime or degree of crime of which he is guilty. However, if you find the defendant guilty of murder of the first degree, you may then consider the consequences of the two possible sentences in determining what punishment the defendant should receive. A prisoner sentenced to either death or life imprisonment may be pardoned or may have his sentence reduced by the Governor. A prisoner serving a life sentence may be paroled, but not until has served at least seven years.' (Emphasis added.) It is contended that this instruction, following certain argument by the prosecutor, seriously prejudiced defendant before the jury. The district attorney first stated that life imprisonment would not be a satisfactory punishment for the crime committed, although it might be if it meant that defendant would actually be imprisoned for life. But he added, 'in California the law is that a man under a life sentence is eligible for parole after seven years * * * and * * * any (imprisonment) short of life is not punishment' for defendant 'because he is accustomed to being in jail. * * * That is no punishment for him. * * * He will go out and do something right away again in five months later, six months later, or a year later. * * * When he comes out, who knows what resentment he is going to bear and against whom? It can be anybody. Maybe it will be one of his family; maybe it will be Gracelee; it might be the judge, might be me, might be you, you can't tell.'

In People v. Barclay, 40 Cal.2d 146, 252 P.2d 321, the matter of enlightening the jurors on the consequences of the penalties which they may impose in the event of a verdict of...