People v. Carmen

Decision Date01 March 1951
Docket NumberCr. 5152
Citation228 P.2d 281,36 Cal.2d 768
CourtCalifornia Supreme Court

Mason A. Bailey, Madera, for appellant.

Fred N. Howser, Atty. Gen. and Doris H. Maier, Deputy Atty. Gen., for respondent.

CARTER, Justice.

Defendant was convicted of first degree murder and assault with intent to commit murder. The punishment was not fixed by the jury. The hearing on his plea of not guilty by reason of insanity resulted in his being found sane by the jury. Judgment was thereupon pronounced imposing the death penalty as punishment for the crime charged in count one and imprisonment in the state prison for the term prescribed by law as punishment for the crime charged in count two. A motion for a new trial as to both counts was made and denied. An appeal comes automatically to this court from the judgment and order denying the motion for a new trial on both counts.

The victim of the killing was Wilbur, also called Murphy McSwain, and the victim of the assault was Alvin, also called Scotty McSwain, a brother of Wilbur.

On Saturday afternoon, April 22, 1950, shortly after 6 o'clock, defendant, a man 39 years of age, casually encountered Mrs. Ella McSwain, Wilbur's mother, Josephine Davis, Ella's cousin, and Alvin McSwain, all lifelong acquaintances, at the town of North Fork in Madera County. At Josephine's request defendant drove the group in his car to the McSwain home a few miles from North Fork. After spending a short time at the McSwain home the women requested that they ride with defendant to Yosemite Forks, that being his destination. Henry Chenot joined the group and they went to Yosemite Forks where they attended a dance. Wilbur McSwain was also at the dance. Nothing unusual happened at the dance. The dance ended about 2 in the morning and many of those attending, including the above mentioned persons, went were not inconsistent, where soft drinks and sandwiches were sold. According to the people's evidence, defendant was there boasting that the army was better than the marine corps and that he was an ex-soldier. Josephine Davis replied that there were a lot of ex-servicemen. Defendant slapped her in the face, and Henry Chenot, Alvin and Wilbur McSwain and others came to the rescue. They pushed defendant to the ground and told him to be-have himself. He was allowed to get up and left for his home alone, some 35 to 40 miles away. When leaving he threatened to kill all of them, the whole 'bunch,' the whole family; that he was going home to get his gun and kill them. In various words seven witnesses who were present at Kilroy's Stand testified to the threat. Witnesses also testified that defendant was not struck in the altercation, and that while he seemed angry when he left, he was otherwise all right. Defendant drove to his home over a winding mountain road (35 to 40 miles away), obtained a rifle and ammunition and proceeded to the McSwain home. He reached the latter one to two hours after having left Kilroy's Stand. He parked his car beside the road about 1/4 of a mile from the McSwain home, although there was available a road going to their place which he had used earlier in the day. He left his car, taking his gun which was loaded with a cartridge in the firing chamber. He walked down a pole line rather than the road to the McSwain house. Finding no-one there he sat on the porch to wait for them. After about 10 minutes he heard a car drive up. He got up from the porch and in so doing accidentally discharged the rifle. He approached the car on its left side. In it were Marion Donnell and Wilbur McSwain in the front seat and Alvin McSwain and Ted Davis in the back seat. He said he was going to kill all of them except Donnell. The latter remonstrated with him and was told to 'stay out of it' or he would be killed. Donnell was on the left side of the front seat. Defendant aimed the gun at those in the front seat and fired, the bullet going behind Donnell's head and striking Wilbur who was then standing by the right front door. Wilbur later died from the wound. He then walked to the back of the car, pointed the rifle into it, and shot three times, inflicting three wounds on Alvin. He was then disarmed by those present and was later taken into custody.

Defendant does not dispute the shooting. In other particulars, however, his story varies with the prosecution's case. He testified that he did not slap Josephine at Kilroy's Stand; he merely patted her 'playfully' on the fact endeavoring to quiet her, she being in an upset condition; that he was struck in the face thereafter and his teeth knocked out; that he suffered severe pain in his head all the time thereafter until and after he was taken into custody; that he does not remember making threats at Kilroy's Stand; that he went to the McSwain home to find out what the trouble was all about and to see what, if anything, he had done wrong. After leaving the porch at the McSwain home and the accidental discharge of the gun, he stepped in a hole while approaching the car and stumbled. When he recovered his balance the rifle came up in a firing position and discharged (the shot that killed Wilbur). He was merely shooting at the car when he wounded Alvin McSwain. He did not say anything prior to or at the time of the shooting. He did not intend to kill or injure anyone. He also testified that he did not remember much of what happened and did not know what he was doing. There is evidence that he purchased a bottle of whiskey and drank some of it in the course of the evening and also drank some beer, but none that he was intoxicated. An officer to whom he made a statement testified that defendant said he fired the gun, not pointing at anyone but just to scare the McSwains.

