People v. Curry

• Decision Date: 29 May 1961
• Docket Number: Cr. 1560
• Citation: 13 Cal.Rptr. 596,192 Cal.App.2d 664
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. George Albert CURRY, Defendant and Appellant.

Page 596

13 Cal.Rptr. 596

192 Cal.App.2d 664

PEOPLE of the State of California, Plaintiff and Respondent, v. George Albert CURRY, Defendant and Appellant.

Cr. 1560.

District Court of Appeal, Fourth District, California.

May 29, 1961.

Monroe & Chula and George H. Chula, Santa Ana, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Jack K. Weber, Deputy Atty. Gen., for respondent.

SHEPARD, Justice.

Defendant was tried by a jury under an indictment for murder, and was convicted of murder, second degree. The appeal is from the verdict, the order denying the motion for a new trial, the judgment and the sentence. This will be treated as an appeal from the judgment and from the order denying motion for a new trial. People v. Sweeney, 55 Cal.2d 27, 9 Cal.Rptr. 793; People v. Gotham, 185 Cal.App.2d 47, 8 Cal.Rptr. 20; People v. Carlson, 177 Cal.App.2d 201, 207, 2 Cal.Rptr. 117.

Viewing the evidence, as we must, in the light most favorable to the verdict (People v. Love, 53 Cal.2d 843, 850[1-2], 3 Cal.Rptr. 665), the facts presented by the record before us are substantially as follows: On October 6, 1959, from a window of his residence in Garden Grove, defendant shot with a .22 calibre rifle at or toward workmen engaged in construction work on an apartment house nearby. The first shot struck within four feet of one of the laborers. The second shot missed another laborer by only eighteen inches. There had been some previous irritation, spoken of in defendant's family, about some of the workmen on the apartment house job depositing debris on defendant's lot, but the irritation had apparently not been spoken of to the workmen by defendant. Shortly after these first shots were fired, the police were notified. Several police officers shortly arrived. Officer Trapp, who ultimately became the victim, used the loudspeaker of the police car public address system, several times calling to defendant that they were officers, that the house was surrounded, and for defendant to come out. Upon defendant's failure to appear, officer Trapp knocked on defendant's rear door, and again announced in a loud voice that they were officers and for defendant to come out unarmed. Officer Jacobs, in uniform, opened the rear door. Defendant, sitting on a couch with a rifle on his lap, raised his rifle and pointed it at Jacobs. Jacobs left the door, and Trapp moved in a wide arc towards the front of the house. Officer Runyon was standing near the front door. As Trapp came into view in the front yard, defendant fired and killed Trapp. Again one of the officers called for defendant to come out with his hands up, that an officer had been hit.

Officer Roach then attempted to enter a window in the rear bedroom calling to defendant: 'I am a police officer. Drop the gun.' Roach was in uniform. Defendant again first the rifle. Roach felt a sting in his left hand, but whether it was struck by a bullet or by flying glass is not made clear by the record. Several shots were fired by the officers. Defendant then called, 'Don't shoot, don't kill me, I surrender.' He came to the screen door with his hands up, repeating the same or similar words. He was then again ordered to come out slowly, and he complied. Defendant was placed under arrest, the house was immediately searched, and defendant was found to be the sole occupant. Two rifles, partly loaded, and several expended shells were found on the floor.

In the police car on the way to the police station, defendant said, 'I know what I have done and I am sorry.' He also repeated over and over: 'I didn't mean to kill that police officer, honestly, believe me, I know what I have done, but I had no intentions of doing it. I know what will happen to me, I'm done.' Later he stated he was shooting at some construction workers who were dumping trash in his yard. Still later, defendant was interrogated at length and at the close of the interrogation, a tape recording was made of questions and answers purporting to amount to a summation of the facts developed by the interrogation. On stipulation of both counsel, this tape recording and a transcription thereof were placed in evidence. A second tape recording of another interrogation was also placed in evidence on stipulation of both counsel.

The chief defense was a claim of intoxication to the extent of inability to form intent. There is little doubt that defendant had, in fact, imbibed considerable intoxicating liquor. However, the evidence as to the extent of his intoxication and his understanding of what he was doing is in substantial conflict.

