People v. Green

• Decision Date: 19 October 1956
• Docket Number: Cr. 5782
• Citation: 302 P.2d 307,47 Cal.2d 209
• Court: California Supreme Court
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Earl Compton GREEN, Jr., Defendant and Appellant.

Page 307

302 P.2d 307

47 Cal.2d 209

The PEOPLE of the State of California, Plaintiff and Respondent, v. Earl Compton GREEN, Jr., Defendant and Appellant.

Cr. 5782.

Supreme Court of California, In Bank.

Oct. 19, 1956.

Rehearing Denied Nov. 14, 1956.

Edwin F. Beach, Santa Paula, and Ben E. Nordman, Oxnard, for appellant.

Edmund G. Brown, Atty. Gen., William E. James, Deputy Atty. Gen., and Roy A. Gustafson, Dist. Atty., Ventura, for respondent.

SCHAUER, Justice.

Defendant was charged with the murder of Joseph LaChance. He pleaded not guilty and not guilty by reason of insanity. He was tried before a jury which found there he was guilty of first degree murder and expressly fixed the penalty at death, and further found that he was sane at the time he committed the offense. Defendant's motion for new trial was denied and he was sentenced to death. This appeal, wherein defendant asserts insufficiency of the evidence and various errors at law which are hereinafter discussed, is taken pursuant to the provisions of subdivision (b) of section 1239 of the Penal Code. We have concluded 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 must be reversed, and the cause remanded for a new trial on the issue of penalty only, because of the instruction 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.'

The following summary of the evidence refutes defendant's contention that it is insufficient to support the finding that defendant was guilty of first degree murder: On August 20, 1954, defendant went to work as a kitchen helper at a country club in Pasadena. There he met LaChance, who was employed as a guard. LaChance learned that defendant was looking for a place to live and at the suggestion of LaChance defendant on August 28, 1954, moved into an apartment-room next to a cabin rented by LaChance. Defendant had been living in an apartment with his wife and her small daughter by a former marriage; he testified that he left there because he was in California in violation of a Florida parole and he feared that his mother-in-law would report him to the Florida parole officer.

On September 1, 1954, LaChance and defendant drove to Ojai in LaChance's car to look for work at an inn where LaChance had previously been employed. They stopped several times for beer. LaChance bore the expense of the trip; defendant had no money. At the inn they learned that the manager in charge of employment would not be in for two hours. They drank more beer, then drove into the country and shot at cans with LaChance's shot gun and played with a baseball and baseball bat. They walked to a creek to obtain drinking water, defendant carrying the bat. LaChance saw a water tank. It is the prosecution's theory (supported by circumstantial evidence and by a voluntary statement of defendant, which statement was made March 29, 1955, and which, insofar as it relates to motive, is contrary to defendant's testimony and other statements), that as LaChance was bending over a faucet on the tank, with his back to defendant, defendant hit him twice over the head with the bat; defendant's purpose was 'to take that money' and 'get my wife and kid and leave California.' According to defendant's testimony and other statements of defendant, he struck LaChance because LaChance proposed that they engage in a homosexual act. Either of the two blows was of sufficient force to have been fatal.

As related by defendant in his statement of March 29, he went through LaChance's pockets and took his money and his wrist watch. According to defendant's testimony, he had no recollection of taking money from LaChance, and LaChance had given defendant the watch three days before his death.

Defendant returned to Pasadena in LaChance's car. The next day, September 2, 1954, he left California in the car with his wife and her daughter. As he traveled across the country he sold tools which were in the car, pawned the watch, and finally sold the car, using various assumed names. He was apprehened in Texas in March, 1955.

The jury could, and presumptively did, believe the prosecution theory of the evidence that the murder was of the first degree because committed in the perpetration of robbery (Pen.Code, § 189). They were fairly instructed as to the law applicable in the event they accepted the theory of defendant as expressed in his testimony, that 'If you find that the defendant * * * had not formed an intention to take the money or other property of Joseph O. LaChance until after he struck Joseph O. LaChance for the last time, and even if you find that (defendant) * * * did in fact kill Joseph O. LaChance, then you are instructed that the killing of Joseph O. LaChance was not murder in the first degree committed in the perpetration of a robbery.' (See People v. Kerr (1951), 37 Cal.2d 11, 13-14, 229 P.2d 777; People v. Carnine (1953), 41 Cal.2d 384, 388, 260 P.2d 16; People v. Hudson (1955), 45 Cal.2d 121, 124, 287 P.2d 497. Manifestly, the jury could and did reject defendant's theory.

