People v. Miller

• Decision Date: 04 June 1962
• Docket Number: Cr. 7077
• Citation: 22 Cal.Rptr. 465,372 P.2d 297,57 Cal.2d 821
• Parties: , 372 P.2d 297 The PEOPLE, Plaintiff and Respondent, v. Richard MILLER, Defendant and Appellant.
• Court: California Supreme Court

Page 465

22 Cal.Rptr. 465

57 Cal.2d 821, 372 P.2d 297

The PEOPLE, Plaintiff and Respondent, v. Richard MILLER, Defendant and Appellant.

Cr. 7077.

Supreme Court of California, In Bank.

June 4, 1962.

Grant B. Cooper, Los Angeles, under appointment by Supreme Court, for defendant and appellant.

Stanley Most, Atty. Gen., and William E. James, Asst. Atty. Gen., for plaintiff and respondent.

DOOLING, Justice.

Defendant was convicted of first degree murder and the penalty was fixed at life imprisonment. A motion for a new trial was denied. He has appealed from the judgment and the order denying his motion for a new trial.

On the night of December 2, 1960, defendant and Charley Harper, a friend were visiting at a neighbor's home. After spending some two or three hours there, during which time there was some drinking and gambling, defendant and Harper left. They walked down the street toward a liquor store. Harper testified that he noticed a girl at the corner of a building across the street from the store. Harper went into the store to buy some cigarettes and left defendant crossing the street. As Harper came out of the store, he saw defendant grab the girl and 'push her behind the wall.' Harper stood in front of the store a few minutes, then walked down the street, 'passed by' and 'looked behind the wall' but 'did't see (any) more'; so he continued a little further down the street, came back and looked and saw no one, and returned to the liquor store and stood there. In a few minutes defendant came out from behind the wall; no one was with him. As defendant started walking down the street, Harper caught up with him and asked defendant, 'How you come out, Buddy?' Defendant replied 'You haven't seen me.' Harper then went off to visit another friend and defendant continued walking down the street. The next day upon learning that the girl had been killed, Harper went to the police.

The police found the deceased's body behind a walk-in icebox located on a lot next to the building where Harper had seen defendant with the girl. Her clothese were disarrayed and torn; her skirt was up above her mid-section; her blouse was ripped open and her brassiere was torn off; she had no panties on or other garments; her shoes were off and lying on the ground. She had blood about her hip and her head looked as though it had been beaten. There were blood splatters on the cement walkway close to the body and marks on the ground as though the body had been dragged around to the rear of the icebox. A janitor at a nearby dance hall found the girl's purse in the street early the next morning; he was briefly questioned by the police but not detained.

A lady whose house was at the rear of the lot where the body was found testified that about 11 or 11:15 p. m. on the night in question she heard someone moving outside her bedroom window; that there then followed a faint call of a woman for help, a man's command to 'hush' and again a woman's call for help. As she thereafter listened, she heard a 'fast, unusual moving around,' like 'a scuffling,' a 'drop of a balloon and (it) busted,' as though 'something was popping * * * it was moving around so fast.'

The cause of death was a contre-coup injury to the brain from a blow on the left side of the head, with multiple fractures of the skull; on the right cheek there were curved brush abrasions and roughened torn surfaces, which might have been caused by a blow inflicted by an object with a broad, rough surface; and on the left side of the head there was a similar wound over a depressed fracture of the skull. On the ground near the body was a large piece of wood resembling part of a railroad tie with rough, unfinished surfaces, and a large boulder embedded in the ground. Nearby was a wall composed of cinder blocks. The autopsy surgeon testified that the injuries to the head could have been caused by the head striking against the boulder, the rough piece of wood or any one of the blocks in the wall.

The deceased was 19 years old. On the night in question she had been at a night club with her brother and had left about 11 p. m. There was no physical evidence that the girl had been raped. The autopsy surgeon testified that he found no sperm cells and no evidence of injuries or blood in the vaginal area. He could not say whether or not sexual intercourse had been completed on the girl shortly before her death.

