People v. Redston

• Decision Date: 27 February 1956
• Docket Number: Cr. 5436
• Citation: 293 P.2d 880,139 Cal.App.2d 485
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. George W. REDSTON, Defendant and Appellant.

Page 880

293 P.2d 880

139 Cal.App.2d 485

The PEOPLE of the State of California, Plaintiff and Respondent, v. George W. REDSTON, Defendant and Appellant.

Cr. 5436.

District Court of Appeal, Second District, Division 1, California.

Feb. 27, 1956.

Aaron Sapiro, Sam Bubrick, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Victor Griffith, Deputy Atty. Gen., for respondent.

FOURT, Justice.

Defendant was charged in an information with the commission of two felonies: count I, a violation of section 187 of the Penal Code, in that on December 25, 1954, he murdered Louis Carl Roeckle, and count II, a violation of section 245 of the Penal Code, in that on December 25, 1954, he committed an assault with a deadly weapon upon Victor J. Dignazio. Defendant was further charged with a prior conviction of a felony, namely murder in the state of Texas on September 25, 1936.

Defendant admitted the prior conviction and plead not guilty, and not guilty by reason of insanity, to each of the counts.

Trial was by jury and the defendant was found guilty of manslaughter as to count I. The jury disagreed as to count II, and that count was thereafter dismissed upon motion of the district attorney. The defendant withdrew his plea of not guilty by reason of insanity, made a motion for probation and for a new trial, each of such motions was denied and he was thereupon sentenced to the state prison. The defendant has appealed from the judgment and from the order denying his motion for a new trial.

On December 24, 1954, and for several years prior thereto, the defendant was acting as a bartender in the Pecon Club on South La Brea Avenue in the city of Los Angeles. Victor Dignizio was a steel worker who, with some fellow employees, had done a great deal of drinking just before going to the defendant's place of business about 3:00 p. m., December 24, 1954. Dignazio was a frequenter of the bar in question. He was in the bar substantially all of the time after his arrival until about 1:30 o'clock a. m., December 25, 1954, and during most of this time he was ordering and consuming drinks.

At about 6:00 p. m., Dignazio was talking with one Larry Sampson at the bar, and apparently the defendant ordered Sampson to leave the establishment because of his bad conduct and intoxication. Dignazio and the defendant thereupon had some discussion with reference to that episode, wherein Dignazio indicated that it was unfair to Sampson to order him to leave. Dignazio continued to consume drinks to the point where he was finally refused any further drinks.

Later in the evening, John Wise, Richard Sayer and Louis Roeckle were in the bar. Sayer had a drink with Dignazio. The defendant told Sayer that Dignazio and Roeckle and been agitating him and he further told Dignazio to leave the establishment. Dignazio stated that he had been having an argument with the defendant about communism. The defendant maintained a large sign, among others over the bar, reading 'Fight Communism', and Dignazio had expressed disapproval of the idea. The defendant again told Dignazio to leave the place of business and came around the end of the bar for the purpose of turning out the lights, to the end that everyone would go home. Upon the defendant's coming from behind the bar, Dignazio grabbed him by the head in a headlock. Sayer pulled Dignazio off of the defendant, whereupon the defendant ran back behind the bar with Dignazio pursuing him. Defendant was afraid of Dignazio and fearful that he would be badly injured by him. Dignazio had frequently talked of his great strength, had threatened the defendant during the evening, had told him that he would smash him like a grape and that he would break his arm like a match.

Upon Dignazio's continuing to come behind the bar, defendant grabbed a bat which was used as an ice tamper and struck Dignazio on the top of the head, cutting his scalp. There was blood behind the bar at a point about three feet from the open end. The testimony is conflicting as to how Roeckle got hit. Some evidence is to the effect that while the defendant was fighting off Dignazio, that Roeckle, who was on the front side of the bar, reached across the bar, grabbed the defendant and that thereupon, the defendant, from behind the bar, struck Roeckle with the bat; that Roeckle had a large ashtray in one of his hands at the time; that it was thought that the defendant hit Roeckle only once, but that after the defendant came from behind the bar Roeckle was trying to come at the defendant, and that defendant may have hit him the second time. Other testimony is to the effect that after felling Dignazio behind the bar, defendant came to the front of the bar and struck Roeckle on the head several times; that the defendant then went behind the bar and hit Dignazio again, and thereafter returned to Roeckle and hit him again while he was lying on the bar room floor.

