People v. Scott

• Decision Date: 05 February 1960
• Docket Number: Cr. 6517
• Citation: 348 P.2d 882,2 Cal.Rptr. 274,53 Cal.2d 558
• Court: California Supreme Court
• Parties: , 348 P.2d 882 PEOPLE of State of California, Plaintiff and Respondent, v. George Albert SCOTT and Curtis C. Lichten-walter, Defendants, George Albert Scott, Defendant and Appellant.

Page 274

2 Cal.Rptr. 274

53 Cal.2d 558, 348 P.2d 882

PEOPLE of State of California, Plaintiff and Respondent, v. George Albert SCOTT and Curtis C. Lichten-walter, Defendants George Albert Scott, Defendant and Appellant.

Cr. 6517.

Supreme Court of California, In Bank.

Feb. 5, 1960.

Rehearing Denied March 3, 1960.

Morris Lavine, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Ernest E. Sanchez, Deputy Atty. Gen., for respondent.

SPENCE, Justice.

Defendant Scott and one Lichtenwalter were jointly indicted on six counts of robbery and one count of murder. Scott was charged with being armed with a deadly weapon, a sawed-off shotgun, at the time of commission of the above offenses. In addition, the indictment charged Scott with two further counts of robbery. By amendment, Scott was also charged with two prior felony convictions, which he admitted. Scott pleaded not guilty and not guilty by reason of insanity to the nine counts. The jury found him guilty of robbery of the first degree on counts I to VI (Pen.Code § 211a, armed robbery), murder of the first degree on count VII (Pen.Code, § 189), and robbery of the second degree on counts VIII and IX. The jury fixed Scott's penalty at death on the murder count and found him sane at the time the crimes were committed. His motions for a new trial were denied. Judgment was then entered imposing the death penalty on the murder count and the penalties prescribed by law on the robbery counts. This appeal comes here automatically. Pen.Code, § 1239, subd. (b).

Lichtenwalter was acquitted on the murder count but was found guilty of robbery in the first degree on counts I to VI. He then withdrew his plea of not guilty by reason of insanity to these six counts. He was sentenced on the robbery counts and has not appealed.

Defendant Scott makes no contention that the evidence was insufficient to support the judgment. At the trial on the issue of guilt, Scott presented no evidence but in the ensuing proceedings for fixing the penalty and determining the sanity issue he did produce some witnesses. He did not take the witness stand himself in any of the proceedings. His appeal is based on his contentions: (1) That the court committed error in directing the jury to return to the jury room for further deliberation and in failing to preserve the original verdicts; (2) that the court improperly denied his motion for a mistrial; and (3) that the court made improper comment on the evidence at the end of the sanity proceedings, so as to deny him a fair trial. We have concluded that these contentions are without merit.

The evidence concerning the commission of these crimes is without conflict. Scott and Lichtenwalter jointly perpetrated six robberies of taverns in Los Angeles between December 16 and December 30, 1958. In each instance, the same general pattern was followed in that both the cash receipts of the bar owner and the contents of wallets of customers in the bar were taken. Neither of defendants wore a mask or other facial disguise. Scott on each occasion was armed with a sawed-off shotgun. On the last of these joint robberies, Scott shot and killed a patron in the bar because he refused to give up his wallet. Thereafter, on January 7, 1959, Scott alone committed two further tavern robberies in Los Angeles.

