People v. Friend

• Decision Date: 25 January 1957
• Docket Number: Cr. 5800
• Citation: 47 Cal.2d 749,306 P.2d 463
• Court: California Supreme Court
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Wilbert Felix FRIEND, Defendant and Appellant.

Page 463

306 P.2d 463

47 Cal.2d 749

The PEOPLE of the State of California, Plaintiff and Respondent, v. Wilbert Felix FRIEND, Defendant and Appellant.

Cr. 5800.

Supreme Court of California, in Bank.

Jan. 25, 1957.

John R. Sorbo, San Diego, for appellant.

Edmund G. Brown, Atty. Gen., and William E. James, Deputy Atty. Gen., for respondent.

SCHAUER, Justice.

Defendant appeals (by virtue of paragraph (b) of section 1239 of the Penal Code) from a judgment which imposes the death penalty after a jury verdict which found defendant guilty of murder of the first degree and was silent as to penalty, and from an order denying defendant's motion for new trial. We have concluded that the issue of guilt was fairly tried and that the judgment and order denying a new trial should be affirmed insofar as relates to the conviction of murder of the first degree, but (in accord with People v. Green (1956) 47 Cal.2d 209, 302 P.2d 307) must be reversed and the cause remanded for a new trial on the issue of penalty only, because there were prejudicial errors which resulted in a miscarriage of justice (Cal.Const., art. VI, § 4 1/2) affecting solely the issue of punishment.

At the trial no evidence was offered by defendant. From the prosecution evidence, including voluntary statements of defendant to officials which demonstrate abjectly honest attempts of defendant to recall and recount the circumstances of the killing, the following appears:

On the evening of August 31, 1936, defendant, after consuming an unknown quantity of gin and losing money playing pool, walked along the beach in La Jolla. Defendant needed funds and decided to rob any victim he might find. He removed a leg from a picnic table or bench with the purpose of using it as a club. Defendant walked until he saw Ruth Muir sitting alone on a bench. He approached her from behind, struck her on the head with the club, dragged her to a nearby ditch, and attempted to rape her. He was unable effectively to carry out his purpose to rob because Miss Muir had no valuable possessions. Her death was caused by fractures of the skull and many other injuries.

The body was discovered on September 1, 1936. On that day defendant was working as a caddy at a golf course; he there learned that his victim had died. Asked what he did then, he replied, 'Oh, I stuck around there for two three hours, and then I took off, caught a streetcar to San Diego, and I thought I'd try to get away from myself and I couldn't do it * * *' The preceding night's events, even at that time, he thought, seemed 'like more or less a dream, * * * but I still had it in my mind what I did.'

On September 12, 1936, police officers left a note on a tent which defendant used as a dwelling. The note asked defendant to call at the police station. Defendant returned to his tent shortly thereafter. He found the note and called at the police station as requested. He was questioned concerning the killing of Miss Muir, denied knowledge of it, and was not held. The crime remained an unsolved mystery for nearly nineteen years, until defendant, who had changed his manner of living, himself provided the solution.

In May, 1955, defendant, who had been living in Detroit, returned to California, telephoned a reporter, and stated that he wished to confess to the killing of Miss Muir. Defendant was subsequently arrested and made the above mentioned voluntary statements which are in evidence. Police at first doubted his confession but he persisted and satisfied them as to his veracity. He explained that he had previously refrained from confessing because he had not wanted to hurt people dear to him, and that he had determined to confess inasmuch as his father had died in 1945, his mother in 1953, and his wife in 1954, and there was no one left who would be particularly shamed or hurt by his confession. ¹

Defendant complains of the italicized portion of the following instruction: 'You may not consider the matter of punishment in determining whether or not the defendant is guilty, or if you find him guilty, in determining the crime or degree of crime of which he is guilty. However, if you find the defendant guilty of murder of the first degree, you may then consider the consequences of the two possible sentences in determining what punishment the defendant should receive. A prisoner sentenced to either death or life imprisonment may be pardoned or may have his sentence reduced by the Governor. A prisoner serving a life sentence may be paroled, but not until he has served at least seven years.' (Italics added.)