During the melee Wise and Sayer ran outside. Officers Brown and Ward of the Los Angeles Police Department met Wise and a Mr. Bowes, and after talking with them, entered the bar. Prior to the officers' arriving, Sayer had returned to the bar and lifted and carried Roeckle some 200 feet outside of the building. Sayer intended to take Roeckle to an emergency facility for medical attention. Dignazio had, in the meantime, gotten up, walked out of the establishment, and he later went to a doctor and hospital for treatment.

The defendant was excited and confused when questioned by the officers in the first instance, and at that time he told several untruths. Defendant denied any trouble at the bar. He stated that there had been some trouble earlier, but that the men had left; that there had been an argument between some men, but no real fight. When asked if he had hit anyone with a bat he replied that he had not, that there was no bat in the place. The bat was later located by one of the officers and inquiry was made about a red smear on it, and a smear on defendant's torn shirt. Defendant stated that the smears were red paint. Roeckle was located by one of the officers in an unconscious condition at the point where he had been taken by Sayer. Defendant, upon being confronted with this, thereupon admitted that there had been a fight, and that he had struck the two men who had attacked him.

Defendant was arrested and taken to the police station and questioned at about 2:30 o'clock a. m., December 25th, by officers Danforth and Jackson. Sayer was also arrested and taken to the same police station. Roeckle was taken to a hospital and died on December 27, 1954, after an operation on his skull.

At the police station, at about 2:30 a. m., December 25th, a statement was taken from the defendant which was tape recorded without his knowledge. Later, following the death of Roeckle, another statement was taken from the defendant, which was also tape recorded without his knowledge, and still later a third statement was taken, but not tape recorded.

An autopsy surgeon testified that the death of Roeckle was due to a fractured skull; that he was unable to say whether the deceased received one blow or multiple blows.

The defendant contends that the trial court erred in receiving into evidence as People's Exhibit 1, a picture of Roeckle apparently taken during the course of the autopsy. The picture is of the deceased with the hair shaved off and showing certain incisions on the head, neck and chest, apparently made during the autopsy. This picture was followed by two others. People's Exhibit No. 2 was a picture of the upper part of the skull, after the same had been removed with an electric saw. One piece of bone was missing which had apparently been lost in the course of the autopsy or thereafter. People's Exhibit No. 3 was a picture of the base of the skull after the top had been sawed off and removed. The pictures are gnastly and gruesome. There was never any question as to the identity of the deceased and there was no question as to the death. The general rule is that, 'Where the inevitable effect of introducing a photograph is to arouse the sympathy or prejudice of the jury, and the fact in proof of which it is offered is not denied, or where its introduction serves no purpose other than to inflame the jurors' emotions, it is not admissible.' 18 Cal.Jur.2d 710. In the case of People v. Burns, 109 Cal.App.2d 524, at pages 541-542, 241 P.2d 308, at page 319, 242 P.2d 9, the court said, with reference to some pictures of the deceased: 'They were particularly horrible because the head was completely shaved. The head shows large incisions which had been made for the autopsy and were thereafter sewn together. * * * Bruises and abrasions appear on the face, neck and arms. * * * No one disputed that the deceased received them. * * * How looking at the pictures would help the jury understand what caused them or how they could cause death, it is difficult to understand. The completely bald head, the surgical cuts and sutures, the ugly punctures, the inverted lips with the instruments attached, make the body so grotesque and horrible that it is doubtful if the average juror could be persuaded to look at the pictures while the witness pointed out the bruises and abrasions. In view of the fact that no question was raised as to these bruises and abrasions, and the fact that a view of them was of no particular value to the jury, it is obvious that the only purpose of exhibiting them was to inflame the jury's emotions against defendant. * * * In California it has been held that photographs of this kind are admissible even though they show marks of the incisions for the autopsy, People v. Gomez, 209 Cal. 296, 286 P. 998, and even though they might inflame the minds of the jurors against the defendant. People v. Burkhart, 211 Cal. 726, 297 P. 11. However, in every case in which they were admitted, with the possible exception of the Burkhart case, supra, where the 'evidence points...