People v. Sigal
Decision Date | 28 June 1965 |
Docket Number | Cr. 3623 |
Citation | 235 Cal.App.2d 449,45 Cal.Rptr. 481 |
Court | California Court of Appeals Court of Appeals |
Parties | The PEOPLE of the State of California, Plaintiff and Respondent, v. Barry Miles SIGAL, Defendant and Appellant. |
Allan B. O'Connor, Sacramento, for defendant and appellant.
Thomas C. Lynch, Atty. Gen., by Doris H. Maier, Asst. Atty. Gen., and Raymond M. Momboisse, Deputy Atty. Gen., for plaintiff and respondent.
For the second time Barry Miles Sigal was convicted by a jury of murder in the second degree. 1 He appeals from the judgment.
The victim of the murder, Mrs. Wilma McAfee, was the manager of an apartment house in which defendant resided. He was seen conversing with Mrs. McAfee at the entrance to her apartment about 5:30 p. m., January 11, 1962. About 9:30 p. m. another tenant had a telephone conversation with Mrs. McAfee.
Mrs. McAfee was not seen on January 12. Her daughter attempted to enter her mother's apartment about 6:30 p. m. but the door was locked. She secured a passkey hidden in a basement room and entered her mother's apartment. She discovered her mother's body covered with a bedspread in a bedroom. Mrs. McAfee had been strangled from behind. There were many bruises and abrasions on her body. The autopsy surgeon testified that death had occurred some 14 to 28 hours prior to 8 p. m., January 12, as the result of asphyxiation. There were no indications that entry into the apartment had been gained by means of force. There was no evidence of a struggle in the apartment. A master key which Mrs. McAfee kept on a long chain was missing, though the chain was found near her body. Her car keys were missing and her car could not be found in the area.
On January 12 Sigal's apartment was searched. A hall light was lit, dirty dishes were found in the sink and on the dining table, the bed was not made, and clothing was found in the closet. Shortly after 6 a. m. on January 15 Sigal was in possession of a car, later identified as Mrs. McAfee's, in Jacksonville, Illinois. He told the attendant of a service station that he was driving the car to Springfield, Illinois. The McAfee car was discovered in a parking lot in Springfield, Illinois, on January 20. The vehicle was covered with 14 inches of snow, which indicated that the automobile had been in the lot since the last snowfall some four or five days before. The doors, which could not be locked without a key, were locked. There was no discernible evidence that the automobile had been 'hot wired.' Sigal's fingerprints were found on the rearview mirror and on a box of No Doz tablets.
Sigal was arrested in Seattle, Washington, on February 19, 1962. A .45 automatic was found in his hotel room. The weapon was identified as one taken from an apartment in the building where Sigal and Mrs. McAfee resided. The owner discovered that the automatic was missing on January 13. He believed that the gun was taken some time between 3:45 p. m. and midnight on January 11. Sigal had knowledge that the owner possessed such a weapon.
Prior to the first trial Dr. Walter Rapaport, a psychiatrist, was appointed to inquire into Sigal's sanity at the time of trial. He had two conversations with Sigal. In the first conversation Sigal stated that he was in Mrs. McAfee's apartment between 7 and 8 p. m. watching television. Sigal stated the last he could remember was around 8 p. m. that evening. His next realization was that he was in Missouri in Mrs. McAfee's car. In the second conversation Sigal stated that he had never admitted taking the car or that he was in the car or that the car was Mrs. McAfee's.
Sigal did not testify nor was any evidence offered on his behalf.
In his argument the district attorney told the jury that the accused's failure to take the stand and explain or deny the evidence against him permitted the jurors, during their deliberations, to draw inferences more unfavorable to the accused.
The court instructed the jury:
'In deciding whether or not to testify, the defendant may choose to rely on the state of the evidence and upon the failure, if any, of the People to prove every essential element of the charge against him, and no lack of testimony on defendant's part will supply a failure of proof by the People so as to support by itself a finding against him on any such essential element.'
Appellant contends that it was improper to receive evidence of the theft of the .45 automatic. ' (People v. Lopez, 60 Cal.2d 223, 249, 32 Cal.Rptr. 424, 439, 384 P.2d 16, 31.)
The evidence was relevant because it permitted an inference that Sigal entered the apartment with a master key before midnight the night of the murder. It also was relevant because it tended to pinpoint the time of Sigal's flight which is a factor which may be considered with the other evidence tending to connect an accused with the commission of the crime. (People v. Moore, 211 Cal.App.2d 585, 27 Cal.Rptr. 526.) Thus there was no error in its admission.
Appellant also contends that it was improper to receive the testimony of Dr. Rapaport, relating the defendant's statement, which placed him in Mrs. McAfee's apartment at 8 p. m. the night of the murder. Dr. Rapaport was appointed under the provisions of Penal Code section 1368 to inquire into Sigal's sanity prior to the first trial.
If the appointment had been made under the provisions of section 1027 of the Penal Code the testimony would have been properly received. The applicable rule of law is stated in People v. Ditson, 57 Cal.2d 415, at page 448, 20 Cal.Rptr. 165, at page 183, 369 P.2d 714, at page 732:
No case that we have found discusses the propriety of receiving the testimony of an alienist appointed under the provisions of Penal Code section 1368 but it would seem that the rules enunciated under the provisions of section 1027 would be controlling. There is no logical reason for admitting such testimony if the psychiatrist is appointed under section 1027 and excluding it if he is appointed under section 1368. If the testimony is admissible in one case, it is in the other. Only other exclusionary rules would prevent reception. On the record presented here the court properly permitted Dr. Rapaport's testimony.
Appellant urges, however, that Dr. Rapaport's testimony failed to meet the foundational requirements of Code of Civil Procedure section 2047. When Dr. Rapaport interviewed appellant, he took notes of his conversations. The notes paraphrased ap...
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