People v. Keelin, Cr. 2622

• Decision Date: 09 November 1955
• Docket Number: Cr. 2622
• Court: California Court of Appeals Court of Appeals
• Parties: , 56 A.L.R.2d 355 The PEOPLE of the State of California, Plaintiff and Respondent, v. Frank KEELIN, Defendant and Appellant.

Page 520

289 P.2d 520

136 Cal.App.2d 860, 56 A.L.R.2d 355

The PEOPLE of the State of California, Plaintiff and Respondent, v. Frank KEELIN, Defendant and Appellant.

Cr. 2622.

District Court of Appeal, Third District, California.

Nov. 9, 1955.

James R. Hardin, Sonora, Edmund L. Gorgas, Modesto, for appellant.

Edmund G. Brown, Atty. Gen., by G. A. Strader, Deputy Atty. Gen., for respondent.

VAN DYKE, Presiding Justice.

Appellant was indicted by the grand jury of Tuolumne County under a charge of murdering one Raymond T. Etherton. He was tried and the jury found him guilty of murder of the second degree. He appeals from the judgment which followed and from the order denying him a new trial.

We may say generally that it was the theory of appellant that on the occasion of the killing Etherton had burglariously entered appellant's domicile and was in the act of stealing money; that whatever wounds appellant inflicted upon Etherton were inflicted at that time and place and that, under the circumstances, the homicide was justifiable. It was the theory of the prosecution that, although some shots had been fired in appellant's domicile, nevertheless no serious wounds had been then inflicted and that Etherton had left the domicile and been gone therefrom for some time when appellant followed him and fired the fatal shots without excuse or justification. There is in the record substantial evidence in accordance with the theory of the prosecution, which supports the judgment. There is also substantial evidence in the record which supports the theory and the defense of appellant. The errors complained of have to do with the admission of evidence and with instructions given, and these errors are claimed to have been magnified in legal effect by the denial to appellant of his constitutional rights. We agree with appellant that the judgment and order appealed from must be reversed.

In order to present the assignments of error we think it necessary to state the pertinent evidence substantially in the order in which it was introduced in the trial court. By stipulation a map was received which shows the following physical facts concerning the scene of the crime: As one leaves the City of Sonora on highway 108 and travels north he passes the intersection of a road leading to the east. At a distance of 980 feet from the highway on that intersecting road is a place called 'Indian Camp'. At that point defendant, hereinafter called 'appellant', lived in a trailer house owned by him. Etherton lived in a lean-to contiguous to appellant's trailer. Along the westerly side of the highway there is an abrupt upslope or bank with a height varying from four to ten feet.

A Doctor Boice was called. He had performed an autopsy upon the body of Etherton. He testified that he observed on the body the following bullet wounds: One bullet had entered at the left side below the rib cage, traversed upward and to the spine and had shattered into small bits when it contacted the spinal column. It had passed through several loops of intestines on the way. Another bullet had entered below the rib cage, had gone through the liver, severing the main branch of the hepatic artery and had lodged back of the liver. Two other bullets had inflicted only flesh wounds. There was also a large stellate lesion on the forehead of the decedent, presenting a jagged, torn area. Its appearance indicated that it had been made by some type of blunt instrument or, as the witness stated, 'it looked like a rock * * * like something a rock had produced.' The witness said that, considering that the body of decedent was found on the highway 980 feet from the trailer, he could have walked or run from the trailer house to the highway, although he would have been in great pain; that such a journey would be improbable but not impossible; that he would have been bleeding profusely; that the witness had found two quarts of free blood in the abdominal cavity; that when an artery of that size is bleeding it is improbable that a man would go very far; that if he ran or walked the exertion would increase the flow of blood from the wound. The witness said further that either of the two abdominal wounds could have caused death; that from the wound which perforated the bowel death would be expected within 24 hours, but that, considering the wound that severed the hepatic artery, it would be inconsistent with probability 'that he would have lived at all.' Said the doctor: 'With either [wound] it was unlikely for him to live over 10 to 15 minutes, half an hour at the longest, even if he were lying down.' The foregoing testimony was given on direct. On cross-examination the witness testified as follows: With respect to the wound which severed the hepatic artery he would doubt that Etherton could have walked more than a few steps, and that from the loss of blood he would not have expected him to live very long and would say he would go into such profuse shock that he wouldn't be able to walk; that he would pass right out; that he doubted if with that wound he could walk the length of the court room in which the trial was held; that he would go into shock; that notwithstanding all that, it might be possible to walk a greater distance as sometimes under such circumstances humans will do very remarkable things; that the witness doubted it would be possible for Etherton to walk 980 feet with the amount of blood he had lost since blood pours out rapidly from a blood vessel like the hepatic artery and the victim would go into shock in 2 or 3 minutes at the very minimum--profound shock. The witness' attention was called to his testimony at the coroner's inquest preceding the trial in which he stated that in his opinion it would be possible for Etherton to have walked appreciable distances, although awfully hard. Said the witness: 'It would be awfully hard for him to walk with this one [the wound that severed the artery], but I suppose he did.' The witness said that with the wound that severed the bowels, it would have been difficult for him to have walked any appreciable distance, but he could have done it ; that it wasn't absolutely impossible. Said the witness after reading his previous testimony: I couldn't say it is absolutely impossible. Like I said there, I think it's highly unlikely a man could walk that far.' Concerning the stellate wound upon Etherton's forehead, the witness said he thought it could not have been caused by falling and hitting his head on the ground, although if he pitched down a bank it could have happened; that in his opinion a blunt instrument had been used to inflict that wound.