Indictment Form

Defendant complains that the indictment form fails to allege the defendant's intention, premeditation and deliberation, and that it does not give him notice of 'the specific crime' upon which to prepare his case. He was charged with murder as defined by Penal Code, section 187. People v. Coston, 84 Cal.App.2d 645, 646-648, 191 P.2d 521. The sole purpose of the indictment is to inform the defendant of the charge he must meet at trial. People v. Massey, 151 Cal.App.2d 623, 648, 312 P.2d 365. The transcript of the testimony upon which the indictment was founded informs defendant of the particular circumstances. People v. Marshall, 48 Cal.2d 394, 399, footnote 5, 309 P.2d 456; People v. Carella, 191 Cal.App.2d 115, 12 Cal.Rptr. 446. The indictment form is sufficient. The complaint in that respect is without merit.

Failure to Demur

Defendant was furnished, prior to arraignment, with a copy of the indictment and of the transcript of the testimony upon which the indictment was based. He did not demur to the indictment, as provided by Penal Code, section 1004. All objections appearing on the face of an indictment are waived by failure to demur before plea except as to jurisdiction of the court over the subject matter of the indictment and failure to state facts sufficient to constitute a public offense. People v. Brac, 73 Cal.App.2d 629, 634, 167 P.2d 535; People v. Schoeller, 96 Cal.App.2d 61, 62, 214 P.2d 565. Neither want of jurisdiction nor failure to state facts constituting a public offense are present in the case here at bar. Thus, even had the indictment been uncertain in some minor respect (which it was not), such objection was waived by failure to demur.

Admissions

Defendant next contends there was error in the introduction and use of tape recordings of interrogation of defendant. This objection is likewise without merit. Not only was there no objection to the introduction of these recordings, they were both actually introduced on stipulation of both counsel. Adequate foundation was properly laid by the prosecution for their introduction, and there was no valid reason why they should not be heard by the jury. People v. Albert, 182 Cal.App.2d 729, 736, 741, 742[15b], 6 Cal.Rptr. 473.

Due Process

Defendant contends he was denied due process of law because he was interrogated for four and one-half to five hours, and cites such authorities as Watts v. State of Indiana, 338 U.S. 49, 69 S.Ct. 1347, 93 L.Ed. 1801; Harris v. State of South Carolina, 338 U.S. 68, 69 S.Ct. 1354, 93 L.Ed. 1815; Smith v. O'Grady, 312 U.S. 329, 61 S.Ct. 572, 85 L.E. 859; Chambers v. State of Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716; and other cases.

All of these cases are clearly distinguishable on facts. Unlike the various situations discussed in those cases, it is clear in the case at bar that defendant was informed anc clearly understood the charge against him. He was informed he would need an attorney, but he did not ask for an attorney. He was forty-five years of age, and apparently had had substantial previous serious contacts with law enforcement officers. There is no contention that force or threats were used. In fact, in his own testimony, although defendant felt some questions of the officers were leading or confusing, he stated of the officers, 'I didn't say they were unfair.'

That defendant may have been partially intoxicated did not make his statements inadmissible nor destroy their voluntary character. People v. Dorman, 28 Cal.2d 846, 854, 172 P.2d 686; People v. Byrd, 42 Cal.2d 200, 211, 266 P.2d 505. Whatever truth there may be in the old proverb, 'In vino veritas', the matter of intoxication as presented under the facts in the case here at bar, clearly goes to the weight of the testimony and not to admissibility. Bell v. United States, 60 App.D.C. 76, 47 F.2d 438, 74 A.L.R. 1102; People v. Farrington, 140 Cal. 656, 661, 74 P. 288.

Partial Recording

Defendant complains that one of the tapes should not have been received in evidence because it was a record of only a part of the interrogation. In one of the recordings the questions and answers occupied only the last twenty or thirty minutes of the interrogation, the officers apparently attempting to secure a summation of the results of the previous interrogation. There is no contention whatever that the tape was 'doctored' or 'cut', or that it misrepresented what occurred during that period of recording. Defendant merely complains that the whole of the previous interrogation was not recorded.

There is no merit in this contention. People v. Porter, 105 Cal.App.2d 324, 331, 233 P.2d 102. We are satisfied that there was no denial of due process nor error in the admission of the tape recordings of defendant's statements.

Discovery

Defendant next contends he was denied a fair trial because the court failed to grant all of his blanket motions for notes, written statements and tape recorded interviews with various persons who were possible witnesses. Actually, although defendant's motion was tardy and without any supporting affidavits, the trial court did, in fact, grant defendant's motion as to all witnesses used by the prosecution, all eyewitnesses, and most of the physical evidence. It also informed defendant he might renew his motion on further affidavit. The motion was not renewed. It is true that production may...