The court fully instructed on the crime of robbery, stating that its commission by one armed with a deadly weapon constituted robbery in the first degree and instructing the jury that if they found the 'crimes of robbery were committed and that any one of the persons who committed it was armed with a 12 gauge sawed-off shotgun (as charged in counts I to VI), the robbery would be of the first degree.' The jury, however, returned with verdicts finding Lichtenwalter guilty only of robbery in the second degree. The court refused to receive these verdicts, reinstructed the jury on the degrees of robbery, and directed the jury to resume further deliberation. This was proper. Under section 1161 of the Penal Code, the court is authorized, when 'there is a verdict of conviction (and) it appears to the Court that the jury have mistaken the law,' to explain the mistake and direct a reconsideration. The evidence submitted to the jury warranted only one of two conclusions as to the guilt of the codefendants charged under counts I to VI: Either guilty of robbery in the first degree or not guilty. Accordingly, when the jury returned verdicts finding Lichtenwalter guilty of robbery but only in the second degree, these verdicts were contrary to law, and it was the court's duty to correct the jury's understanding so that proper verdicts as to Lichtenwalter could be returned. People v. Crawford, 115 Cal.App.2d 838, 841-842, 252 P.2d 963; 48 Cal.Jur.2d Trial, § 515, p. 521.

Defendant Scott argues that the verdicts originally returned should have been preserved so as to have a complete record of the trial in his case, and he indulges in considerable speculation on the premise that 'if one set of verdicts was tainted, so was the other.' But there is nothing in the record to indicate that the jury had any uncertainty as to the guilt of Scott or that the verdicts of robbery in the first degree against him, constituting part of the present record on appeal, were not the original verdicts against Scott. Under the circumstances, the disposition of Scott's appeal could not be affected even if the original erroneous verdicts against Lichtenwalter had been included in the record here.

Nor did the court err in failing to declare a mistrial. After the court had reinstructed the jury and directed further deliberation, the jury again returned and handed two sets of verdicts to the court. Upon examining the verdicts, the court discovered that they were contradictory with respect to Lichtenwalter and directed the jury to retire again and then bring back one set of verdicts. Following the jury's retirement, both defendants moved for a mistrial upon the ground that the jury did not understand the instructions. The motion was denied. The record merely shows an impropriety on the part of the jury in the mechanics of returning the verdicts to the court, by including both the old and the new verdicts. This was readily corrected when the court explained the error. In these circumstances, the court, in the exercise of its sound discretion, properly denied the motion for mistrial. People v. Grant, 53 Cal.App.2d 286, 288, 127 P.2d 567; 48 Cal.Jur.2d Trial, § 349, pp. 348-349.

Finally, Scott contends that he was deprived of a fair trial because of the court's comments on the evidence at the end of the proceedings on the sanity issue. He claims that the court exceeded its power and went beyond the bounds of permissible comment as sanctioned by section 19 of article VI of our state Constitution. That section, as amended in 1934, declares that the 'court may instruct the jury regarding the law applicable to the facts of the case, and may make such comment on the evidence and the testimony and credibility of any witness as in its opinion is necessary for the proper determination of the case. The court shall inform the jury in all cases that the jurors are the exclusive judges of all questions of fact submitted to them and of the credibility of the witnesses.' (See also Pen.Code, § 1093, subd. 6.)

It appears that after the jury had been instructed at the conclusion of the sanity proceedings and had still not reached a verdict by the afternoon of the next day, the court recalled the jury to the courtroom and stated that it wished to give some 'additional instructions.' At the outset, the court referred to the state Constitution (art. VI, § 19, as amended 1934) as authority for the 'several comments' it was about to make. It then stated the jury's problem, to be determined from the evidence, was whether Scott was sane at the time of commission of the offenses charged, and it proceeded to note briefly some asspects of the law and the record which had a bearing thereon: that Scott had the burden of overcoming the presumption of sanity at the times in question by a preponderance of the evidence; that the only evidence he produced was the testimony of his mother that she had seen him twice in the state prison before commission of the alleged offenses (when he was incarcerated on a prior felony conviction) and once in the county jail since his present arrest, and that she did not see him during the times of commission of the alleged offenses; that the People had produced three court-appointed psychiatrists, all of whom testified that Scott was sane at the time of commission of the offenses charged as well as presently sane; and that the People had also presented the circumstances of the alleged offenses for consideration in determining whether Scott was legally sane at those times. In closing its remarks, the court reiterated the jury's responsibility to determine the sanity issue and cautioned the jury that it should 'exercise the same...