People v. Collins

• Citation: 189 Cal.App.2d 575,11 Cal.Rptr. 504
• Decision Date: 01 March 1961
• Docket Number: Cr. 7383
• Court: California Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Harvey Meyers COLLINS, Defendant and Appellant.

Page 504

11 Cal.Rptr. 504

189 Cal.App.2d 575

PEOPLE of the State of California, Plaintiff and Respondent, v. Harvey Meyers COLLINS, Defendant and Appellant.

Cr. 7383.

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

March 1, 1961.

Hearing Denied April 26, 1961.

Ellery E. Cuff, Public Defender of Los Angeles County, Fred Kilbride and James L. McCormick, Deputy Public Defenders, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Norman H. Sokolow, Deputy Atty. Gen., for respondent.

VALLEE, Justice.

By information defendant was accused of the murder of Raymond Whiteside. In a nonjury trial the court found him guilty of voluntary manslaughter and sentenced him to state prison. He appeals from the judgment.

Defendant's contention is that the finding of guilt of manslaughter is unsupported by the evidence and is countrary to law. He asserts the evidence, as a matter of fact and law, is insufficient to prove manslaughter; to the contrary, the evidence establishes a justifiable homicide under Penal Code, § 197. Since we have concluded that defendant's contention is well taken, it is necessary to state all the pertinent evidence.

Raymond Whiteside at the time of his death was living in a room at the Eugene Hotel, 560 Stanford Avenue, Los Angeles. The hotel was owned by Katsuske Shishima. Joseph Poirier lived across the hall from the deceased. Between 6 and 6:30 p. m. on February 24, 1960, a Wednesday, Mr. Poirier saw defendant and Whiteside at the latter's door. Whiteside 'was carrying something like a bundle under his arm wrapped in brown paper.' Defendant 'was carrying a bag. It looked like a jumbo bottle of beer.' About 9 a. m. on February 26 Mr. Shishima went to Whiteside's room to clean it. Whiteside was lying on his back, partly across the side of the bed; his feet were on the floor. He was unde below the waist, except his socks were on. His genital organs were exposed. There was blood around his mouth. There were two empty bottles on the bed, one on each side on Whiteside; one of them appeared to be a broken catsup bottle; the other appeared to be an empty jumbo beer bottle. There was another bottle on the floor.

Mr. Poirier, called by the People, testified: The morning of the 26th Mr. Shishima called him and he went into Whiteside's room. He felt Whiteside's wrist; there was no pulse; the body was 'real cold.'

Donavan Cullings of the Los Angeles Police Department, called by the People, testified: On March 1, 1960, with his partner Officer Hanson present, he had a conversation with defendant. The statements made by defendant were free and voluntary. 'I asked the defendant if he knew Raymond Whiteside. He said yes. I asked him if he had a fight with Raymond and he said no. I asked him now Raymond looked when he left after visiting with him Wednesday night, February 24, and he said he was sitting on the bed. That is about the substance of the first conversation.' On March 2 he had a second conversation with defendant. The same persons were present. The statements made by defendant were free and voluntary. The conversation, as testified to by Officer Cullings, was as follows: 'I asked the defendant if he knew Raymond Whiteside and he said yes. He said, 'I might as well tell you what happened on Wednesday night.' He said, 'I met Raymond on East Fifth Street and told him I was hungry.' Raymond wanted to buy the defendant a drink and defendant said no, he was hungry. Raymond said, 'If you will come up to my room I'll give you something to eat.' They stopped at a liquor store and bought a bottle of wine and a bottle of beer. Raymond carried the bottle of wine and the defendant carried the bottle of beer. They went to Raymond's room at the Eugene Hotel and the defendant said he didn't have anything to drink, but Raymond drank some wine. The defendant told me that Raymond got undressed, took his pants and shoes off, and then grabbed Mr. Collins, the defendant, and attempted to molest him. Mr. Collins got frightened--he said he was frightened. He grabbed a wine bottle off of the night stand and hit Raymond in the face five or six times; he didn't remember how many times. Mr. Collins said that when Raymond quit struggling he got up off the bed, pulled his pants up, which Raymond had almost pulled off. He got his jacket off of a chair, went out of the room, closing the door. That is about the substance of the second conversation.

'Q. Did you ask the defendant if he had ever had similar sexual experiences, or any sexual experiences with the deceased in the past? A. Yes, sir, I did.

'Q. What did he tell you? A. He admitted having sexual relations with Mr. Whiteside on two prior occasions.

'Q. Was that the gist of your conversation, Officer? A. That is about all of it, sir.'

On cross-examination Officer Cullings testified:

'Q. Did he tell you whether or not on the occasion of the 24th he had been drinking, that is, whether the defendant had been drinking? A. He said he hadn't anything to drink Wednesday night.

