People v. Mason

• Decision Date: 26 July 1960
• Docket Number: Cr. 1543
• Citation: 183 Cal.App.2d 168,6 Cal.Rptr. 649
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v Walter Eugene MASON, Defendant and Appellant.

Page 649

6 Cal.Rptr. 649

183 Cal.App.2d 168

PEOPLE of the State of California, Plaintiff and Respondent, v Walter Eugene MASON, Defendant and Appellant.

Cr. 1543.

District Court of Appeal, Fourth District, California.

July 26, 1960.

Russell A. Holt, Whittier, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Jack K. Weber, Deputy Atty. Gen., for respondent.

SHEPARD, Justice.

This is an appeal from a judgment of conviction of the crime of assault with a deadly weapon with intent to commit murder, and from the order denying defendant's motion for a new trial.

Defendant was tried before a jury and convicted of the crime of assault with a deadly weapon with intent to commit murder. He appeals from the judgment of conviction and from the order denying his motion for a new trial.

The uncontradicted facts appearing in the record before us are that: Defendant married Joleen Nugent in July, 1958. The marriage was stormy, and defendant herein brought suit for divorce which was followed by a cross-complaint by Joleen for a divorce on her own behalf. June 4, 1959, Joleen was in the hospital where she had given birth to a child. Defendant on the same day secured a .25-calibre automatic pistol, loaded it, placed 26 additional rounds of ammunition in his pocket, and drove to the airfield where the business of Joe Nugent (father of Joleen) was located. After a few minutes of friendly conversation with some of Nugent's employees and without any indication or suggestion of anger on his part, he approached the door of Nugent's office. As Nugent came out of the office, without any words of any kind being spoken by the defendant or by Nugent, defendant drew the pistol from his pocket and from a position eight to eleven feet in front of Nugent, fired all seven rounds contained in the gun. Nugent was wounded in the arm, the hip and the chest. The bullet entering the chest passed through the edge of the lung, through the liver and lodged near the vertebra, where it still remained at the time of trial because up to that time the doctor considered removal too dangerous to Nugent's life. Nugent was standing about one step in front of the doorway, and all of the bullets that did not lodge in Nugent's body went through or into the edge of the doorway. Thus all bullets struck or came close to Nugent. Nugent was then dressed in a light tropical shirt and lightweight trousers. Nugent was unarmed, and did not ordinarily carry a gun. However, he was an unpaid deputy sheriff serving in the Sheriff's Aero Squadron and sometimes did carry a gun when in uniform on active duty.

Further evidence relating to defendant's unmerciful beating of Joleen, firing a gun at her, officers being called to protect her; defendant's exhibitions of unrestrained fury at her without reasonable provocation; defendant's claim that, on the day he approached Nugent, Joleen had talked to defendant by telephone and told him to stay away from Nugent because Nugent was armed; defendant's claim that Nugent reached for his pocket and that defendant saw what appeared to be the handle of a .45 calibre revolver, that Nugent then had a 'ferocious' look on his face; and defendant's claim that Nugent interfered with defendant's family life improperly, is all in conflict. Defendant also claimed that some six or seven months prior to the shooting, Nugent had threatened to shoot defendant. Nugent admits the threat but says it was conditional based on information that defendant was beating up Joleen and that what he really said was, 'Jack, if you harm my daughter, I will kill you.' At any rate, it is not disputed that after this occurred defendant worked for Nugent on a friendly basis for several weeks. There is no contention by defendant that he approached Nugent in an angry frame of mind or intending bodily harm because of provocation. In fact, defendant's entire testimony denies such intent and rests his attempted justification for the shooting entirely on his claimed fear for his own life engendered by his alleged sight of the butt of a .45 pistol being drawn from Nugent's pocket.

Motion to Reopen Evidence to Prove Opinion of Officer Who Signed Original Complaint

Defendant first contends he was denied due process of law because the trial court refused to reopen the evidence at the close of the testimony for the purpose of securing the attendance and testimony of officer Earl E. Pursell, Jr., who had signed the original complaint as the result of which defendant was arrested and the preliminary examination had. Defendant does not contend that Pursell had any personal knowledge of the facts of the case. The district attorney offered to stipulate that Pursell had no knowledge of the case beyond that obtained from the official reports of other investigating officers. While defendant did not accept the stipulation, he nevertheless has nowhere offered to prove, nor has he even suggested, that the statement of the district attorney contained in the offered stipulation is not actually true and correct. Neither does defendant anywhere suggest that the original complaint did not afford him full knowledge of the charge he must defend against and the name of the person he is alleged to have shot.

