People v. Carmen

Decision Date17 August 1954
Docket NumberCr. 5286
CourtCalifornia Supreme Court

Mason A. Bailey, Madera, Leonard J. Bloom, San Francisco, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Winslow Christian, Wallace G. Colthurst and Arlo E. Smith, Deputy Attys. Gen., Andrew J. Eyman, Special Deputy Atty. Gen., George R. McClenahan, Deputy Dist. Atty., San Diego, for respondent.

SHENK, Acting Chief Justice.

A rehearing was granted to give further consideration to the question of receiving additional evidence on appeal in death penalty cases. For reasons hereinafter stated we have concluded that it may not be so received.

The defendant pleaded not guilty and not guilty by reason of insanity to a charge of the murder of Wilbur McSwain. One jury found him guilty of first degree murder, without recommendation, and another found him sane. The judgment sentenced him to death, and the case is here on automatic appeal. There was no motion for a new trial.

The defendant was previously tried on the same charge and found guilty of murder. At that trial he was also found guilty, under a second count, of assault with intent to murder Alvin McSwain, the brother of Wilbur. On appeal this court reversed the judgment of conviction of murder for refusal to give manslaughter instructions and because of the giving of erroneous instructions on first degree murder, but the judgment of conviction on the second count was affirmed. People v. Carmen, 36 Cal.2d 768, 228 P.2d 281.

The evidence at the second trial was substantially the same as at the first. Briefly summarized it shows that on the evening of April 22, 1950, the defendant drove his car to a dance at Yosemite Forks in Madera County. Riding with him were Ella McSwain, Wilbur McSwain, Josephine Davis and Henry Chenot. Alvin McSwain was also at the dance. After the dance many of those attending, including the above mentioned persons, went to a place known as Kilroy's Last Stand, where soft drinks and sandwiches were sold. An altercation occurred in which Alvin McSwain, Henry Chenot and Ted Davis, Josephine's son, pushed the defendant to the ground. When he got up he threatened to kill the 'whole family' and then left for his home 35 to 40 miles away. He obtained a rifle, loaded it, and drove to within 1/8 to 1/4 of a mile from the McSwain home. He approached the house carrying the rifle, and, finding no one there, sat on the front porch. After 15 or 20 minutes he heard a car arrive and approached it. In the front seat of the car were Marion Donnell and Wilbur McSwain, and in the back seat were Ted Davis and Alvin McSwain. The defendant said he was going to kill all of them except Donnell, and he fired a shot across the front seat, striking Wilbur who was then standing on the other side of the car. He then walked toward the back of the car and fired three shots into the back seat, inflicting three wounds on Alvin. Immediately afterwards he was disarmed. Wilbur died from his wound several hours later.

The second trial was solely for the murder of Wilbur, and the defendant urges that it was error to admit evidence of the shooting of Alvin, because, he asserts, the assault was an independent offense other than that for which he was being tried. The shooting of Alvin occurred a few seconds after the defendant shot Wilbur. Alvin and Wilbur were both of the same family, and the defendant had threatened to kill the whole family. These and other circumstances of the case clearly show that the shooting of Alvin was a part of the same transaction in which Wilbur was killed, and evidence pertaining to it was therefore admissible. Code Civ.Proc. §§ 1850, 1870, subd. 7; Pen.Code, § 1102; People v. O'Bryan, 165 Cal. 55, 59, 130 P. 1042; People v. Manasse, 153 Cal. 10, 12, 94 P. 92; People v. McClure, 148 Cal. 418, 421, 83 P. 437; People v. Teixeira, 123 Cal. 297, 298, 55 P. 988; People v. Crowley, 13 Cal.App. 322, 325-326, 109 P. 493. Its relevancy on the issue of the defendant's intent in shooting Wilbur is obvious. People v. Bermijo, 2 Cal.2d 270, 277, 40 P.2d 823; People v. O'Bryan, supra, 165 Cal. 55, 130 P. 1042; People v. Miller, 121 Cal. 343, 53 P. 816; People v. Craig, 111 Cal. 460, 44 P. 186; People v. Walters, 98 Cal. 138, 32 P. 864. The case of People v. Lane, 100 Cal. 379, 34 P. 856, relied upon by the defendant, did not involve factors here present such as the threat by the defendant that he was going to kill the 'whole family' and the carrying out of his threat by killing Wilbur and by attempting to murder Alvin as part of the same affray. See People v. Teixeira, supra, 123 Cal. 297, 298, 55 P. 988, pointing out that in the Lane case one of the two shootings was no part of the other shooting.

