People v. Lessard

Decision Date27 September 1962
Docket NumberCr. 7101
Citation375 P.2d 46,58 Cal.2d 447,25 Cal.Rptr. 78
CourtCalifornia Supreme Court
Parties, 375 P.2d 46 The PEOPLE, Plaintiff and Respondent, v. Albert LESSARD, Defendant and Appellant.

Thomas M. Griffin, under appointment by the Supreme Court, and Richard J. Tuckerman, Oakland, for defendant and appellant.

Stanley Mosk, Atty. Gen., John S. McInerny and Edward P. O'Brien, Deputy Attys. Gen., for plaintiff and respondent.

WHITE, Justice.

A jury found defendant guilty of the first degree murder of Joseph Mazeski and fixed the penalty at death. Defendant admitted two prior felony convictions. The trial court denied defendant's motion for a new trial and entered judgment on the verdict. The appeal from the judgment is automatic. (Pen.Code, § 1239, subd. (b).) Although the order denying the motion for a new trial is not appealable, we are nevertheless authorized to review the denial in this proceeding. (Pen.Code, § 1237, as amended Stats.1961, ch. 850, § 5, p. 2229.)

With regard to the factual background surrounding this prosecution, the record reveals that on June 15, 1959 the deceased registered at the Travel Lodge Motel in San Francisco. He had in his possession approximately $800, the proceeds of a check for his summer pay as a school teacher. On the afternoon of June 16 he met defendant in a tavern directly across the street from deceased's motel. The two had drinks and some conversation. Thereafter defendant left the tavern shortly before 6:00 p.m. and returned in approximately 15 minutes. The latter accompanied by the deceased then left the tavern at approximately 6:30 p.m. The deceased's body was found in his motel room the following morning. Death was caused by knife wounds in his chest and back areas. Other wounds on the deceased's arms and hands were described as of a type inflicted when one attempts to ward off a knife attack.

Defendant's fingerprints were found throughout the deceased's motel room, and he admits to having entered the room after leaving the tavern. In addition, defendant's fingerprints were found on a knife in a display case at a restaurant supply store located in the same neighborhood as the motel and tavern. The owner of the store testified that on the afternoon in question at approximately 6:00 p.m., a man who might have been the defendant entered his establishment and purchased a boning knife. Before making his selection, however, the customer examined another knife which was returned to the display case. When the owner heard of the homicide he informed the police of the purchase, and it was the knife remaining in the display case on which defendant's fingerprints were found. The murder weapon was never identified or recovered.

The latter admitted meeting the deceased at the tavern on the afternoon of June 16. He testified that after leaving the tavern they drove to another bar in the victim's automobile and then returned to the motel room; that deceased wanted to freshen up and while he was engaged in taking a shower defendant noticed deceased's wallet, removed it from the latter's clothing and quietly left. It is thus conceded that defendant committed a theft of personal possessions. By way of affirmative defense, defendant offered evidence that he boarded a Greyhound bus to Seattle, claiming that such bus left San Francisco at 9:30 p.m. Evidence was submitted which, if believed, could have established that hour as defendant's departure time. His purpose in establishing such time was to demonstrate that he could not have been in San Francisco at the time of decedent's death as testified to by witnesses for the prosecution. In this connection defendant asserts that the coroner's records indicate that death occurred not before 11:00 p.m. on June 16. This conclusion is drawn from a statement contained in the coroner's report that 'deceased had apparently been dead from 10 to 12 hours when found.' However, the coroner testified that the time of death could have been within a period preceding the discovery of the body by as much as 14 hours, which would have made it possible for defendant to have committed the crime and to have taken the bus which he claims to have boarded. The coroner admitted on the stand that the 10 to 12 hour estimate was a 'best' estimate, but testified that unknown factors could cause considerable error in the estimate. Other than the admitted theft the defendant advanced no theory, either expressly or inferentially through evidence produced by him or the prosecution, which might have established a criminal act. His entire defense was directed to establishing that he was in no way connected with the homicide.

