People v. Carnine, Cr. 5423
| Decision Date | 14 August 1953 |
| Docket Number | Cr. 5423 |
| Citation | 41 Cal.2d 384,260 P.2d 16 |
| Court | California Supreme Court |
| Parties | PEOPLE v. CARNINE. |
Paul Golis and Maurice Fredericks, Santa Rosa, under appointment by the Supreme Court, for appellant.
Edmund G. Brown, Atty. Gen., Doris H. Maier, Deputy Atty. Gen., Joseph Maddux, Dist. Atty., Sonoma, and William G. Luckhardt, Deputy Dist. Atty., Santa Rosa, for respondent.
This appeal is from a judgment imposing the death penalty following defendant's conviction of first degree murder.
The following facts are undisputed: On September 9, 1952, defendant came to Santa Rosa from his mother's and stepfather's home a short distance out of town. He arrived before noon and spent most of the afternoon in the Lido Bar drinking beer and talking to the bartender and other patrons. About 5 p. m. he left the bar and went to Mr. Rosenbaum's near-by clothing store. He observed a salesman with a sample case talking to Mr. Rosenbaum and did not enter. He walked round the block returned to the Lido Bar, and about 15 minutes later returned to Mr. Rosenbaum's store. Mr. Rosenbaum was then alone, reading a newspaper. Defendant entered the store, and after conversing with Mr. Rosenbaum, struck him twice on the side of the face and head. Mr. Rosenbaum fell to the floor, and defendant dragged him into a washroom toward the rear of the building. Defendant took money from his wallet, packed a suitcase with clothing from the store, and took it with him when he left the scene in Mr. Rosenbaum's car. He waited on one or two customers before he left the premises. Two days later Mr. Rosenbaum's body was discovered in the washroom. There was a leather thong tied round his neck and several small puncture wounds in the upper part of his body. Death was caused by shock and hemorrhage owing to laceration of the face and scalp and congestion and edema of the lungs owing to strangulation. After leaving the store, defendant drove to his parents' home and then to a ranch where he had been employed. Later he returned to Santa Rosa, where he left Mr. Rosenbaum's car. On the evening of the 11th, the same day Mr. Rosenbaum's body was found, he took a bus to San Francisco where he was apprehended.
Defendant pleaded not guilty and not guilty by reason of insanity. He testified that he went to the store to buy work clothes. Mr. Rosenbaum was a friend of his and had lent him $25, which defendant had not repaid. After he had bought the clothes he had an argument with Mr. Rosenbaum about the loan. He struck Mr. Rosenbaum twice but did not intend to kill him. He did not remember dragging him into the washroom or tying the thong round his neck or stabbing him. It was not until after he had left Mr. Rosenbaum in the washroom and had started to leave the store that he decided to return and take the money, clothing, and the car.
Although there is no dispute that defendant had been drinking before he attacked Mr. Rosenbaum, witnesses who saw him both shortly before and after the crime testified that he was not intoxicated. He remembered and described most of the events that occurred at the time. In a statement made to the district attorney and the police the day after his arrest, he said that he had bought the work clothes from Mr. Rosenbaum earlier in the day and not at the time of the attack. In that statement he made no reference to a quarrel about a loan.
On the trial of the issue of not guilty by reason of insanity, four psychiatrists testified, one for the prosecution and three who had been appointed by the court. They were all of the opinion that defendant was legally sane at the time of the commission of the crime. Testifying in his own behalf, defendant described some of his background and past experiences. He stated that he knew it was wrong to kill except when in military service or in self defense. None of the psychiatrists were of the opinion that anything in defendant's testimony indicated legal insanity. No witness testified that defendant was legally insane.
The foregoing evidence is sufficient to support a finding that defendant committed the homicide in the perpetration of robbery or burglary, that he was legally sane at the time of the crime, and that he is therefore guilty of murder of the first degree. Penal Code, § 189. Defendant contends, however, that the trial court committed prejudicial error by refusing to instruct the jury on his theory of the case. He offered the following instruction, which the trial court refused to give on the ground that it was not the law.
'If you find that Defendant Arthur Carnine had not formed an intention to rob Isroil Rosenbaum until after he struck Isroil Rosenbaum, dragged his body into the washroom, and left his body lying on the floor of the washroom; then you are instructed that Isroil Rosenbaum was not killed by Arthur Carnine in the perpetration of or an attempt to perpetrate, the crime of robbery.'
According to defendant's testimony he never intended to kill Mr. Rosenbaum and did not decide to take the property until after the attack had terminated. As stated in People v. Kerr, 37 Cal.2d 11, 13-14, 229 P.2d 777, 778, where the same defense was advanced in a similar factual situation, Accordingly, the instruction should have been given.
It may not reasonably be contended that the error was cured by the following general instructions with respect to murder that were given by the court.
'Murder which is committed in the perpetration or attempt to perpetrate the crime of robbery, is declared by law to be murder of the first degree, and if you should find, beyond a reasonable doubt and to a moral certainty, that the defendant, Arthur C. Carnine, killed Isroil Rosenbaum in the perpetration or attempt to perpetrate the crime of robbery, as those terms are defined herein, you will have no choice but to designate the offense as murder in the first degree.
'Murder which is committed in the perpetration or attempt to perpetrate the crime of burglary, is declared by law to be murder of the first degree, and if you should find, beyond a reasonable doubt and to a moral certainty, that the defendant, Arthur C. Carnine, killed Isroil Rosenbaum in the perpetration or attempt to perpetrate the crime of burglary, as those terms are defined herein, you will have no choice but to designate the offense as murder in the first degree.
'Robbery in defined by Section 211 of the Penal Code as follows: 'Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.'
'In so far as this case is concerned, the crime of burglary is defined by section 459 of the Penal Code as follows: 'Every person who enters any * * * store * * * or other building with intent to commit grand or petit larceny or any felony, is guilty of burglary.'
'The word 'perpetration' as used in these instructions, is defined as the doing or performance or commission of an act consciously or with a guilty intent, to commit the offense or offenses charged as a wicked deed.
'If you find that the defendant Arthur Carnine had not formed an intention to burglarize Isroil Rosenbaum's store until after he struck Isroil Rosenbaum, dragged his body into the washroom and left his body lying on the floor of the washroom if he did such acts, then you are instructed that Isroil Rosenbaum was not killed by Arthur Carnine in the perpetration of, or an attempt to perpetrate, the crime of burglary.'
There is nothing in the foregoing instructions that sets forth defendant's defense to the charge of murder committed in the perpetration of robbery. It is not improbable that the jory concluded that a...
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