People v. Sutic

• Decision Date: 22 September 1953
• Docket Number: Cr. 5430
• Citation: 41 Cal.2d 483,261 P.2d 241
• Court: California Supreme Court
• Parties: PEOPLE v. SUTIC.

Page 241

261 P.2d 241

41 Cal.2d 483

PEOPLE v. SUTIC.

Cr. 5430.

Supreme Court of California, in Bank.

Sept. 22, 1953.

Willens & Boscoe, Richard J. Gibson and Donald D. Boscoe, Stockton, for appellant.

Edmund G. Brown, Atty. Gen., Doris H. Maier, Deputy Atty. Gen., Chester E. Watson, Dist. Atty., and Richard E. Johnson, Deputy Dist. Atty., Stockton, for respondent.

SPENCE, Justice.

Defendant was charged by information whth the murder of Lading Borellano, Jr. He pleaded not guilty. At the trial he neither testified nor produced any witnesses. The jury returned a verdict of first degree murder, without recommendation, based wholly on circumstantial evidence. Motions for a new trial and for a reduction of the verdict to second degree murder were denied. Judgment was thereafter pronounced and the death penalty was imposed. The cause comes to this court upon an automatic appeal. Pen.Code, § 1239, subd. (b).

As grounds for reversal, defendant argues these points: (1) insufficiency of the evidence to sustain the verdict; (2) error in the trial court's refusal to reduce the verdict; (3) error in the trial court's failure to instruct on the crime of manslaughter; (4) misconduct of the jury; and (5) prejudicial misconduct of the deputy district attorney arising from two aspects the introduction of certain exhibits in evidence and his closing remarks in agrument to the jury. An examination of the record compels the conclusion that defendant's agruments are without merit, and the judgment of conviction must be affirmed.

Defendant lived about one-third of a mile from the Borellano family near the city of Manteca. He raised chickens on part of his land, and he sold eggs to the Borellanos. They had been on friendly terms for several months, and defendant was a frequent visitor in the Borellano home. However, some few weeks before the date of the homicide, October 11, 1952, a dispute arose between them over a $12.50 egg bill, which the Borellanos refused to pay because of an alleged overcharge and the further claim that defendant had tried to poison their dog, with the result that they had incurred a $9 veterinary bill. According to Mrs. Borellano, defendant came to her home and quarreled with her over the bill, using 'harsh words.' One of the neighbors testified that about October 1 defendant expressed his intention of calling on the Borellanos to collect the bill, and when it was suggested that they might 'gang up' on him, defendant replied: 'I have a gun.' Another neighbor testified that defendant, in discussing about that same time the unpaid egg bill, seemed 'to get very mad, very red in the fact' and said that 'he was going to get Borellano; he was going to smash him in the face; he was going to kill him.'

On October 11, 1952, about 7:45 p.m. Mr. Borellano and his nine-year old son, the deceased, were driving home from Stockton. As they approached a county lane intersection about one-third of a mile from their home. Mr. Borellano observed defendant sitting in his car, which was parked on the left side of the road facing the Borellanos. It was then about 8:10 p. m. The headlights of both cars were burning, so that Mr. Borellano, traveling about 25 miles per hour, recognized defendant and his car, which was distinctively painted a cream-yellow body with lighter-colored fenders. Within a few minutes the Borellanos reached home. Mr. Borellano put his car in the garage, and then he and his son prepared for bed. Mr. and Mrs. Borellano occupied the front bedroom, an enclosed porch with two large windows facing the roadway. The children slept in an adjoining room, the deceased occupying the upper bunk of a double bunk bed, which was next to the partition separating the parents' sleeping quarters from the children's bedroom. Mrs. Borellano had already retired, and Mr. Borellano extinguished the lights in the house at 8:25 p. m.

The Borellano home was a small threebedroom house set back from the roadway some 50 feet. A sparse hedge approximately 5 feet high extended along the shoulder of the road in front of the house. The distance between the house and the hedge was about 34 feet, and a car could drive alongside the hedge. About 8:30 p. m., as Mr. and Mrs. Borellano were lying in bed but not asleep, they heard a car stop in front of the house. Mr. Borellano raised up in bed, pulled aside the curtains of the window directly overhead, and saw a car parked with the headlights burning. He recognized the car from its color as belonging to defendant, and he called to his wife: 'John's (defendant) there. I don't know what is he want. How came he park there.' At that moment of Mr. Borellano's parting of the curtains as he looked out the window, two shots were fired in rapid succession, and Mr. Borellano hollored 'John's shooting.' Defendant's car then left the scene. The first bullet struck Mr. Borellano in his left arm; the second bullet, traveling through the front bedroom into the children's room, lodged in the head of the deceased as he slept in his upper bunk, causing his death a few hours later in the hospital where he was taken for treatment.

