People v. Poindexter

• Decision Date: 24 October 1958
• Docket Number: Cr. 6268
• Citation: 51 Cal.2d 142,330 P.2d 763
• Court: California Supreme Court
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Luther PONDEXTER, Defendant and Appellant.

Page 763

330 P.2d 763

51 Cal.2d 142

PEOPLE of the State of California, Plaintiff and Respondent, v. Luther PONDEXTER, Defendant and Appellant.

Cr. 6268.

Supreme Court of California, In Bank.

Oct. 24, 1958.

Rehearing Denied Nov. 19, 1958.

Kenneth C. Zwerin, San Francisco, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., John S. McInerny and Victor Griffith, Deputy Attys. Gen., Thomas C. Lynch, Dist. Atty., and

Walter H. Giubbini, Asst. Dist. Atty., San Francisco, for respondent.

SPENCE, Justice.

Defendant was charged with the murder of Douglas Callies and with the furnishing of narcotics to a minor in violation of section 11714 of the Health and Safety Code. He admitted three prior felony convictions. The jury returned verdicts of guilty and found the murder to be second degree. Defendant has appealed, contending: (1) that the evidence is insufficient to sustain the convictions; (2) that he was convicted on the uncorroborated testimony of an accomplice; (3) that the trial court committed prejudicial error in instructing on the elements of murder, and in failing to give a cautionary instruction relative to the evidence of an oral admission by defendant. We have concluded that defendant's contentions cannot be sustained, and that the judgment should be affirmed.

The alleged offenses occurred in San Francisco. Stanley Hoffman and the deceased, Douglas Callies, had been friends for several years. Both were minors, twenty years old. On the evening of September 27, 1956, Hoffman had planned to take two girls to the theatre. About 5:30 p. m., as Hoffman was leaving his home to pick up the girls, he received a telephone call from Callies. The latter, upon learning of Hoffman's plans, asked if he could go along and Hoffman agreed. Thereupon Hoffman drove to Callies' home, and the two then proceeded to the Fillmore Street area because Callies, who was in the Merchant Marine and had just returned from a cruise, wanted to buy some heroin. Both young men had used heroin in the past, and on several occasions they had used it together.

According to Hoffman, they first saw defendant on Fillmore Street near Golden Gate Avenue. Hoffman stopped his car and defendant got in the back seat. Hoffman had known defendant for several months, had previously purchased heroin from defendant, and had taken the heroin shots in defendant's hotel room on those occasions. Hoffman introduced Callies to defendant, told defendant that Callies wanted to buy some heroin, and defendant stated that he thought he could get some. Callies then gave defendant $50 and defendant left the car. In a few minutes defendant returned, gave Callies $15 in change, said 'Everything is all right,' and directed Hoffman to drive to a service station.

Hoffman proceeded to a nearby station and drove up to the pumps. Callies stayed with the car and arranged to get some gas, while defendant, carrying the heroin and the 'outfit,' accompanied Hoffman to the men's room. There they went behind the dividing partition, where defendant prepared the drug by cooking it in a spoon, helped Hoffman put a tourniquet around the latter's arm and held it in place while Hoffman took only a small injection as he was driving the car. Thereupon Hoffman went outside to telephone the girls that he would be late, and then waited in the car. Meanwhile Callies joined defendant in the men's room. In a few minutes, Callies and defendant returned to the car. Callies got into the front seat and sat with his chin on his chest. He acted 'like he was almost unconscious,' 'mumbling a little bit,' not 'saying too much' but 'groaning and moaning.' Defendant got into the back seat, and Hoffman drove to defendant's hotel, where defendant remained.

Hoffman then drove to the Ingleside district to pick up the two girls. The girls wanted to sit in the front seat, so Callies, who was in a dazed condition but 'able to stand on his feet' though 'sort of fumbling around,' was moved to the back seat. Hoffman drove to the neighborhood theatre and parked the car. It was about 7:30 p. m. Hoffman asked Callies if he wanted to go to the movie and Callies mumbled 'no.' Hoffman left Callies in the back seat of the car, rolled down the window, and locked all the doors. He took Callies' wallet and gave it to one of the girls to put in her purse, as he was afraid someone might try to 'roll' Callies, thinking that he was drunk.