According to the confession of defendant which was in evidence, he murdered in the commission of a robbery in which he took the wrist watch of LaChance (which defendant later admittedly pawned). At the trial defendant repudiated this confession and said that a few days before the killing LaChance had loaned him the watch and that defendant had thereafter worn it when he visited his wife and mother-in-law. In argument the district attorney called attention to the fact that defendant called no one to corroborate his story that he had worn the watch for a few days before the killing. Although the argument was not particularly and expressly directed to the failure of defendant's wife to testify, defendant, citing People v. Wilkes (1955), 44 Cal.2d 679, 687, 284 P.2d 481, urges that it constituted improper comment on her failure to take the stand. Insofar as this comment could be understood by the jury as referring to defendant's failure to produce his wife's testimony, it was undoubtedly erroneous. However, in the light of the entire record, we are satisfied that such brief and indirect reference to the matter was not sufficiently important to prejudice defendant in the eyes of the jury and result in a miscarriage of justice (Cal.Const., art. VI, § 4 1/2). In the Wilkes case there was not, as there was here, a mere single, unspecific, passing reference; rather, there was particularized comment which 'erroneously and deliberately struck at the heart of defendants' only defense' and which was aggravated by erroneous comment of the trial court (at page 688 of 44 Cal.2d, at page 486 of 284 P.2d).

Over objection the prosecuting attorney, in connection with the opening statement, was allowed to show the jury a motion picture depicting locations where the events in question took place and articles which were subsequently introduced in evidence as exhibits. Later the film was properly identified and admitted in evidence. Also in connection with the opening statement the prosecuting attorney showed photographs of the wounds of deceased and of defendant in prison garb.

Even where a map or sketch is not independently admissible in evidence it may, within the discretion of the trial court, if it fairly serves a proper purpose, be used as an aid to the opening statement. (State v. Sibert (1933), 133 W.Va. 717, 169 S.E. 410, 412.) The purpose of the opening statement 'is to prepare the minds of the jury to follow the evidence and to more readily discern its materiality, force and effect' (People v. Arnold (1926), 199 Cal. 471, 486, 250 P. 168), and the use of matters which are admissible in evidence, and which are subsequently in fact received in evidence, may aid this purpose. In the circumstances, we conclude that it was within the discretion of the trial court to permit the use in connection with the opening statement of the pictures which were subsequently received in evidence.

Defendant claims that the trial court erred in excusing Juror No. 4. After 12 persons had been sworn to serve as jurors and the selection of alternate jurors was proceeding, this juror asked if she could be excused. 'If I had reconsidered one of my answers.' The following shows the essential portions of the colloquy between the court and the juror which ensued:

'The Court: Did you make, in answer to some question, did you make a false reply?

'Juror Number Four: I believe I have now, yes. I believe that you asked me if there was any reason that I couldn't be a juror and at that time I felt there was none but now, being up here, it has made a difference to me. I don't feel that I could qualify. * * *

'The Court: * * * (Y)our statement now in substance is this, * * * that you now would be unable to serve as a juror and act fairly and impartially to all sides of this case, is that correct?

'Juror Number Four: That is right, sir. * * * (A)s long as there is a doubt in my mind, I don't think that I would be fair to the prosecution.'

The court did not then act upon the request of Juror No. 4. Two alternate jurors were selected and sworn. Juror No. 4 was again questioned and restated her position. Thereupon the trial court ruled, over defendant's objection, that 'The Court finds that there is good and sufficient cause and reason, pursuant to the provisions of Section 1089 of the Penal Code and for other good and sufficient reasons, to discharge the Juror No. 4.' Juror No. 4 was replaced with one of the two alternate jurors, selected by placing the names of the alternate jurors in a box and drawing one.

Section 1089 of the...