People v. Schwab

• Decision Date: 17 October 1955
• Docket Number: Cr. 5330
• Citation: 288 P.2d 627,136 Cal.App.2d 280
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Philip D. SCHWAB, Defendant and Appellant.

Page 627

288 P.2d 627

136 Cal.App.2d 280

The PEOPLE of the State of California, Plaintiff and Respondent, v. Philip D. SCHWAB, Defendant and Appellant.

Cr. 5330.

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

Oct. 17, 1955.

Morris Lavine, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., Elizabeth Miller, Deputy Atty. Gen., for respondent.

MOORE, Presiding Justice.

Pursuant to a verdict, appellant was convicted of burglary in the first degree and of assault with a deadly weapon with intent to commit murder. He seeks a reversal of the judgment which sentenced him to prison for two consecutive terms and from the order denying his motion for a new trial on the grounds that (1) the evidence is insufficient to sustain the judgments as to either count and (2) errors in giving and refusing instructions.

The Evidence

Appellant knocked down and cut William Duncan about one o'clock in the morning of July 3, 1954, in the latter's home. In view of his contention that he was unconscious at the time of his crime, it is necessary to review the occurrences of the immediate past in which the prisoner and his victim participated.

Appellant and his wife Irene were married in 1940. Their two children were Johnny and Carol, aged nine and ten. Prior to May 1954 they had resided in San Pedro, but at that time, Irene sued for divorce and Schwab moved to Buena Park. After the action was filed, Irene's lawyer requested Mr. and Mrs. Duncan to call the police if appellant should disturb his wife and children. This the Duncans undertook to do. About the middle of June 1954 after Mrs. Duncan observed appellant enter his wife's home, she telephoned Mrs. Schwab, inquired as to her safety. Mr. Duncan and his father-in-law approached the rear of the home to watch. Within ten minutes appellant departed for his automobile parked about three blocks away. To be sure that appellant was out of the way, Duncan walked along the same street on the opposite side, but did not speak.

Prior to Saturday, July 3, Irene confided to the Duncans that appellant had beaten her and that she feared her husband would kill her. On Sunday, June 27, while the Duncans were at Peck's Park, appellant and his friend Gutierrez found Carol and the Duncan child at play in the Duncan car and questioned them. When Duncan saw appellant and his companion approaching, he went forth to meet them, followed by Mrs. Martin, his mother-in-law. When asked by Duncan what they were doing, unpleasant words passed between them. Duncan became angry and told them to leave. Mrs. Martin told Gutierrez that he was the same man that had called at her house and asked questions, she was called 'a damn liar.' More angry words passed and Duncan told them to leave. They made their exit with the declaration they were going for the police. Instead, they obtained an order for Duncan to show cause why he should not be retrained from interfering with appellant's reasonable visits to his children. Such order was served on Duncan about 6:00 p. m. on July 2. That same evening, little Carol retired about 9:30 and was awakened by a knocking on the back door. When she heard footsteps coming to the front door, she looked through the window and saw appellant as he entered the front. Carol made her escape through the back door and attempted to open Duncan's rear door. Thereupon, appellant came out with an open knife and a flashlight in his hands, threw down the knife and opened Duncan's screen door. With his left hand he then picked up the knife and ordered Carol to go into her house. He changed the knife to his right hand and held the flashlight in his left. Thus equipped, he entered the Duncan house, calling out: 'Where is Irene?'

About the time he was pushing into the home of the Duncans, they were awakened by Irene's rapping on their window as she asked them to call the police. While the women were trying to reach the police by telephone, Mr. Duncan dressed, passed through his living room and dining room where he turned on the light and saw appellant enter the kitchen with an open knife in his right hand and a flashlight in his left. Having first inquired, 'Where is Irene?' appellant said, 'This is it. I am going to kill you.' With that he kicked Duncan in the groin, causing him to double up with pain. As appellant followed with blows and cuts with his knife, Duncan went from dining room to a bedroom and back to dining room where the wretched man collapsed. Appellant then stood over him and said: 'There, I guess that will take care of you.' As appellant was leaving the house, Mrs. Duncan pointed at him an unloaded .22 rifle she had gotten from her closet, and with emphatic speech ordered him to get out. That he hastily did.

