People v. Gaither

• Decision Date: 14 September 1959
• Docket Number: Cr. 6575
• Citation: 173 Cal.App.2d 662,343 P.2d 799
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. James Campbell GAITHER, Defendant and Appellant.

Page 799

343 P.2d 799

173 Cal.App.2d 662

PEOPLE of the State of California, Plaintiff and Respondent, v. James Campbell GAITHER, Defendant and Appellant.

Cr. 6575.

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

Sept. 14, 1959.

Rehearing Denied Oct. 1, 1959.

Hearing Denied Nov. 10, 1959.

Barbara Warner, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Philip C. Griffin, Deputy Atty. Gen., for respondent.

SHINN, Presiding Justice.

James Campbell Gaither appeals from a judgment of conviction of seven violations of Section 216 of the Penal Code ¹ in that he administered poison (arsenic) to Mary Norris Gaither, Rosemary Norris, Mary Urias, Alvina Urias, Timothy Urias, Alex Urias and Adolph Urias with intent to kill said persons, by which death was not caused. He also appeals from an order denying his motion for a new trial.

Mary Norris (Gaither) married defendant in 1957 and obtained a divorce from him in May 1958. Her mother and father are Mary Urias and Adolph Urias. She and defendant have a daughter Rosemary Norris, aged 2; Mary and Adolph Urias have three minor children, Alvina, Timothy and Alex. On April 4, 1958, the three children and Rosemary Norris were living in the Urias home at 4482 Tuttle Street in Los Angeles. Mary Norris had her mail sent to this address in care of her mother, who had authority to open it. On April 1st or 2nd, 1958, a package was mailed from Taft addressed to 'Mary D. Norris 4482 Tuttle Street, Los Angeles 23, California.' The return address read: 'Abbie Copus, Rural Route, Mariposa, California.' The package contained four Easter bunnies and a quantity of peanut brittle which had been melted and reshaped into a single mass. It contained enough arsenic to kill 75 persons. The foregoing facts were established by uncontroverted evidence. Although defendant denied upon the stand that he sent the package there was convincing evidence that he did send it and it is not contended on the appeal that there was insufficient evidence to prove that fact.

Mrs. Urias ate some of the candy and gave some to Alvina, Timothy and Rosemary, who ate it. All became violently ill but recovered. Mary Norris, Adolph and Alex ate none.

With this brief statement of the evidence we pass to the points on the appeal.

The first contention is stated thus: 'No State Offense To Send Poison Candy Through Mails Congress Preempted Legislative Authority Over Mailing Poison By Enactment Of 18 USCA 1716.' This statute makes it a penal offense to deposit for mailing or delivery poison or poisonous articles or compositions, with intent to kill, etc. The contention is untenable. The federal statute relates only to the mailing or delivery of non-mailable articles and substances. It does not purport to make a federal offense of all attempts to kill by means of poison. Mailing is not the subject of the state statute. The information did not charge the commission by defendant of acts which would have constituted violation of the federal statute.

The second point is: 'Insufficiency Of The Evidence Mailing Poison Candy To One Person Is Not Administering To Other Persons.' The contention is summarized in the statement: 'There is no evidence that defendant did anything beyond mailing the package to his wife, Mary Norris. Such mailing did not constitute administering the poison, because the addressee did not eat any.' The point stressed is that the poisoned candy was 'administered' by Mary Urias on her own responsibility and was not the act of the defendant. The contention is unrealistic. It assumes that if defendant administered poison to anyone it was to his divorced wife and that it was no part of his plan or the anticipated consequences of his act that anyone else would eat the candy. No mention is made of the evidence which shed light upon defendant's purpose in sending the candy. It is not asserted that he expected that Mary Norris would consume one and a half pounds of candy or that she would keep the four Easter bunnies. There was evidence that within two weeks preceding the sending of the package age defendant telephoned Mary Urias and threatened to run over her children as they went to school; he made another threat to her over the telephone that he intended to get a gun and 'shoot the whole Urias family.' He called again, on two occasions, spoke to his father-in-law, Adolph Urias, and threatened to kill him. He talked to Alex, aged 9, on the phone and threatened to kill him and his brother and sister. Shortly after the candy was received defendant called and spoke with Alvina, asking how Rosemary was and the next day called to ask how everybody was. He also drove by the house but made no attempt to communicate with Mr. Urias, who was outside. In view of this evidence, to which the jury presumably gave full credit, there was no reason to doubt that the poisoned candy and the Easter bunnies were sent to Mary Norris with the intention they would be distributed throughout the household. Thus the poison was administered to those who partook of it as effectively as if it had been handed to them personally. The acts of Mrs. Urias in distributing the candy as planned and expected by defendant were his acts insofar as they accomplished his purpose.

