People v. Odle

Decision Date27 April 1951
Docket NumberCr. 5156
Citation37 Cal.2d 52,230 P.2d 345
CourtCalifornia Supreme Court
PartiesPEOPLE v. ODLE.

Z. B. West, Santa Ana and Morris Lavine, Los Angeles, for appellant.

Fred N. Howser and Edmund G. Brown, Attys. Gen. and Frank Richards, Deputy Atty. Gen., for respondent.

TRAYNOR, Justice.

This appeal is from a judgment imposing the death penalty following the conviction of defendant of first-degree murder.

Defendant and deceased were married in Huntington Park, California, on April 6, 1947. They lived together in Santa Ana, California, where defendant was employed. Shortly before Christmas, 1948, deceased became a saleslady and department manager for Davis Stationers on East Fourth Street in Santa Ana. Early in March, 1950, deceased left defendant and instituted divorce proceedings that resulted in the entry of an interlocutory decree of divorce in her favor on April 25, 1950. Defendant repeatedly importuned deceased to return to him, both before and after the entry of the decree. On April 10, 1950, he quit his employment, presumably because of his depression over the separation. Thereafter not only did he frequently visit his wife at Davis Stationers to persuade her to return to him, but during a great part of her working hours he stationed himself at the corner of Fourth and Main, where Davis Stationers was located, or across the street at points where he could observe his wife and she could see him. These activities were apparently designed to convince her of his grief and the genuineness of his requests that she return to him.

During this period, defendant enlisted the aid of several of their friends to persuade her to return to him. These efforts were unavailing. About the time he quit his employment, defendant informed a friend that he intended to buy a gun and kill his wife unless she returned to him. On April 13, 1950, he purchased the pistol with which he later killed his wife. After the purchase he repeated to several friends that he would kill his wife if she did not return to him. They informed defendant's wife of his threats, but she apparently did not take them seriously.

On May 1, 1950, five days before the homicide, defendant encountered a friend on the street across from Davis Stationers. After some conversation about defendant's marital difficulties and his grief at the separation, defendant stated 'Be sure and watch the newspapers for the next week or ten days.' The friend asked 'Oh, is that so, John?' Defendant replied 'Yes, it is too bad, but that is just what it has to be.'

On the morning of May 6, 1950, the day of the homicide, defendant took some laundry to a cleaning and landry agency that had done work for him for more than two years. He asked the proprietress to deliver the laundry to the Y.M.C.A, where he was then living, 'because I don't believe I will be free to call for it.' About 1:30 a. m. that day, defendant entered Woolworth's on Main Street, across the street from Davis Stationers. He talked with the girl in charge of the candy counter and informed her that he was going across the street to see his wife, who had better not forget that he had a gun.

Immediately thereafter, defendant crossed the street, entered the Davis Stationers store and stood by the counter where his wife was working. Shortly after 2 p. m., defendant asked his wife and Mr. Davis, her employer, to accompany him to the stockroom in the rear of the store so that they might converse quietly. As they entered the stockroom, defendant repeated his plea for a reconciliation. She refused, and he then took the pistol from his pocket and shot her. As she fell forward he fired two more shots into her body and head. Mr. Davis ran out the back door just as defendant fired a shot at him that lodged in the door behind him. In the ensuing excitement, defendant escaped out the back door. He went immediately to the Santa Ana police station and surrendered. He told the desk officer in charge 'I have just shot my wife. She is at the Davis Stationery Store. I have just shot my wife. Here, take this gun.' After questioning by several police officers, defendant signed a full confession that he had killed his wife with the gun, which he had purchased for that purpose.

Defendant pleaded not guilty and not guilty by reason of insanity and waived a trial by jury. It was stipulated that the evidence given in the trial on the plea of not guilty could be considered by the trial judge in the trial on the plea of not guilty by reason of insanity. Following testimony establishing the foregoing facts, defendant introduced without objection the testimony of a psychiatrist, Dr. Victor Parkin, to establish that defendant was mentally ill and therefore not capable of forming a clear intention to kill. Dr Parkin conceded that defendant's mental illness did not meet the tests of legal insanity, but state that it precluded his formation of an intention to kill 'with the clarity of though that would make him entirely guilty of an act of murder. Homicide, yes.' The trial court found defendant guilty of murder in the first degree, but reserved its decision fixing the penalty until after the trial on the plea of not guilty by reason of insanity.