There is no contention that the evidence was insufficient to support the conviction of first degree murder and it is clearly ample. Defendant urges that the court erred in refusing to give the jury instructions on manslaughter. The court remarked during the argument to the jury that it would give no such instructions and refused the following instruction offered by defendant: 'Manslaughter is the unlawful killing of a human being without malice. Two kinds of manslaughter, the definitions of which are pertinent in this case, are:

'1. Voluntary manslaughter, which is that committed upon a sudden quarrel or heat of passion.

'2. Involuntary manslaughter, which is that done in the commission of an unlawful act not amounting to a felony, or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.' The prosecution also offered instructions on manslaughter but the trial judge refused to give them.

It is a settled rule that jury instructions must be responsive to the issues. The issues in a criminal case are determined by the evidence. Here there was evidence which raised the issue of manslaughter. No instructions were given on this issue, although they were requested by both sides. Section 1127 of the Penal Code provides: '* * * The court shall inform the jury in all cases that the jurors are the exclusive judges of all questions of fact submitted to them and of the credibility of the witnesses.' (Emphasis added.) It has been held that a defendant is entitled to instructions on his theory of the case as disclosed by the evidence, no matter how weak. As so ably stated in People v. Burns, 88 Cal.App.2d 867, 871, 200 P.2d 134, 136 with ample citation of authority: 'It is elementary that the court should instruct the jury upon every material question upon which there is any evidence deserving of any consideration whatever. People v Quimby, 6 Cal.App. 482, 486, 92 P. 493; People v. Foster, 79 Cal.App. 328, 337, 249 P. 231; People v. Hill, 76 Cal.App.2d 330, 343, 173 P.2d 26. The fact that the evidence may not be of a character to inspire belief does not authorize the refusal of an instruction based thereon. People v. Perkins, 75 Cal.App.2d 875, 881, 171 P.2d 919; People v. Peete, 54 Cal.App. 333, 356, 359, 202 P. 51; People v. Wong Hing, 176 Cal. 699, 705, 706, 169 P. 357. That is a question within the exclusive province of the jury. However incredible the testimony of a defendant may be he is entitled to an instruction based upon the hypothesis that it is entirely true. People v. Perkins, supra, 75 Cal.App.2d page 881, 171 P.2d (919) page 921; People v. Williamson, 6 Cal.App. 336, 339, 92 P. 313; People v. Keefer, 65 Cal. 232, 234, 3 P. 818. It is the duty of the court to instruct the jury in regard to any included offense which the evidence tends to prove. People v. Stofer, 3 Cal.App. 416, 418, 86 P. 734; People v. Carroll, 20 Cal.App. 41, 45, 128 P. 4; People v. Wilson, 29 Cal.App. 563, 564, 156 P. 377; People v. Mock Ming Fat, 82 Cal.App. 618, 256 P. 270; People v. Driscoll, 53 Cal.App.2d 590, 593, 128 P.2d 382. In People v. Carroll, supra, 20 Cal.App., the court said page 45, 128 P. (4) page 6: 'It is undoubtedly the rule that, where there is any evidence from which a reasonable inference may be drawn that the crime of which the defendant was convicted was of a lesser degree * * * it is prejudicial error to withdraw from the jury the consideration of such evidence and confine the instructions to the crime (charged). " (Emphasis added.)

It has been repeatedly held that it is reversible error to refuse a manslaughter instruction in a case where murder is charged, and the evidence would warrant a conviction of manslaughter. People v. Wilson, 29 Cal.App. 563, 156 P. 377; People v. Hayes, 9 Cal.App. 301, 99 P. 386; People v. Sidelinger, 9 Cal.App. 298, 99 P. 390; People v. Darrow, 212 Cal. 167, 298 P. 1; People v. Wallace, 2 Cal.App.2d 238, 37 P.2d 1053; People v. Best, 13 Cal.App.2d 606, 57 P.2d 168.

It is said in People v. Hayes, 9 Cal.App. 301, 305, 99 P. 386, 388, quoting from Stevenson v. United States, 162 U.S. 313, 16 S.Ct. 839, 40 L.Ed. 980:...

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