People v. Tahl, Cr. 9960

• Decision Date: 08 February 1967
• Docket Number: Cr. 9960
• Court: California Supreme Court
• Parties: , 423 P.2d 246 The PEOPLE, Plaintiff and Respondent, v. William Albert TAHL, Defendant and Appellant. In Bank

Page 318

56 Cal.Rptr. 318

65 Cal.2d 719, 423 P.2d 246

The PEOPLE, Plaintiff and Respondent, v. William Albert TAHL, Defendant and Appellant.

Cr. 9960.

Supreme Court of California,

In Bank.

Feb. 8, 1967.

Rehearing Denied April 5, 1967.

Thomas W. Smith III, Oceanside, under appointment by the Supreme Court, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Ronald M. George, Deputy Atty. Gen., for plaintiff and respondent.

McCOMB, Associate Justice.

This is an automatic appela (Pen.Code, § 1239, subd. (b)) from a judgment, after trial before a jury, on verdicts finding defendant guilty of murder in the first degree and imposing the death penalty.

Facts: Defendant pleaded guilty to (a) two counts of murder (Pen.Code, § 187), (b) attempt to commit robbery (Pen.Code, §§ 211, 664), (c) grand theft (Pen.Code, § 487, subd. 3), and (d) rape (Pen.Code, § 261, subd. 4).

It was stipulated by counsel, agreed to by defendant, and found by the trial court, that the degree of the offenses charged in counts I and II was murder in the first degree.

After a jury trial on the penalty phase of the case, punishment was fixed at death on each of the two counts of murder. Defendant was sentenced to death on each of those counts and to state prison for the term prescribed by law on the three remaining counts, execution of the sentences on the latter counts to be stayed pending completion of service of sentence on the first two counts, the stay then to become permanent. Defendant's trial began on February 1, 1966.

Questions: First. Were the dying declarations of Victor and Bernice Bowen properly received in evidence?

Yes. Defendant contends (a) that the hearsay declarations of Victor and Bernice Bowen were improperly received in evidence, because there was no foundation that the declarations were made with a sense of impending death, and (b) that, apart from the question of proper foundation, the fact that defendant's guilt had already been established by his plea rendered the declarations inadmissible at the penalty trial. These contentions are without merit.

(a) Pursuant to section 1870, subdivision 4, of the Code of Civil Procedure, 'in criminal actions, the act or declaration of a dying person, made under a sense of impending death, respecting the cause of his death,' is admissible in evidence as an exception to the general rule excluding hearsay statements from evidence.

The principal condition for the admission of a dying declaration is that the declaration be made 'under a sense of impending death.' As a foundation for the admission of the declaration, this condition must be determined preliminarily by the trial court (People v. Singh, 182 Cal. 457, 476(4)), 188 P. 987; and unless there has been an apparent abuse of discretion in that regard, the ruling of the trial court will not be disturbed on appeal (People v. Pollock, 31 Cal.App.2d 747, 754(2), 89 P.2d 128).

As stated in People v. Gonzales, 87 Cal.App.2d 867, 878(6--7), 198 P.2d 81, 89: 'To be admissible in evidence as dying declarations, the statements of the decedent must have been made at a time when he had abandoned all hope of life so that he believed that death inevitably must follow. This sense of impending death may be shown in any satisfactory mode, by the express language of the declarant, or be inspired from his evident danger, or the opinions of medical or other attendants stated to him, or from his conduct, or other circumstances in the case, all of which are resorted to in order to ascertain the state of the declarant's mind.'

In the present case, Officer Bowling testified that as soon as he arrived at the Mission Bay Yacht Club, to which he had been summoned, he saw Victor Bowen lying on the steps of the caretaker's cottage. Officer Bowling observed that Mr. Bowen was holding his right side. There was blood on Mr. Bowen's right hand, and his intestines were protruding from a wound in his right side. Shortly thereafter, Officer Bowling questioned Mr. Bowen.

On further direct examination, Officer Bowling was asked, 'And I would ask before going into that conversation (between Officer Bowling and Mr. Bowen), Officer, whether in the course of that conversation, there was any reference to his state of mind with respect to whether he was going to die or not.'

Defendant objected to this question, 'as first, calling for a conclusion of the officer; second, it calls for a hearsay statement and goes to an issue that is no longer an issue at this trial. We're on the penalty phase. I don't see where the exception to the hearsay rule that would allow such a declaration in applies in this situation.'

The trial court overruled defendant's objection, noting that the district attorney was 'entitled to lay a foundation, and * * * entitled to the testimony.'