As his first ground for reversal defendant contends that the clerk of the trial court failed to poll the entire jury when requested to do so by his counsel, following return of the guilty verdict. (Pen.Code, § 1163.) In response to the request of defendant the court ordered the jury to be severally polled. It appears from the transcript as originally prepared that 11 jurors were polled, all answering in the affirmative to the question '* * *, is that your verdict?' No request was made by counsel for defendant for further polling and the oversight, if any, was not otherwise called to the court's attention. Moreover, a duly verified correction to the reporter's transcript shows that the twelfth juror was also independently polled and that he too stated that the announced verdict was also his individual verdict. The verity of the corrected transcript is not put in issue.

The polling of the jury is a right available only upon the request of either party. (Pen.Code, § 1163.) A failure to make a proper request imposes no burden upon the court to poll the jury, nor in the absence of such request does a failure to so poll constitute a denial of a constitutional right. Where a jury is incompletely polled and no request is made for correcting the error, such further polling may be deemed waived by defendant, who cannot sit idly by and then claim error on appeal when the inadvertence could have readily been corrected upon his merely directing the attention of the court thereto. In any event, the record fails to reveal an incomplete polling in the present instance and no grounds for reversal are apparent.

Defendant next assigns as error the refusal of the trial court to instruct the jury on the elements of murder of the second degree. In this connection the court instructed: 'Although there are two degrees of murder, the evidence in this case is such that either the defendant is innocent of the charge of murder or he is guilty of murder in the first degree.'

While an unbroken line of decisions holds that it is the duty of the court to instruct on every theory of the case finding support in the evidence (People v. Carnine, 41 Cal.2d 384, 390, 260 P.2d 16; People v. Carmen, 36 Cal.2d 768, 773-774, 228 P.2d 281), in the case now engaging our attention, however, the record is barren of any evidence that would support a verdict of murder of the second degree. The only theory advanced in the case at bar was that of murder in the first degree predicated either upon premeditation evidenced by defendant's purchase of the boning knife after meeting deceased or killing him in the course of a robbery (Pen.Code, § 189.) As stated, the only theory advanced by defendant is that while a homicide was committed he was not the perpetrator thereof; that someone else purchased the knife and that someone other than he stabbed the decedent to death after defendant concededly removed the victim's personal possessions and fled. It therefore follows that if the jury was convinced beyond a reasonable doubt that defendant committed the homicide there was no alternative under existing law other than to find that the murder was of the first degree for the evidentiary features of the instant case are of such a nature as to warrant only such a finding as to the degree of the offense. (See People v. Turville, 51 Cal.2d 620, 633, 335 P.2d 678.) Defendant's reliance on the cases of People v. Carnine, supra, 41 Cal.2d 384, 260 P.2d 16; People v. Carmen, supra, 36 Cal.2d 768, 228 P.2d 281; People v. Bender, 27 Cal.2d 164, 163 P.2d 8; People v. Burns, 88 Cal.App.2d 867, 200 P.2d 134, (Cf. People v. Ah Lee, 60 Cal. 85), is unavailing for the reason that in the cited cases, unlike the one at bar, there was some evidence which tended to show such a state of facts as might bring the crime within the grade of second degree murder or of a lesser offense included within the crime charged. '(W) here the facts impel a conviction of murder of the first degree * * * and do not admit upon any view of the evidence of a finding other than of murder of the first degree, there is no occasion whatsoever to give instructions as to the differences between the degrees of murder.' (People v. Bernard, 28 Cal.2d 207, 214, 169 P.2d 636, 640; see also People v. Peterson, 29 Cal.2d 69, 173 P.2d 11; People v. Honeycutt, 29 Cal.2d 52, 172 P.2d 698; People v. Dorman, 28 Cal.2d 846, 172 P.2d 686.) And in People v. Watts, 198 Cal. 776, at page 793, 247 P. 884, at page 890, we said: 'In a criminal case instructions are always to be given with reference to the facts proved before the jury. Accordingly, it is the established rule that on the trial of a person charged with murder it is proper to refuse to given an instruction as to a lesser degree than that of murder in the first degree, or as to a lesser offense included within the crime charged, if the evidence is of such a nature as to warrant only a verdict of first degree murder, in the event that the accused is guilty at all.' (See also People v. Dye, 130 Cal.App. 522, 20 P.2d 358.)

It is next contended by defendant that the jurors were guilty of misconduct in receiving evidence out of court and in discussing the case among themselves prior to its submission to them. This contention formed a basis for the motion...

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