People v. Jennings, Cr. 2643
| Decision Date | 08 June 1956 |
| Docket Number | Cr. 2643 |
| Citation | 298 P.2d 56,142 Cal.App.2d 160 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE of the State of California, Plaintiff and Respondent, v. Frank JENNINGS, Defendant and Appellant. |
J. Everett Barr, Yreka Gerald L. Shannon, Dunsmuir, for appellant.
Edmund G. Brown, Atty. Gen., by Doris H. Maier and J. M. Sanderson, Deputy Attys. Gen., for respondent.
Appellant herein was charged by information with the crime of assault with a deadly weapon with intent to commit murder. He was tried to a jury and found guilty of the included offense of assault with a deadly weapon. The following is a sufficient statement of facts to enable us to consider the assignments of error. We have stated them most favorably in support of the judgment, as we must on appeal.
About 10 P.M. on March 15, 1955 in the small town of Dorris, California, one Manley M. Gravier, commonly known as 'Jack', was awakened by a knock on the door of the trailer house in which he resided. He arose, picked up a flashlight and opened the door. As he did so, a voice said, 'Jack Gravier'. Gravier shone the light toward the sound of the voice and answered, 'Yes'. At the same time he saw appellant pointing a shotgun at him. As the light struck appellant's face, he lowered his face to the stock of the shotgun. Gravier ducked to his left. Appellant fired, the charge striking Gravier in the right shoulder, tearing away the deltoid muscle. The force of the blast spun Gravier to his right and back and he reached for his gun which lay close at hand on a shelf. He ran outside in time to see a pickup with a red top being driven away. He saw a shotgun lying in the snow near his trailer. He went back into the trailer house and called the chief of police, on Byard Kelly. Kelly's wife answered the phone. Gravier then went next door to the home of Ted Wright, the assistant chief of police of Dorris. By that time Mrs. Wright, who with several others had heard the sound of the shot, was investigating to determine the source of the noise. Gravier told Mrs. Wright he had been shot, and she took him to the hospital in her car. Mrs. Wright and Mrs. Kelly returned to the scene of the shooting and found a sawed-off shotgun lying about seven feet from the door of the trailer. A little over an hour later, appellant was stopped and arrested at a road block approximately 62 miles from the scene of the shooting. He was then driving a red and black Dodge pickup and was wearing clothing similar to that which Gravier had observed being worn by his assailant. Several other witnesses testified they had seen a red and black pickup in the general area where the shooting took place, either shortly before or after thw shooting occurred. Three days after the shooting a short piece of shotgun barrel was found 22 yards away from a garage which was used by appellant and which was three houses away from appellant's house in Dunsmuir. The shotgun found outside Gravier's house trailer and the short piece of barrel were both submitted to the State Bureau of Criminal Identification for examination, and an expert from the bureau testified that the shotgun and the piece of barrel had been at one time joined together to form one shotgun barrel. The expert testified that in his opinion the short piece of barrel had been detached from the gun by being sawed off with a hack saw. On March 16th, a search of appellant's house revealed a hack saw with fresh metal particles in its teeth. Gravier positively identified appellant, whom he knew, as being the man who shot him. Defendant did not, during the trial, take the stand in his own behalf.
Appellant contends that the trial court erred in prohibiting him from showing by cross-examination of Gravier and in other ways that Gravier bore ill will toward appellant's minor daughters. He had been permitted to show that Gravier bore ill will toward the appellant to the extent that on one occasion he had said that if appellant continued to interfere with the association between Gravier and appellant's exwife Gravier would kill him. Such evidence, of course, went to the credibility of Gravier, who was the only witness who had identified appellant as having fired the shot at Gravier. But the trial court refused to permit appellant, on cross-examination of Gravier and of appellant's daughter, to show that Gravier also possessed ill will toward the children. This ruling was within the discretion of the trial court in limiting cross-examination. It is difficult to see how ill will toward the minor children would have stood as impeachment against Gravier. There might be cases, of course, where such testimony would have an impeaching value, but in this case it appears from the record that if it had any value whatever, it could only have been very slight and error cannot be predicated upon the court's refusal to go into matters which would have involved inquiries collateral to the case being tried. While no California case directly on this point has been found, a direct ruling contrary to appellant's contentions was made in Wimberley v. State, 95 Tex.Cr.R. 102, 252 S.W. 787, 790, where the court said:
Karleen Jennings, a daughter of appellant, aged about fifteen at the time of trial, was called on behalf of appellant. Apparently the purpose of calling her was to establish that the witness Gravier bore ill will toward defendant. In the course of her testimony, she was asked to fix the time when an incident of ill will had occurred. She replied as follows: 'It was before he was jerking me around that day.' The court observed that the answer was not responsive, but at that time no motion to strike was made. The witness proceeded to fix the date and testified as before stated that on that occasion Gravier had threatened to kill appellant. After the close of evidence and after counsel for the People had made the opening argument, counsel for appellant addressed the jury as follows: At that point counsel for the People objected there was no such testimony and an argument ensued concerning it. The reporter's notes were referred to, and counsel for appellant asked that the testimony be read directly to the jury. Again the court observed that the statement had not been responsive to a question. Counsel replied that it had not been stricken. Thereupon, counsel for the People moved to strike and the motion was granted. Counsel for appellant cited the act of the court in striking the testimony after the close of evidence as prejudicial misconduct, and he urges the same contention here. It is, of course, unusual to strike testimony after the close of evidence and during argument to the jury. But here the record shows that the type of evidence which was stricken had, before it crept into the record by a non-responsive answer to a question, been explicitly ruled by the court to be inadmissible; that is, the court had ruled out testimony as to the ill will of Gravier toward appellant's children. It is fair to assume from the record that the testimony which came in was one of the incidents of ill will which counsel for appellant had unsuccessfully sought to prove before. We have already said that the exclusion of such testimony was not error and we think that when the court struck it out in line with its previous rulings, it acted within its discretion.
It was asserted by counsel for appellant during trial that prior to the commission of the crime appellant had complained to the sheriff of the county about antagonistic conduct of Gravier toward him. Appellant sought to prove this as part of his showing that Gravier was biased toward him. He first attempted to show it on cross-examination of Gravier. An objection was made that the question assumed matters that had not been proved. The court suggested that he ought first to prove that the incident occurred and that the sheriff's testimony would be admissible for that purpose. (It may be said also that appellant himself could have so testified.) Appellant complains of the court's refusal to grant a continuance to permit him to obtain in testimony of the sheriff. The sheriff had been on the stand as a witness, and on cross-examination was asked if the time when he arrested appellant was the first time he had ever seen him. He had said that it was. He was then asked if appellant had not once visited him regarding a complaint about Gravier. An objection was sustained to the question. The matter was dropped at that point and both sides excused the sheriff from further attendance on the trial. At the close of evidence, counsel for appellant asked for a continuance until the sheriff would return. The court replied the case could not be delayed another day for that purpose inasmuch as counsel had excused the sheriff from further attendance. Counsel asserted that the matter of the complaint to the sheriff had been ruled out when the sheriff had been on the stand. The court said that no offer of proof as to what the complaint was had been made at that time. On the following day before the case went to the jury, counsel for appellant made a further effort for a...
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