In connection with the admission of the foregoing evidence, the defendant asserts that the court improperly instructed the jury. After pointing out to the jury that such evidence had been admitted the court went on to say that it was admitted for a limited purpose only, 'not to prove distinct offenses or continual criminality, but for such bearing, if any, as it might have on the question whether the defendant is innocent or guilty of the crime charged against him in this action. You are not permitted to consider that evidence for any other purpose. * * * The value, if any, of such evidence depends on whether or not it tends to show: (1) the identity of the person who committed the alleged crime in question in this case, if it was committed; or (2) that the defendant had a motive for the commission of the offense charged against him in this action; or (3) that the defendant entertained the intent which is a necessary element of the alleged crime for which he now is on trial, as pointed out in other of my instructions; or (4) that the defendant was familiar with the means alleged to have been used in the commission of the crime of which he is accused in this action; or (5) that the defendant possessed knowledge that might have been useful in the commission of the crime for which he is now on trial; or (6) that there existed in the mind of the defendant a plan, scheme, system or design, into which fitted the commission of the offense for which he now is on trial.' Thereafter the court stated that the jury could consider the evidence for purposes (4) and (5), but could not consider it in connection with those purposes where the other offense involved was a 'later offense.' The defendant's point seems to be that the People knew that the Alvin shooting was a later offense than the killing of Wilbur and therefore should not have offered the instruction embracing (4) and (5). The instruction was somewhat inconsistent, for it said, in the listing of purposes, that the Alvin affair could be considered and, afterwards, that a later offense could not be considered. If there was error, however, we fail to see how it could have prejudiced the defendant. He admitted on the witness stand that he fired the shot which killed Wilbur and that he was thoroughly familiar with the manner of operating the gun, and, accordingly, there was no serious question at the trial with respect to the matters referred to in parts (4) and (5) of the instruction. There is no merit in the defendant's claim that he was not permitted to explain his 'physical condition.' He testified that he had a pain in his head during and after the drive from Kilroy's Stand to his home and stated that it hurt particularly where there was a scar on his head. He was asked what caused the scar and answered: 'I was in an automobile accident, I had a fractured skull, unconscious seven days Mr. Eyman (Special Deputy Attorney General): I am going to object as incompetent, irrelevant and immaterial, if the Court please. The Court: Sustained, it calls for expert testimony.' There was no attempt to strike the defendant's answer, and the sustaining of the objection did not eliminate the answer which had already been given. The defendant was then asked if 'that particular part of your head hurt a little more than the rest of it?' and he replied, 'Yes, it did.' No further questions were asked on this subject, and the matter was dropped. It does not appear that there was any error in sustaining the objection. The materiality or relevancy of the question asked of the defendant was not apparent, and counsel for the defendant did not attempt to explain the purpose of the question or offer to show how an answer might be relevant. In the absence of such a showing no prejudice appears. People v. Danielly, 33 Cal.2d 362, 376, 202 P.2d 18; People v. Reyes, 194 Cal. 650, 652, 229 P. 947; People v. McGann, 194 Cal. 688, 692-694, 230 P. 169.

On the trial of the plea of not guilty by reason of insanity, the court, over the defendant's objection, permitted the prosecuting attorney to open the case and to make the opening argument. Counsel for the defendant declined to argue the case on the insanity plea, and that issue was submitted to the jury after appropriate instructions. The defendant claims that, inasmuch as he had the burden of proof, such order of proof and argument constituted error. That question appears to be settled. 'No section of the Penal Code specifically directs the order of the trial upon a plea of not guilty by reason of insanity, and it has been repeatedly held that defendant has no right to open and close the argument to the jury (People v. Hickman (1928), 204 Cal. 470, 482, 268 P. 909, 270 P. 1117; People v. Goold (1932), 215 Cal. 763, 766, 12 P.2d 958; People v. Kimball (1936), 5 Cal.2d 608, 611, 55 P.2d 483; see also People v. Hardy (1948), 33 Cal.2d 52, 64, 65, 198 P.2d 865) although the trial court may permit him to do so (see People v. Lee (1930), 108 Cal.App. 609, 613, 291 P. 887).' People v. Letourneau, 34 Cal.2d 478, 495, 211 P.2d 865, 875.

At the time set for oral argument of this appeal Mr. Robert Peckham, an assistant...

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