The next point is that the court erred in giving the People's instruction that 'administer' means 'to dispense, to supply, to give out, to distribute, to furnish' and that the word has not a legal or technical import, but is a word in general use with a common and accepted meaning, the primary definition being 'to give.' Defendant maintains that 'administer' means something more than 'give'; to give someone a poison is not to administer it unless it is taken into the system, even though the intention is that it will be swallowed; the poison was not administered to those who ate none of the candy, namely, Mary Norris and Adolph and Alex Urias. We are constrained to agree. If all the candy had been thrown away defendant would not have committed a violation of section 216 (see State v. Stapp, 246 Mo. 338, 151 S.W. 971; Miller v. State, Okl.Cr., 281 P.2d 441; Leary v. State, 14 Gal.App. 797, 82 S.E. 471), although he would have been guilty of an attempt to violate it.

'Administer' in the sense intended by section i16 is a word that is commonly employed in connection with the use of drugs. For illustration, it means something more than 'prescribe' or 'furnish' in connection with the use of narcotics, which a physician may 'prescribe, furnish, or administer' in some cases. Health & Safety Code § 11330. Section 216 has application to cases in which poison is introduced into the system with intent to kill and which causes injury short of death. Defendant requested and the court refused an instruction that 'administer' means 'to furnish, to give, to direct and cause it to be taken.' The instruction should have been given.

The court could have instructed that the poisoned candy was administered to those who partook of it if defendant mailed it with intent that it would be distributed among and eaten by the members of the Urias household. With respect to the three persons who ate none of the candy the definition of 'administer' was erroneous in making it applicable to them. As to the others there was no harm, inasmuch as there was convincing and uncontradicted evidence that they ate some of the candy, became violently ill and required medical attention.

The next point to be considered is that since there was but one act of mailing there was but one offense committed. The proposition is unacceptable on its face. Defendant, having issued threats of wholesale murder, mailed poisoned candy expecting it to be distributed among and eaten by seven people; the circumstances were such as to make it almost certain that it would be distributed and eaten by several, perhaps all; four ate of the candy and three did not. Why should the law intend or a court adopt a policy of leniency and punish defendant as for a single crime when he would have been three times a murderer if he had run over and killed three of his victims as he had threatened to do.

In People v. Alibez, 49 Cal. 452, it was held that an indictment charging the death of three persons from poison administered to them upon a single occasion accused the defendant of three offenses of murder. It has always been the law in this jurisdiction that in crimes of violence a single act constitutes a separate offense against each person injured by the act. In People v. De Casaus, 150 Cal.App.2d 274, 309 P.2d 835, the court affirmed six convictions of involuntary manslaughter where six persons had been killed in a single act of the unlawful operation of an automobile. We refer to the court's opinion for a list of supporting authorities. Defendant was properly convicted of four offenses.

The next contention is that the court should have given an instruction that would have permitted defendant's conviction of a claimed included offense of violation of Section 347, Penal Code. ²

Simply stated the rule of included offenses is that where one offense cannot be committed without committing another, the latter is included in the former.

In the present case, although the poison was mixed with candy, the information did not allege that it was mixed with food and therefore did not allege facts which would constitute a violation of section 347. See People v. Marshall, 48 Cal.2d 394, 405, 309 P.2d 456. It is not an essential element of violation of section 216 that the poison be mixed with food. An instruction that the defendant could be convicted of violation of section 347 would have been improper.

The next contention of defendant is that he was not adequately represented by counsel at the trial and that it was error for the court to deny his motion for a change of attorneys. Defendant was represented prior to trial by a deputy public defender who was relieved, as shown by the...