'Q. Did he tell you that he did, however, generally speaking, do considerable drinking? A. Yes.

'Q. And did he indicate to you that on these prior occasions when he had been with Whiteside whether he had been drinking? A. I don't remember asking him that, sir.

'Q. You don't remember whether he made a statement clarifying that or not? A. No, sir.

'Q. When he told you about the prior act or acts, did he indicate to you that the deceased, Whiteside, had orally copulated the defendant's penis? A. No, sir.

'Q. Did he make it clear to you just what he had done? A. Yes.

'Q. What did he say he had done? A. He said Raymond made Mr. Collins play the part of the woman and had approached him from the rear, sir.

'Q. In other words, a violation of Section 286 of the Penal Code, that being the one which denounces sodomy? A. Yes, sir.

'Q. Did the defendant tell you that he knew how many blows he struck against Whiteside? A. No, sir.

'Q. Did he tell you that he struck at Whiteside until the hands of Whiteside let go? A. No. He struck at Whiteside until Whiteside's legs relaxed.

Whiteside had a scissors grip around his waist with his legs.

'Q. Did he tell you that he then ceased to strike him? A. Yes, sir.

'Q. And that he immediately left the room? A. Yes, sir.

'Q. Did you ask him why he struck these blows? A. Yes. He said he ws afraid of what was going to happen.

'Q. Did he tell you he was afraid that Whiteside as going to either sodomize him or commit fellatio on him? A. Pardon?

'Q. Is there a problem about the language I used? A. No. He said he just was afraid of Whiteside. He didn't go into detail.

'Q. He did not specify? A. No, sir.

'Q. I'd like to call your attention to your testimony regarding the meeting of the defendant and Whiteside on the street, and as to their conversation regarding possibly feeding the defendant. At the preliminary hearing did you testify to this effect? I'm going to pag 38 of the transcript, lines 13 to 16. At the preliminary hearing did you say this--and let me show you the transcript first, Officer. I will ask you to look at page 38 and read lines 11 through 20, if you would, please. A. Out loud?

'Q. No, just to yourself. A. (Witness reads to himself the portion indicated.)

Q. At the time of the preliminary, did you testify as follows: 'I met Ray Wednesday night on Fifth Street and he asked me if I wanted a beer. I told him no, I was hungry, and he said, 'Come on up to my room anyway.'' Was that your testimony at that time? A. Yes, sir.

'Q. Do you feel that that is at all different from your testimony today regarding the conversation on the street? A. No, sir.

'Q. At the present time, do you recall the defendant telling you that Ray said, 'Come on up to my room anyway'? A. Yes, sir.

'Q. Did the defendant tell you that from time to time he would borrow small sums of money from his sister, and also that she would give him food? A. Yes, sir.

'Q. That is in the period before and after February 24? A. Yes, sir.

'Q. Did you ask the defendant whether he remembered seeing any blood about the body of the deceased? A. I don't recall asking him, no.

'Q. Do you remember whether he made a statement that he did or didn't recall seeing the blood? A. No. I showed him a picture and he said, 'That is the way Raymond looked when I left.'

'Q. Did the defendant tell you that he returned to the hotel the following Saturday? A. Yes, sir.

'Q. And did he tell you that he returned there to tell Mr. Whiteside he was sorry he hit him? A. Yes.

'Q. Did you arrest the defendant yourself? A. No, sir.

'Q. To your knowledge, did the defendant leave his name and address with the room clerk at the hotel there on request? A. Yes, sir. * * *

'The Witness: I have a slip of paper on which he wrote the name and address.

'Q. By Mr. Kilbride: You have the very slip of paper he wrote his name and address on? A. Yes. * * *

'Q. Did you yourself ever go to that address? A. Yes, sir.

'Q. Did you you ascertain that it was Collins' address? A. Yes, sir.

'Q. Would you describe the defendant from your own physical observation of him as a strong, powerful man? A. No, sir. * * * 'The Court: On the day in question when you interviewed him, approximately how much did he weigh?

'The Witness: Oh, 125 pounds. * * *

'Q. By Mr. Kilbride: Does he appear to be about the same height today as he was when you interviewed him on the 24th? A. Yes, sir.

'Q. Could you tell us what his height was on the 24th, approximately? A. Oh, five foot five, or so.'

'Q. Officer Cullings, since you were last on the stand, have you had an opportunity to listen to a portion of the tape? A. Yes.

'Q. That was the terminal portion of the tape? A. Yes.

'Q. And do you recall either you or Officer Hanson asking the defendant if he wanted to say anything or ask anything? A. Yes, sir.

'Q. Then, what did the defendant ask or say at that time? A. He asked us if we thought ...