An attendant at a nearby service station testified that defendant drove his car into the station somewhere around 8:30 p. m.; that he turned in 'rather fast,' nearly hitting a gas pump; that he was a regular customer but had never before come so late in the evening, as he always said that he was afraid to drive after dark; that he purchased some gasoline and left a flashlight to be repaired; that he then went to the lunch counter on the premises for some coffee, and while sitting there on a stool 'sideways' instead of 'straight as anybody else would,' he kept a constant watch on the corner intersection; and that he stayed there about 15 or 20 minutes. The proprietor of the service station corroborated this account of defendant's visit and the approximate time thereof. Defendant drove out of the station in the direction of his home.

Meanwhile Mrs. Borellano had reported the shooting to the sheriff's office and about 9:00 p. m. two deputies arrived at her home. They noted that the front wall of plywood sheeting had been penetrated by two bullets, one hole being below the casing of the window about 4 feet above the ground and the other hole above the casing. One bullet from a .38 caliber gun was found at the end of the bedspread in the Borellanos' front bedroom; the second bullet was removed from the skull of the deceased at the time of the autopsy the next day. Mrs. Borellano told the officers that defendant was a possible assailant, and the officers then proceeded to his home, about one-third of a mile away, arriving there at approximately 10:40 p. m Defendant lived in a small two-room cabin. As the officers cetered the driveway of his property, a light which was burning in the cabin was extinguished. Leaving the lights of their patrol car burning, the officers knocked on the cabin door and took turns calling out that they were 'sheriff's officers' and 'would like to talk' to defendant. The officers so continued for some 20 minutes but defendant did not answer. Defendant's arrest was finally accomplshed as he emerged from the doorway after the officers had thrown a can of tear gas through a hole broken in the front door. When the officers asked the reason for his failure to answer their first calls to him, defendant said that he was asleep and hard of hearing; and that then when their noise finally did awaken him, he thought that he was being taunted by hoodlums in the neighborhood. He 'cussed' the officers for using tear gas and when asked if he had a gun, defendant replied that he did not but 'if I had one, I would have shot it out with you.' Defendant stated that he had had two guns but they were stolen, one in July, 1952, and the other the preceding December, both Smith and Wesson .38 type. In defendant's cabin and likewise in the trunk of his car, which was in the garage, there were found boxes containing .38 shells. Defendant admitted that he knew the Borellanos, and he made some derogatory remarks about the family. He further added that their dog was 'killing my chickens'; that he had given the dog 'some sleeping pills, made him sick' but did not poison him. When asked as to his whereabouts that evening, defendant stated that he had been home since 6:00 p. m. One of the officers noticed that the radiator of defendant's car was still warm. When questioned about this, defendant stated that he had gone into the yard to feed his dogs about 9:30 or 10:00 p. m., and he had turned on his car lights to see and had run his motor to conserve the battery.

In a statement to a police officer a few days later, defendant gave this account of his activities on October 11: that after finishing work about 4:30 p. m. he drove to a bar for some drinks, continued to a friend's house for more drinks, went to the service station where he bought gasoline and had some coffee, reached home at 7:00 p. m., and did not go out again that evening. Defendant repeated that his two guns had been stolen, admitted that he had shells in his cabin but denied knowledge of any in his car. A witness for the prosecution testified that defendant in May or June, 1952, showed her a gun which he was carrying in his pocket, and that he then said that he had another gun in his cabin. Upon the testimony of the proprietor of a sporting goods store in Portland, it was established that defendant had there bought on April 18, 1951, two .38 Smith and Wesson revolvers and had signed the required police records covering such purchase. A state criminologist identified the two bullets which respectively struck Mr. Borellano and his son, the deceased, as fired from a .38 caliber Smith and Wesson revolver. No gun was introduced in evidence. The doctor who performed the autopsy testified that his examination of the deceased's head disclosed the bullet in evidence, and that the death was due to the bullet's laceration of...