Defendant reiterated his objection, and after argument the objection was again overruled. Further objections by defense counsel to evidence of dying declarations were overruled by the trial court.

Officer Bowling was then permitted to answer the pending question and did so in the affirmative. He related that when he first arrived at the scene, Mr. Bowen said, 'We are dying, help us.' He testified that there were several subsequent 'references to the same subject matter.' At this point, the trial court ruled that sufficient foundation had been laid for Mr. Bowen's dying declarations to be admitted in evidence.

Officer Bowling related the following conversation he had with Mr. Bowen: 'I asked Mr. Bowen who did this. He said, 'Art Stahl.' I asked him again. He replied, 'Art. Stahl.' And I said, 'Is he driving a car?' He said, 'A truck.' And I said, 'What type?' He said, 'A Ford pickup.' * * * When I finished questioning him he says, 'Please help us, we're dying. Check my wife."

Officer Bowling testified that after relaying the above information to police headquarters, he asked Mr. Bowen for a description of 'Art Stahl' and that Mr. Bowen said, 'Art Stahl is an Eskimo. He works for me.'

Later, during the drive in the ambulance to the hospital, Officer Yaptangco asked Mr. Bowen who had shot him and what kind of vehicle that person was driving. Mr. Bowen replied that the person was 'Art Tahl,' and that he was driving a dark Ford 'pickup.' Asked whether defendant was 'white,' Mr. Bowen said, 'No, he's an Alaskan.' Officers Bowling and Yaptangco inquired, 'Do you mean an Eskimo?' and Mr. Bowen replied, 'Yes, an Eskimo. He works for me. Please hurry, we're dying. I'm breathing my last breath.' Asked why defendant had shot him, Mr. Bowen said, 'He wanted the keys to the safe.'

Shortly after Officer Bowling's arrival at the yacht club, he heard a moaning sound coming from inside the cottage and, upon investigating, he found Bernice Bowen, Mr. Bowen's wife, lying on her back on a bed. There was a wound in her left side, from which her intestines were protruding. The sheet upon which she was lying was stained with blood.

During the drive to the hospital, which took only a few minutes, Mrs. Bowen continuously said,' Please hurry, I'm dying.' Asked who had shot her, she replied, 'Art Stahl.' When Officer Yaptangco inquired how the name was spelled, she 'said she thought it was S-t-a-h-l, or T-a-l-l, somewhere like that.'

The Bowens were both 'in obvious pain.' Their condition was so serious that the officers were unable to administer any emergency medical aid; there was 'no quick action that * * * (they) could take.' The Bowens were taken immediately to the emergency room of the hospital.

Operations were performed on each of the Bowens, lasting for approximately six hours. The two surgeons who performed the operations testified that the Bowens were near death at the time of their arrival at the hospital and that it was a miracle they survived for several days, as they did.

The above evidence was clearly sufficient to support the trial court's finding that the declarations of Victor and Bernice Bowen were made with a sense of impending death. (See People v. Hoffman 195 Cal. 295, 306--308, 232 P. 974; People v. Cord, 157 Cal. 562, 566, 108 P. 511.)

It was the Bowens' belief that they were about to die that was significant in determining whether their statements were made with a sense of impending death. That they lingered on for several days before dying was immaterial in this regard. (People v. Cord, supra, 157 Cal. 562, 566--567, 108 P. 511.)

Defendant emphasizes that the Bowens knew they were being taken to the hospital and that they both requested that the officers 'please hurry.' Defendant contends that this phrase indicated that the Bowens had hopes of recovery and that their statements were therefore not made with a sense of impending death.

The request, 'Please hurry,' was, under the circumstances, no more than a plea by each spouse that death or a pain-killing drug mercifully relieve both of them from the unbearable pain which they were suffering and that their remaining hours be made as comfortable as possible.

In People v. Cord, supra, 157 Cal. 562, 566, 108 P. 511, 513, it was stated: 'The effect of the statements by (the dying victim) as to his mental condition was not destroyed by his remark, after giving the statement, that 'We don't know what the future has.' This was a mere statement of an obvious conclusion which any person might make under any circumstances. It did not necessarily indicate that he thereby meant to qualify the statement that he was without hope of recovery.'

(b) As indicated above, defendant contends that the fact that his guilt had already been established by his plea rendered the dying declarations inadmissible at the penalty trial.

Section 190.1 of the Penal Code provides, in part: 'Evidence may be presented at the further proceedings on the issue of penalty, of the circumstances surrounding the crime * * * and of any facts in aggravation or mitigation of the penalty.'

In People v. Jones, 52 Cal.2d 636,...