On behalf of defendant it is suggested that this court should re-examine the decision in People v. Byrd (1954), 42 Cal.2d 200, 207-208, 266 P.2d 505, where the giving of the above quoted instruction was approved. (See also People v. Reese (1956), 47 Cal.2d 112, 301 P.2d 582). It is argued that the instruction is prosecution-slanted, because analysis of the periods of time served for first degree murder (Beattie (1951), California Prisoners, 1945-1949, p. 34, published by the Research Committee of the Board of Corrections) shows that the median time served by persons sentenced to life imprisonment for first degree murder is much more than seven years, particularly when the prisoner has a prior conviction of felony. (Defendant's previous criminal record, disclosed by the judgment and probation officer's report in this case, will be available for consideration of the Adult Authority should defendant be sentenced to life imprisonment. See Pen.Code, § 1203c.)

The italicized portion of the quoted instruction correctly states code rules of law (Pen.Code, § 4800: 'The general authority to grant reprieves, pardons and commutations of sentence is conferred upon the Governor by Article VII of the Constitution of the State of California'; Pen.Code, § 3046: 'No prisoner imprisoned under a life sentence may be paroled until he has served at least seven calendar years'). ² The quoted rules are pertinent as matters of fact to be considered in determining the penalty rather than as propositions of law. It is to be presumed that defendant, if he had sought to do so, would have been accorded opportunity to show other related pertinent facts as to minimum, median, and maximum terms of imprisonment actually served for first degree murder. (People v. Green (1956), supra, at page 217 of 47 Cal.2d, at page 313 of 302 P.2d) In the circumstances it does not appear that defendant can complain as to the giving of the factually accurate statement of the rules of law.

In this case, however, as in People v. Green (1956), supra, there is error which requires reversal and a new trial solely on the issue of punishment. Here, the error involves the same untenable concept that under the law it is the duty of the jury to impose (or to permit the judge to impose) the death penalty unless there be evidence of mitigating circumstances, thus implying a limitation on the jury's statutory function, but the error arose in a different manner than in the Green case. The court in its formal written instructions to the jury did not suggest, as it stated in Green (at page 217 of 47 Cal.2d, at page 313 of 302 P.2d), that 'The discretion which the law invests in you * * * is to be employed only when you are satisfied that the lighter punishment should be imposed. If you find the defendant guilty of first degree murder and do not find extenuating facts or circumstances to lighten the punishment it is your duty to find a verdict of murder in the first degree and fix the penalty at death.' Rather, the formal written instructions concerning the subject of punishment for first degree murder given here, after the instruction quoted at page 465 of 306 P.2d proceed as follows:

'The law of this State provides that every person guilty of murder in the first degree shall suffer death or confinement in the State prison for life, at the discretion of the jury that finds him guilty. If you should find the defendant guilty of murder in the first degree, it will be your duty to determine which of the two penalties shall be inflicted, the death penalty or confinement in the State prison for life. If you should fix the penalty as confinement in the State prison for life, you will so indicate in your verdict, using a form that will be handed to you when you retire to deliberate, but if you should fix the penalty as death, you will not specify the death penalty in the verdict, and you will say nothing about punishment in the verdict. In determining which punishment shall be inflicted, you are entirely free to act according to your own judgment.'

The above quoted formal instructions, commendably, are free from any suggestion that the punishment fixed and favored by law is death (except insofar as an implication might in a combination of circumstances arise from the statement that 'if you should fix the penalty as death, you will not specify the death penalty in the verdict, and you will say nothing about punishment in the verdict' ³) and that only on a finding of mitigating circumstances is the jury free to exercise any discretion as to penalty, but unfortunately the written formal instructions were not the only ones given to the jury. The erroneous concept that death is the penalty preferred by the law in the absence of mitigating circumstances was conveyed to the jury by a combination of circumstances and events which are hereinafter related. It is emphasized at the outset that we are not holding that any of such circumstances or events, standing alone, would necessarily constitute error. But as they were combined here they acquired a gravely erroneous import and were clearly prejudicial on the issue of penalty.

The subject of 'mitigation' was injected into the case by the prosecuting attorney in argument. (As is developed hereinafter, that subject properly could have been argued if evidence pertinent to mitigation had not been in effect excluded from the jury's...