Upon learning that the police were looking for him, defendant surrendered on the next day, December 3. In vital particulars, his story differs from the People's case. His first statement to the police was little more than a brief admission of his encounter with the girl in the vicinity in question; that when he saw her she made 'a pass at him' but he did not touch or lay his hands on her; and that he went on home to his wife. Later that night defendant voluntarily gave a second statement which he signed. In this he stated that he and Harper on the night in question left a gambling game at their friend's home about 12 midnight; that they walked down the street together and Harper turned into a liquor store. Defendant then proceeded to little club where he saw the girl and 'some guy standing back by the wall.' She asked him if he 'wanted to have a good time' but he rebuffed her advance. Then the man numbled something and grabbed defendant by his arm; and defendant grabbed the girl and 'slung her into him.' Defendant had his arm about the man's neck, the girl advanced toward defendant, and in the struggle defendant hit her with his fist, tore her blouse, and she fell. Then defendant threw down the man and picking up a bottle, hit the man across the back or neck. The man scrambled to his feet and ran. Defendant left the girl lying on the ground and walked down the street where he came across Harper again. Harper asked defendant for a dollar, defendant refused, and they separated with defendant taking the bus home. At the trial defendant, in explanation of the differences between his two accounts as to the circumstances of his encounter with the girl, stated that he was afraid to tell the truth at first because he did not want 'to be involved with a homicide' but that he later decided he would be better off telling the truth.

The crucial portions of defendant's testimony at the trial, after he had testified to being accosted by the girl are here quoted:

'There was a fellow standing against the wall here. * * * He grabbed my left arm. When he grabbed me, I put my arm around the girl and flung her into the fellow and we started to fight.

'Now she came toward me and I wrenched at her and tore her blouse and hit her with my left hand or first (sic, evidently first).

'During that time I had the fellow around the neck with my right arm. When I let go I hit him and he was down on the ground, and I picked up something, I don't know if it was a bottle or what it was, and I hit him * * * across the back or neck area. He rolled over and got up and ran. When I left I noticed the girl was lying down. I walked around the corner. * * *'

Before he left he 'caught a glimpse of the girl'; she was 'laying on the ground.' He didn't take time to notice her further than that 'she was in a prone position.'

It is the People's theory that the verdict of murder in the first degree is supported by the circumstantial evidence from which the jury was entitled to draw the inference that the homicide was committed in the perpetration of, or attempt to perpetrate, rape upon the victim. Defendant cites People v. Craig, 49 Cal.2d 313, 316 P.2d 947, in support of the contention that the circumstances here in evidence are not sufficient to support an inference of rape or attempted rape; and accordingly, as in Craig, the homicide could at most be murder in the second degree. (People v. Craig, supra, 49 Cal.2d, pp. 318-319, 316 P.2d 947.) While on their facts there are many similarities between the Craig case and the one which is now before us, there are also significant differences. In Craig no witness saw the actual encounter between the defendant and his victim, while in the case before us the witness Harper testified that he saw defendant grab the girl and pull her behind the wall. Also, unlike Craig, a witness heard part of the encounter between the victim and her assailant a woman's voice calling faintly for help, a man's voice saying 'hush,' and a fast, unusual moving around. Of special significance is the fact that in Craig while the defendant's clothes were elsewhere covered with blood, there was 'no blood on defendant's trousers, other than at the cuff, and no blood on either the fly of his levis or shorts.' (49 Cal.2d, p. 318, 316 P.2d 947, 950.) The court in Craig relied greatly on this factor, as the following quotation shows: 'Since other articles of defendant's wearing apparel were well spattered with blood and his hands covered therewith, it would appear that had he raped the deceased, or attempted to do so, the levis and shorts would have shown signs of blood.' (49 Cal.2d, p. 318, 316 P.2d 950.) There is no similar circumstantial evidence pointing affirmatively to the absence of rape or attempted rape in the case before us. The Craig case was a close one on its facts, as evidenced by the dissent of three members of the court; and it is our opinion that there are sufficiently significant differences in the circumstances of the two cases to justify the conclusion that the Craig case is not controlling on the question of the sufficiency of the evidence in the case before us to support the inference, if the jury was persuaded to draw it, that the homicide was committed in perpetrating, or attempting to perpetrate, rape. (See People v. Cheary, 48 Cal.2d 301, 310, 309 P.2d 431.)

The Craig case does point up, however, the fact that ours is a close case on the question of whether rape or attempted rape was in fact circumstantially proved, and that the jury might well have found that while defendant...