Duncan was bleeding from multiple lacerations. He was conveyed under an oxygen tent to the hospital and given blood transfusions. It required two doctors and three and a half hours to sew up the wounds with about 200 sutures. One cut extended 34 centimeters from the base of the neck down the left side, severing all the superficial posterior neck muscles. Ugly wounds had been inflicted upon the left wrist and the deltoid muscle. An eight centimeter deep cut severed most of the left trapezius muscle. The left jaw was cut 'from the ear lobe to the mandibular notch' slicing a salivary gland and causing it to atrophy. A seven centimeter furrow on Duncan's left forehead severed face muscles. Cuts sliced through the left lower anterior chest, and the base of the right heel. The victim of this frenzied panther passed near Death's door. Although treated with antibiotics, his condition was precarious. Five days later he suffered a pulmonary embolus. Only by the ministrations of oxygen and indicated remedies were the doctors able to control the blood clotting in the lungs.

Schwab testified that he had gone to the Duncan home to talk to his wife; that he had no intention of injuring either her or Duncan; that Duncan met him in the kitchen and hit him in the face; that the next thing he remembers was his walking in the hills at dark time; that he did not know the hour, did not have his jacket on; that on arriving at a main highway, he thumbed a ride to Carson and Figueroa about 4:00 a. m.; that on arriving at an open service station, he telephoned his friend Gutierrez; that after their conference he telephoned his lawyer and then he and Gutierrez drove in appellant's car among the hills for about two hours only to discover his automobile ten miles from Mrs. Schwab's home. He then went to Buena Park, but surrendered to the police.

By virtue of appellant's testimony that he he had no memory of any of his acts after meeting Mr. Duncan in the latter's home about 1:30 a. m. July 3, he contends that he could not be guilty of either burglary or assault with a deadly weapon. A determination of that fact is not as easy as it appears to appellant. If the jury had had no proof before them except his testimony, they might have made a finding favorable to appellant's claim. But it was their duty to consider all the facts detailed from the witness stand. They were cognizant of the long controversy of appellant and Irene; of his having been ordered not to molest her; of counsel's request that Duncan watch over her and notify the police in the event appellant should disturb her.

It was proved that appellant had obtained a court order that he might see his children but had been frustrated in his attempts to visit them; that after his consultation with a neighbor of Mrs. Schwab, appellant and Gutierrez had gone to Peck's Park and saw one of his children and they were approached by Duncan who used abusive language to the men and threatened them with the police. At that time Mrs. Martin reminded Gutierrez how he, at her home, had called her a 'damn liar'; how other vile words were then used and Duncan drove them from the park, followed them with his dog along the street to appellant's automobile and ordered them to get out or they would get it; how the two men departed for the police station and reported the incident. About June 30 appellant talked with his son on the telephone and was told by the child the latter and his mother were going away and would not see appellant anymore. Such statement made appellant 'feel very bad.' On July 2, appellant vainly attempted to engage Irene in conversation by telephone. Failing to do so, he drank six cans of beer. From that time, appellant pursued his purpose without success. About 12:30 a. m. he went to her place of residence, and thence into Duncan's home where the tragedy occurred.

The jury had the duty to determine whether appellant was unconscious when he entered Duncan's home and knew nothing of slashing Duncan with his knife, or had entered the place with malice in his heart and a preconceived purpose in his mind to punish the man who, he thought, had defeated his attempts to reconcile his family; the man who had driven him from a public park and threatened him with the police. The facts are such as would have justified a jury in finding that appellant was filled with beer and carried a heart of hate; that he had been irritated by Duncan's behavior and sought to be avenged; that he had armed himself with a small knife and a flashlight to find his way into strange premises and to cut his way to freedom from interference. Performing a diabolical act while unconscious is an event of such rare occurrence that a jury might be justified in scorning it as unreasonable and false, and in adopting the conclusion that the crime was the outgrowth of dire resentment and wicked aims.

It follows that if the jury believed appellant entered Duncan's home to murder or to assault the sleeping man with a deadly weapon, he was guilty of burglary the moment he entered. People v. Franklin, 106 Cal.App.2d 528, 530, 235 P.2d 402; People v. Stewart, 113 Cal.App.2d 687, 690, 248 P.2d 768; People v. Smith, 84 Cal.App.2d 509, 511, 190 P.2d 941. Where...