People v. Deacon

• Decision Date: 06 April 1953
• Docket Number: Cr. 2832
• Citation: 117 Cal.App.2d 206,255 P.2d 98
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE v. DEACON.

Page 98

255 P.2d 98

117 Cal.App.2d 206

PEOPLE v. DEACON.

Cr. 2832.

District Court of Appeal, First District, Division 2, California.

April 6, 1953.

Albert E. Polonsky, San Francisco, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., and Charles E. McClung, Deputy Atty. Gen., for respondent.

DOOLING, Justice.

Appeal from a judgment of conviction of second-degree murder and from the order denying a motion for new trial. The principal complaint is the alleged misconduct of both the trial judge and the prosecutor. Also cited are an instruction on first-degree murder and the admission of certain evidence.

Dana Clark died of knife wounds on August 12, 1951 in appellant's San Francisco apartment. Deacon and Clark had been friends for a murder of years. Clark was an excessive drinker. They were together on the day in question and, with three other people, had some drinks in a bar. About 9:45 p. m. on the night in question Deacon went to one Vaughn's apartment, which was in the same building as his own, to get some ice. The ice was for Clark who had been beaten by Deacon in Deacon's apartment. Deacon said he had 'blown his top'. Vaughn went back to his own apartment and Clark remained in Deacon's. At about 11:50 p. m. Vaughn saw Deacon again when Deacon rang Vaughn's doorbell and said 'Call an ambulance' and 'Dana is dying' and 'I think I have killed Dana.' Vaughn then went to Deacon's apartment and found Clark dead, lying on his back on the bed with a wound near his heart. Vaughn identified a knife that he had used in cracking the ice earlier in the evening and said he had left it on the sink where he had used it. Deacon never told Vaughn that Clark had killed himself. Clark had expressed a sullen wish to kill himself after he had been beaten. Vaughn did not see any knife when he went into Deacon's apartment after Clark had been stabbed. The knife was found in the kitchen and was clean. The autopsy showed that, although there was only one surface wound, there were three internal wounds indicating that the knife was thrust three times through the same opening. It was the expert's opinion that it was 'very unlikely' that the wounds were self inflicted. Deacon testified that Clark was drunk and despondent and that finally he, Deacon, threw the knife to Clark and told him to use it or stop talking about it. Deacon further testified that Clark did use it himself, which Deacon saw and Deacon then grabbed the knife, withdrew it and threw it into the kitchen. He had felt he was morally responsible for the death, but he did not kill Clark. The cause of the previous beating given Clark by Deacon does not appear other than that he 'blew his top', nor is there further motive shown for a killing. The evidence however is very convincing of a killing rather than a suicide especially in light of the expert's testimony and Deacon's admission to Vaughn, immediately after Clark's death: 'I think I have killed Dana.'

There were no objections made to the cited conduct which is characterized as misconduct. Appellant would make use of an exception to the usual rule, that in cases where the objection would be fruitless it is not necessary. But, appellant also points out that no particular acts or statements by the judge or prosecutor may be harmful in itself. What he complains of is the sum of the particular incidents. The exception mentioned above applies to those situations where the conduct is so flagrantly obnoxious that a verbal objection or admonition would not erase it from the minds of the jurors. In People v. Mahoney, 201 Cal. 618, 258 P. 607, it was pointed out that any admonition would have been disregarded by the jury in a case where the remarks of the judge were particularly distasteful. The problem really is whether a judicious admonition would have cured any prejudicial effect conveyed to the jury. People v. Weeks, 104 Cal.App. 708, 286 P. 514. Appellant likens his case to People v. Burns, 109 Cal.App.2d 524, 241 P.2d 308, 242 P.2d 9. But in that case there were a number of errors of law as well as improper remarks made in a close case.

The first assignment of error is directed to the court's volunteering an objection that a question by defense counsel assumed something not in evidence. It hardly seems prejudicial, but rather quite proper. Next are listed a series of citations which are hardly necessary of quotation. All they amount to is interruption by the court in cases of nonresponsive answers, immaterial questions and poorly taken objections. The interruptions appear entirely proper and indicate no prejudice whatsoever. The next citation is the court's volunteered objection to testimony of a witness about something he had not directly witnessed. The entire colloquy is nothing more than an argument over different interpretations of the evidence. The court would not let certain evidence in because it was hearsay. It further told defense counsel that night sessions would be held if the trial did not get along. This does not appear prejudicial either. Further, the court interrupted defense counsel's opening statement on its own motion to point out that what was being said would not be material to the case. These appear to be proper remarks in the interest of confining the case to its issues. There certainly could be no prejudice from them. A judge may properly exclude inadmissible testimony even though no objection is made. People v. Yuen, 32 Cal.App.2d 151, 160, 89 P.2d 438, 90 P.2d 291; People v. Parry, 105 Cal.App.2d 319, 322, 232 P.2d 899.

In two instances the court sought by itself to elicit testimony from defendant concerning what liquor was bought and drunk by him and decedent. The questions were all proper, material and directly in point. Appellant complains that the court should not have taken it upon itself to ask these questions. It is not argued that the questions were aimed at discrediting appellant, and the trial...