The Sonora Chief of Police testified. He said they had arrested the appellant at his trailer house and that a search of the trailer house disclosed a wallet containing something over $60, and a second wallet with $1 in it; that, although they had found a bullet hole in the wall of the trailer and several spent carridge cases and a rifle, they found no bloodstains; that going down the road toward the highway, which road was wet and muddy, they had found no bloodstains until near, and upon, the highway.

Two men, a Mr. Johnson and a Mr. Bezemer, at 5 o'clock on the morning of the homicide had left Sonora and just before reaching the intersection of the state highway with the side road had observed in the darkness what appeared to be the figure of a human being lying on the side of the road. Another figure appeared to be bending over it. They passed the spot and then determined to return and investigate. They then saw the figure of Etherton on the highway and observed, upon the bank, another person, who quickly disappeared. Johnson was the first of the two to restify. He said that he observed the two figures on the highway, one bending over the other and when he had turned his car about and come back to the scene the one that had been standing was on the bank. He could not say whether that person was large or small or whether it was a man or a woman, although it looked to be a man. The figure wore a long brown coat, but he couldn't tell whether it was a raincoat or an overcoat, it was so dark. He had not noticed whether the figure wore a hat or not and he had not had a look at the features. He said he could not recall anything except that it was someone dressed in a long coat who was on the bank. He said he had asked Etherton as he lay on the road if he had been run over and Etherton replied 'No' and said he had been shot. The witness then told Bezemer to stay there while he went to get the police. He drove to Sonora and after the police arrived he left the scene. He had observed a rock about a foot from Etherton's body and saw no other rocks in the immediate area. On cross-examination he said as to the person he had seen standing over Etherton that he could not tell whether he was tall or short, heavy or slight. Bezemer next took the stand and testified much as had Johnson. He had seen the figure which had been bending over Etherton, going up the bank. He said the figure wore a long overcoat; that he couldn't swear it was a man; he couldn't recollect the color of the overcoat, nor identify the coat as the coat of appellant which was shown to him. He spoke to Etherton and asked him what had happened. At this point counsel for appellant objected that no proper foundation had been laid to introduce any statement of Etherton. Said the court: 'Are you going to introduce a dying declaration?' Prosecuting attorney: 'Not at this time, Your Honor. [Counsel for Appellant]: The answer would be hearsay, except only a dying declaration. The Court: I think it would be hearsay unless you are going to introduce a dying declaration. [The Prosecuting Attorney]: We'll just wait then.' After a few questions had been asked and answered, the court, interrupting the examination, said: 'It might be part of the res gestae. I think it probably would be. I think I'm going to reverse myself if he wishes to...