First, it should be noted that a complaint is merely the basis for the warrant of arrest and the commencement of the preliminary magisterial investigation. Objections thereto must be taken while the defendant is held under the warrnat of arrest. After the preliminary hearing and the order holding defendant to answer to the Superior Court, the original complaint becomes functus officio. People v. Tibbitts, 71 Cal.App. 709, 712, 236 P. 217; People v. Hinshaw, 194 Cal. 1, 9 , 227 P. 156; People v. Litchman, 17 Cal.App.2d 252, 253 , 61 P.2d 1229. Defendant does not contend that the compulsory processes of the court for obtaining the attendance of the witness were not afforded to defendant prior to trial. The subpoena was not served and there is no suggestion that the court would not have permitted the witness to be called to the witness stand had he been present at the trial. It appears that at the time of trial he was on vacation and could not be located. Neither is there any contention that defendant could not have subpoenaed the witness had he done so promptly after the cause was set for trial.

The reopening of the cause for further evidence after the close of testimony is within the discretion of the trial court. People v. Berryman, 6 Cal.2d 331, 338 , 57 P.2d 136; People v. Bloemsma, 171 Cal.App.2d 261, 266 , 340 P.2d 350; People v. Pompa, 178 Cal.App.2d 62, 2 Cal.Rptr. 659. Under the circumstances here at bar, we can find no abuse of discretion. It is apparent that had the motion been granted, a continuance would have been automatically necessary. Defendant offered no affidavit nor even any suggestion that Pursell could have testified to any material fact in the case. Thus the court would have had no ground upon which to grant a continuance, for there was no showing that the ends of justice would have been promoted thereby. Penal Code, § 1050. A continuance lies within the discretion of the trial court. People v. Buckowski, 37 Cal.2d 629, 631 [1a-b, 2], 233 P.2d 912.

Defendant has suggested that he wanted to elicit from the officer the officer's opinion regarding the guilt or innocence of defendant. Such question and answer would have been clearly objectionable. A consistent line of authority in all jurisdictions has held that as a general rule a question calling for the direct opinion of the witness on the ultimate fact which the court or jury is called upon to decide, is objectionable as calling for an answer that is not probative and invades the province of the court or jury. Witkin, California Evidence, pp. 221, 223; 20 Am.Jur. 635, 32 C.J.S. Evidence § 446, p. 74; 23 C.J.S. Criminal Law § 858, p. 67; 19 Cal.Jur.2d 17, sec. 290; People v. Storke, 6 Cal.Unrep. 405, 407-408, 60 P. 420, 421 . The trial court cannot be charged with error for refusal to reopen the trial for receipt of inadmissible evidence. People v. Conlon, 138 Cal.App. 576, 578 , 32 P.2d 990.

Defendant contends that his basic constitutional rights have been violated because the court refused to compel officer Pursell to face him at the trial of the cause. Defendant misunderstands the nature of the basic constitutional right and the provisions of Penal Code, § 686. This is a right to be confronted by witnesses who testify against him at the trial. This right does not include that of facing in court a person who admittedly has no personal knowledge of relevant facts in the case and who does not offer to testify. As was said in People v. Taylor, 159 Cal.App.2d 752, 756 , 324 P.2d 715, 718: 'The right of the accused to be confronted with witnesses is the right to have the witnesses testify in his presence and the right of the accused to cross-examine them; it is not required that all witnesses or persons who may have knowledge of the crime be produced in court or called to testify.'

Nor is the prosecution compelled to call any particular witness. Its duty is to fairly present 'the material evidence bearing upon the charge on which the defendant is on trial'. People v. Parry, 105 Cal.App.2d 319, 323 , 232 P.2d 899, 901 Instructions. Sufficiency. Malice.

Defendant next contends that it was prejudicial error for the court to refuse to read to the trial jury defendant's requested jury instruction pertaining to malice. The instruction requested reads as follows:

'You are instructed that malice and deliberation are essential elements of the crime of assault with intent to murder; and that malice is not necessarily inferred from the use of a deadly weapon, or the mere fact of shooting or killing a person; and, while it is true that malice may be implied, it is not an inference or presumption of law, but a question of fact to be found by the jury from the proof of facts and...