After staying for the full double feature program, Hoffman and the two girls returned to the car. As they approached the car, Hoffman saw Callies 'leaning over toward the window' and thought that he was asleep. Hoffman slapped Callies twice but he did not move. Hoffman then felt Callies' face; it was cold. Hoffman became 'scared,' and finding that Callies had no pulse, he told the girls that Callies was dead. Hoffman was going to telephone the police, but the girls objected as they wanted to avoid any publicity. One of the girls began to cry, and Hoffman took her home. Thereupon Hoffman and the other girl drove to a churchyard, where Hoffman took Callies' body out of the car and placed it on the ground. Then after taking his companion home, Hoffman returned to his own home, without contacting the police. Hoffman was arrested about 11 a. m. the next day, September 28.

A number of experts testified that Callies died from narcotics poisoning. Heroin is a derivative of morphine, and an amount of morphine sufficient to cause death was found in Callies' body. There was also found an amount of alcohol equivalent to three-and-a-half bottles of beer or shots of whiskey, which was ingested a relatively short time before death. The amount of alcohol, however, was not significant enough to contribute to death. No needle marks were found on the body by the autopsy surgeon, but he indicated that this was not uncommon, for it is very easy to inject material so that the site of the injection would be invisible. The autopsy surgeon estimated that at the time he examined the body, which was at 11 a. m. on September 28, the deceased had been dead over four to six hours but less than two or three days.

Defendant was the sole defense witness. He testified that he had known Hoffman for about three months and had seen him several times. He denied ever selling narcotics to Hoffman or using narcotics with Hoffman, except for the single occasion on September 27 here in question. He stated that Hoffman once asked him to sell narcotics which Hoffman's friend was to bring back from overseas, but that he had refused. He further stated that on one occasion Hoffman had borrowed his 'outfit' to use with some other persons at a service station; and that on another occasion Hoffman had come to his hotel to ask for the use of his room to take an injection, but that he had refused because Hoffman had previously had trouble with his landlord.

With respect to the events of September 27, 1956, defendant testified that he had met Hoffman and Callies on the street and that they asked him if they could use his room and 'outfit' to take some narcotics. He stated that he refused to let them use his room but agreed to let them use his 'outfit' in return for some of their heroin. Defendant then went to his room, got his 'outfit,' and the three proceeded to the service station. There they went to the men's room in the sequence as related by Hoffman: first, defendant and Hoffman, but that Hoffman prepared the narcotic solution while he, defendant, readied the hypodermic needle, and that he then stood guard at the door while Hoffman went behind the partition and presumably took 'a fix' that Hoffman then emerged from the room and sent Callies in to 'take a fix,' while defendant continued to guard the door; and finally, after Callies finished, defendant went in for his own 'fix.' Defendant denied that he had mixed the narcotic solution or assisted Hoffman and Callies in taking their shots. He further denied having received $35 from Callies as payment for the heroin, but claimed that Callies furnished the heroin, persumably having brought it in from overseas.

As a rebuttal witness, the prosecution produced a policewoman who had accompanied Hoffman to defendant's room on the evening of October 1, 1956, before defendant's arrest. She stated that she was introduced to defendant as a friend of Hoffman, and that in her presence defendant told Hoffman that he had sold 'a $35 paper' to Callies on the fatal night. On surrebuttal, defendant again took the witness-stand, admitted the related visit of October 1 in his room but claimed that the only mention of narcotics there was Hoffman's request of defendant to 'get us some stuff' and that he, defendant, refused. Defendant denied that there was any conversation relative to 'a $35 paper.'

Defendant first contends that the evidence was insufficient to sustain the convictions. The 'test on appeal is whether there is substantial evidence to support the conclusion of the trier of fact. It is not whether guilt is established beyond a reasonable doubt.' People v. Daugherty, 40 Cal.2d 876, 885, 256 P.2d 911, 916; see also People v. Newland, 15 Cal.2d 678, 681, 104 P.2d 778. Applying this test first to the charge of furnishing narcotics to a minor (Health & Saf.Code, § 11714), the record clearly sustains the conviction. While there was conflicting testimony as to who supplied the heroin, the jury apparently chose to accredit Hoffman's version, and its determination will not be disturbed.

Defendant makes a further objection to this conviction because the indictment did not include the name of the minor victim. But such omission did not render this count in the indictment defective. People v. Leiva, 134 Cal.App.2d 100, 102, 285 P.2d 46. There was no...