People v. Southack

Decision Date25 September 1952
Docket NumberCr. 5321
Citation248 P.2d 12,39 Cal.2d 578
CourtCalifornia Supreme Court

Bertram H. Ross, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., and Stanford D. Herlick, Deputy Atty. Gen., for respondent.

SCHAUER, Justice.

Defendant was charged with murder, a jury found him guilty of manslaughter, and he appeals from the resulting judgment of conviction and from an order denying his motion for new trial. Defendant contends (1) that the giving of instructions concerning confessions and admissions was prejudicial error because there was no evidence that defendant made any confession or admission; (2) that if an extrajudicial admission of a party defendant is used as a prior self-contradictory statement to impeach him, it cannot also be considered as an admission evidencing the truth of the fact admitted; (3) that defendant was prejudiced by misconduct of the prosecuting attorney on cross-examination of defendant and his daughter; (4) that the trial court erroneously determined that as a matter of law defendant was not eligible for probation. We have concluded that on the record only the fourth of these contentions has merit.

The Evidence

The victim of the homicide, Ellsworth O'Donnell, was a former son-in-law of defendant. Ellsworth's former wife, Billie O'Donnell, and the O'Donnells' infant daughter resided with Billie's parents, Mr. and Mrs. Southack, during the period which is relevant here. The killing occurred on Sunday, May 15, 1951.

In March of 1950 Ellsworth had come into the Southack home, argued with Billie, put his hands at her throat, and said, 'I should kill you * * * I should kill the whole family.' In April of 1950 Ellsworth, after having taken his child out for the afternoon, went to the Southack home with liquor on his breath. He argued with his former wife and with defendant; defendant ordered him to leave and started to telephone the police; Ellsworth ripped the telephone from the wall and broke a window and defendant's television set. As a result of this altercation Ellsworth was arrested on defendant's complaint. Defendant testified that the arresting officers told him at that time that 'I would have a right to protect my home even if I had to shoot him.'

On the afternoon of the killing Ellsworth made three visits to the Southack home. On the first two occasions he was alone. Billie went into the front yard and talked with him. Defendant heard him arguing with Billie about his right to see the child, cursing her, saw him kick over a garbage can on the first occasion and heard him say, on the second, 'It's a good thing you came out or I'd have come in there and killed the whole damn bunch of you.' On each of these two occasions Ellsworth left when Billie returned to the house and placed a call to the sheriff's office.

On his third visit of the afternoon Ellsworth was accompanied by his father. The father remained seated in his car in front of the Southack home. Ellsworth came to the front door and knocked. Billie said, 'you had better go away from here because I am calling the police.' Ellsworth called to his father, 'They won't answer me. I will kick the God damned door in.' He then kicked or struck the door violently. Defendant telephoned the sheriff's office and Ellsworth went to a neighbor's residence and also telephoned the sheriff's office. Ellsworth waited in the Southacks' front yard until two deputy sheriffs came. Billie again came out of the house and joined Ellsworth and his father in conversation with the deputies. Defendant came from the house and joined in the conversation. According to the deputies, defendant in a loud voice said that Ellsworth could not come into the house; that if he did defendant would shoot him; but that the elder Mr. O'Donnell was welcome. At the officers' request defendant then returned to the house.

After further conversation with Ellsworth one of the officers went into the house and talked with defendant. This officer testified that defendant again said that if Ellsworth came into the house he would shoot him, and the officer replied that if defendant did so he would be charged with murder. The officers prepared to leave. Billie was on the front porch and Ellsworth was standing by the steps talking with her. Defendant opened the front door; Ellsworth stated that he would return at 8 o'clock with a doctor to examine the child; defendant replied that the doctor could come into the house but that Ellsworth could not and if he attempted to do so defendant would shoot him. After further argument defendant cursed Ellsworth, said, 'I could shoot you without batting an eye,' and fatally shot Ellsworth. Defendant rushed from the house crying, 'Oh my God, I did it, I did it.' The deputy sheriffs immediately took defendant into custody.

