People v. Mueller, Cr. 5668

• Decision Date: 27 December 1956
• Docket Number: Cr. 5668
• Citation: 147 Cal.App.2d 233,305 P.2d 178
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Ellwood Martin MUELLER, Defendant and Appellant.

Page 178

305 P.2d 178

147 Cal.App.2d 233

The PEOPLE of the State of California, Plaintiff and Respondent, v. Ellwood Martin MUELLER, Defendant and Appellant.

Cr. 5668.

District Court of Appeal, Second District, Division 2, California.

Dec. 27, 1956.

Rehearing Denied Jan. 11, 1957.

Hearing Denied Jan. 23, 1957.

Ball, Hunt & Hart, by Clark Heggeness, Long Beach, for appellant.

Edmund G. Brown, Atty. Gen., Joan D. Gross, Deputy Atty. Gen., for respondent.

ASHBURN, Justice.

Defendant, having been charged with assault with a deadly weapon upon one Dene Qualls, Pen.Code § 245, was convicted and sentenced to serve three months in the county jail. He appeals from the judgment and an order denying his motion for new trial. Prejudicial errors in the matter of instructions and misconduct of the deputy district attorney are asserted.

The assault was immediately followed by a vicious battery which inflicted serious injuries upon Qualls. While no claim is made of insufficiency of the evidence to support the verdict, the evaluation of the alleged errors requires a brief summarization of the evidence, which is sharply conflicting upon the central question of whether defendant started a fight or acted in self-defense.

On August 11, 1955, a group of five colored laborers were working upon the foundation of a building which was being constructed for Superior Overhead Garage Door Company, in the city of Compton. It had a collective bargaining agreement which covered and included Laborer's Local Union 507 of Long Beach, and which required that the wrokmen be union members. A subcontract has been let to Tom Erland, who claimed to the Door Company offcials that he was employing union men. He had five colored laborers on the job and they did not belong to the union. About three days before August 11th a union picket was placed in front of the premises; he belonged to Local 507. In the early morning of that day the men were finishing their job when a former workman came to the property, talked with the picket and left. Soon a group of six field representatives of Local 507 arrived, led by defendant Mueller who was business manager of said Local. There were stakes lying on the ground which had been used to support foundation forms. According to the version of the prosecution witnesses defendant and his group picked up stakes as they approached the workmen. Their foreman was Pearson Petty; he met defendant and his group, asked what they wanted, and Mueller replied that it was not any of their business. Petty asked, 'What are you doing on this property?' and Mueller started walking away. Petty then said, 'Look, we don't want any trouble here.' Mueller: 'Well, I'm going to give you plenty of trouble.' Petty: 'I'll call the police.' Mueller: 'You don't know who I am, I might be the police. I'm going to give you plenty of trouble and put you in jail besides.' One Evans was close to Mueller and as they raised their clubs Petty, according to his own version, ran to the truck and got a shovel to use as protection. According to other witnesses he started toward the street as if to telephone the police. When he left, Qualls, who was sub-foreman, started toward defendant. He had been using a trowel but had nothing in his hands and made no threat of any kind. Before he said anything Evans hit him from behind with a two-by-four stake, the blow landing on his shoulder. Evans then grabbed him and held his arms behind him. Thereupon defendant beat him across the head with a one-by-three piece of timber, striking him six or seven times, inflicting an open wound above the ear which bled freely. While this was going on other workmen ran to their truck to get shovels or other instruments of protection. Some got shovels, one a mattock, another two hammers. As they returned toward Qualls and Mueller, Petty and Morrah kept saying, 'Dene, don't fight back. Don't fight back. You fellows please go, we don't want any trouble.' As the shovel brigade neared them, Evans dropped Qualls who fell to his knees. Mueller and his group ran for his car and departed for the Union hall. In about 20 or 30 minutes they returned with about 15 men but the police were on the scene and no further violence occurred. The prosecution witnesses agreed that none of them had struck a blow or made a threat of any kind before defendant attacked Qualls; that Qualls did not start the fight and had nothing whatever in his hands when approaching Mueller. In substance the foregoing is the testimony of the five laborers, Qualls, Jones, Morrah, Abrams and Petty.