In that trial Dr. Robert Wyers, a psychiatrist called by the court, testified that in his opinion defendant was legally sane that he knew the nature and consequences of the act of killing his wife; that although he was in need of psychiatric treatment, he was not psychotic but was in fact classifiable as mentally normal; and that he was capable of planning the murder of his wife and executing his plan with full knowledge of what he was doing. The opinion of Dr. Wyers was corroborated by Dr. William Musfelt, another phychiatrist called by the court, and by Dr. Hyman Tucker, a psychiatrist called by the prosecution. Defendant called no witnesses. The trial court thereupon found defendant sane and sentenced him to be executed.

The foregoing evidence is clearly sufficient to support the trial court's determination that defendant committed a willful, deliberate, and premediated murder and is therefore guilty of murder of the first degree. Penal Code, § 189. Defendant contends, however, that the trial court abused its discretion by imposing the penalty of death rather than life imprisonment, and that this court has power under the 1949 amendment to Penal Code section 1260 to reduce the penalty to life imprisonment.

That section provides: 'The court may reverse, affirm, or modify a judgment or order appealed from, or reduce the degree of the offense or the punishment imposed, and may set aside, affirm, or modify any or all of the proceedings, subsequent to, or dependent upon, such judgment or order, and may, if proper, order a new trial.' (Italicized provisions added by Stats.1949, ch. 1309, § 1.)

Before the amendment of section 1260 it was settled that this court had no power to review the exercise of the jury's or trial court's discretion in fixing the penalty for first degree murder. People v. Danielly, 33 Cal.2d 362, 383, 202 P.2d 18; People v. Tuthill, 32 Cal.2d 819, 827, 198 P.2d 505. Similarly, it could not reweigh the evidence in determining whether the trier of fact had correctly decided the degree of the offense, but could only order f reduction in the degree if the evidence was legally inadequate to support the finding of the higher degree. Penal Code, § 1181(6); People v. Thomas, 25 Cal.2d 880, 905, 156 P.2d 7; People v. Bender, 27 Cal.2d 164, 186, 163 P.2d 8; People v. Valentine, 28 Cal.2d 121, 144, 169 P.2d 1. It is necessary to determine, therefore, whether the amendment to section 1260 was intended to broaden the scope of appellate review over the determination of the degree of the offense and the punishment therefor.

In the light of the legislative history of sections 1260 and 1181 of the Penal Code, we have concluded that the 1949 amendment was not intended to broaden the scope of appellate review. Before 1927 if it was determined on appeal that the evidence was insufficient to support a verdict of guilty of a higher degree of an offense but sufficient to support a verdict of a lower degree, the appellate court had no power to order a modification of the judgment but was required to reverse the judgment and order a new trial. People v. Nagy, 199 Cal. 235, 239, 248 P. 906. At that time subdivision 6 of section 1181 of the Penal Code provided that the trial court could grant a new trial when the verdict was contrary to law or evidence. To obviate the necessity of a new trial, when the insufficiency of the evidence went only to the degree of the crime, the Legislature in 1927 amended section 1181 to provide for modification of the judgment either by the trial or appellate court when 'the evidence shows the defendant to be not guilty of the degree of the crime of which he was convicted, but guilty of a lesser degree thereof, or of a lesser crime included therein'. Penal Code, § 1181(6); see, People v. Kelley, 208 Cal. 387, 391-392, 281 P. 609.

In 1949 the Special Crime Study Commission on Criminal Law and Procedure in its second progress report recommended a further amendment to Penal Code section 1181 to obviate the necessity of granting new trials when the punishment fixed by the jury or trial court was not supported by the law or evidence. The commission stated, 'At the present time a trial judge on the hearing of a motion for a new trial is authorized in a proper case, in lieu of granting said motion, to modify the verdict so as to reduce the degree of the offense of which the defendant stands convicted but has no authority to change or modify the punishment in those cases in which the fixing of the punishment is part of the verdict. If such authority were vested in the trial court it is believed that in certain circumstances a new trial of the entire cause might be avoided.' Second Progress Report of the Special Crime Study Commission on Criminal Law...

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