The gun with which Ellsworth was shot was a twelve-gauge shotgun with a 'hair trigger.' Defendant testified that when Ellsworth came to the house earlier in the day he had loaded the gun and it had discharged accidentally; that when Ellsworth returned to the house for the third time he reloaded it in case he should need it to protect himself; that when he went to the doorway the daughter, Billie, was standing in it; and that he did not fire the gun at Ellsworth but that 'Something hit me to the left side; I am blind on that side. I do not know what it was,' and 'the gun went off of its own free will.' The daughter testified that she 'bumped into' her father. Defendant and others testified that defendant did not threaten to shoot Ellsworth or curse him. Billie testified that the curse attributed to defendant by the prosecution was uttered by Ellsworth, who also said, 'come on out and fight like a man.'

The People introduced testimony of a ballistics expert who had experimented with the shotgun. Such evidence tends to show that it was most unlikely that the gun could be accidentally discharged as a result of a person 'bumping into' defendant unless the gun were cocked and defendant's finger were on the trigger.

The above summarized evidence is sufficient to support a finding of manslaughter, either voluntary in 'heat of passion', (Pen.Code, § 192, subd. 1) or involuntary. The involuntary manslaughter might be 'in the commission of an unlawful act, not amounting to felony' (Pen.Code, § 192, subd. 2), for it could be found that defendant unlawfully exhibited the gun in an angry manner, a misdemeanor (Pen.Code § 417), or it might be 'in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection' (Pen.Code, § 192, subd. 2), for it could be found that defendant was simply holding the gun but that he was negligent in so doing. (See People v. McGee (1947), 31 Cal.2d 229, 238, 187 P.2d 706; People v. Carmen (1951), 36 Cal.2d 768, 774, 228 P.2d 281.)

Instructions as to Confessions and Admissions

Defendant does not urge that the instructions as to confessions and admissions are erroneous in substance, but rather he argues that no instructions whatsoever on the subject should have been given because, he says, there was no evidence of any confession or admission. In this defendant is mistaken. As previously stated, there is testimony tending to show that immediately after Ellsworth was shot by a gun which defendant was pointing at him, defendant said, 'Oh my God, I did it, I did it.' The statement may be construed to be an admission, and it was proper to instruct the jury to view with caution testimony of oral admissions or confessions of defendant (Code Civ.Proc., § 2061, subd. 4); indeed, it would have been improper to refuse an instruction to that effect.

Other instructions to which defendant objects told the jury that they could not consider a confession if they found that it was involuntary and that a confession was not voluntary if it was obtained by violence, threats, or promise of immunity by the police. There is no evidence whatsoever that defendant's declaration, 'I did it,' was improperly induced by the police and no evidence of any other statement which could be construed to be a confession. Therefore, the instructions as to confessions had no application to the evidence. However, defendant has not shown that, upon the record here, the giving of the abstractly correct instruction could have prejudiced him.

Use of Prior Oral Admission to Impeach a Party Witness

Immediately after the shooting defendant was taken to a sheriff's substation and a statement was taken from him. This statement was not put in evidence but portions of it were used in an attempt to impeach defendant on cross-examination. Defendant testified that in the course of the statement he had admitted that the gun from which the fatal shot was fired was his gun. He now asserts that, under the instructions concerning admissions, the jury might have mistakenly considered the statement as proof of the fact admitted. Defendant's argument in this connection is based upon his mistaken assumption that a prior statement of a party which is both an admission and an impeaching contradictory statement, if it is used to impeach the party-witness, cannot also be evidence which tends to prove the fact admitted. This is not the law. Such a statement can be used for either or both purposes. (Bonebrake v. McCormick (1950), 35 Cal.2d 16, 18-19, 215 P.2d 728.)

Misconduct of Prosecuting Attorney

Defendant first complains of a line of questions which were asked him on cross-examination and of which the following are illustrative:

'Q. (by Mr. Finnerty, deputy district attorney). Now, at the time the gun went off in the doorway * * * you did not fire that gun to defend yourself, did you? A. No, I did not fire the gun at all.

'Q. Well, then, your answer is you didn't fire it to defend yourself? A. I didn't fire the gun.

'Q. And at the time the gun went off you weren't trying to protect yourself, your daughter, your...

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