The defense version of the trouble was quite different. Mueller did hit Qualls several times with a stick but only in self-defense after Qualls had hit him with a shovel. According to the defense witnesses Mueller and his associates, though they conversed with the picket, did not know that the colored laborers were not union men. These union representatives were engaged in checking jobs that morning. They went to this one for the purpose of checking the men's cards and to ask about Jace Marshall's insurance, if perchance he was there; he was not. Mueller and Evans entered the job first. Mueller identified Petty as foreman, presented his building trades card, said he was there to check the job and to talk to Marshall if he was there. Forthwith Petty, the foreman, became violent, ordered Mueller off the job, using many nasty words. 'He told me that they wasn't any so-and-so union man going to check that job and for us to get off the job.' Mueller walked away from Petty, who was still calling the union men S.B.'s and ordering them off the property. As he did so, Brimhall yelled to him to watch out. Defendant turned and saw Qualls coming at him with a shovel, swinging it. He tried to dodge the blow but was knocked to the ground on one knee. He grabbed a stake as he went down and came up swinging it. Qualls was trying to hit him with a shovel but he dodged those blows and hit Qualls several times on the head, 'trying to stop his advance on me.' Defendant called to Evans for aid. Evans grabbed Qualls, held his arms and Mueller did not strike Qualls any more. By that time other laborers were approaching with shovels and 'were all screaming and hollering to kill them.' Petty hit Evans on the head with a shovel, then ran for the truck saying he had a gun in it and was going to 'kill all of us union * * * [S.B.'s] if we didn't get off the job.' Brimhall then asked the Petty group to please stop using shovels and 'that we would get off of the job, and they was one of the colored boys that agreed to that, so everybody dropped everything they had in their hands,' and the union group left. Such was the version of the defense witnesses as furnished by Mueller, Evans, Scharer, McGinnis (four of the six union men who had arrived together at the job), and one O'Malley who was working on adjoining property.

Obviously the juriors adopted the version of the facts which had been presented by the prosecution witnesses.

The first claim of error is refusal to give the following instruction which was requested by defendant: 'You may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, [or of an attempt to commit the offense,] if, in your judgment, the evidence supports such a verdict under my instructions.

'To enable you to apply the foregoing instruction, if your findings of fact require you to do so, I instruct you that the offense of assault with a deadly weapon, of which the defendant is charged in [......] the informantion, necessarily include the crime[s] of assault and battery.' The judge in refusing it endorsed the following words: 'Assault & battery not included either as a matter of fact or matter of law.'

Appellant argues that the judge was mistakenly relying upon cases such as People v. McCoy, 25 Cal.2d 177, 187, 153 P.2d 315, which hold that it is not necessary to give an instruction on a lesser offense when the evidence establishes that defendant was guilty of the greater one as charged or not guilty of any crime. It appears more probable that the ruling rests upon the principles stated in Fricke on California Cirminal Law, Fifth Edition: 'It has been said that 'The test in this state of a necessarily included offense is simply that where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense.' (People v. Greer, 30 Cal.2d 589 .) 'If, in the commission of acts made unlawful by one statute, the offender must always violate another, the one offense is necessarily included in the other' (People v. Whitlow, 113 Cal.App.2d 804 ; People v. Krupa, 64 Cal.App.2d 598 ). Before a lesser offense can be said to constitute a necessary part of the greater, all of the elements of the corpus delicti of the lesser offense must be included in the elements of the greater offense (People v. Whitlow, supra; People v. Greer, 30 Cal.2d 589 .)' (P. 36.) 'A charge of assault with a deadly weapon does not include battery (People v. Helbing, 61 Cal. 620; People v. McCaffrey, 118 Cal.App.2d 611 ) or the offense (Penal Code, sec. 417) of exhibiting a deadly weapon in an angry and threatening manner (People v. Diamond, 33 Cal.App.2d 518 ; People v. Piercy, 16 Cal.App. 13 ).' (P. 38.) The cited cases of Helbing and McCaffrey support the text, holding that the offense charged under § 245, Penal Code, does not include battery; that that is not an element of the offense of assault with a deadly weapon. See also, People v. McDaniels, 137 Cal. 192, 195, 69 P. 1006, 59 L.R.A. 578.

In the McCaffrey case this court said, 118 Cal.App.2d at page 618, 258 P.2d at page 562: 'Simple assault is nothing more than an unlawful attempt to commit a violent injury on another. Penal Code, § 240. A battery cannot be committed without assaulting the victim. But an assault can occur without committing a battery. The gravamen of the crime...