People v. Theriot
| Citation | 60 Cal.Rptr. 279,252 Cal.App.2d 222 |
| Decision Date | 30 June 1967 |
| Docket Number | Cr. 5516 |
| Court | California Court of Appeals |
| Parties | PEOPLE of the State of California, Plaintiff and Respondent, v. Felton U. THERIOT, Defendant and Appellant. |
Molly H. Minudri, San Francisco, for defendant and appellant.
Thomas C. Lynch, Atty. Gen., John T. Murphy, Robert S. Shuken, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.
Defendant has appealed, through separate notices of appeal filed individually and by his attorney, from a judgment sentencing him to life imprisonment following his conviction by the court of murder in the first degree. (Pen.Code, § 187, 190.)
The defendant, following his indictment for the murder of his wife, entered pleas of not guilty and not guilty by reason of insanity, and the matter was regularly set for trial before a jury. At the conclusion of the seventh day of the trial, the defendant requested and secured a week's continuance to study the admissibility of, and the possible effect on expert testimony of, a document written by the defendant some months before the uxoricide. When the trial reconvened the defendant waived further trial by jury. His waiver was concurred in by the prosecution and accepted by the judge, who, after further trial, determined the case on the merits, fixed the degree, and, pursuant to stipulation entered into in open court, determined the issues of insanity and penalty; the former adversely, and the latter favorably, to the defendant.
On this appeal defendant's trial attorneys filed a brief in which it is contended (1) that the evidence shows as a matter of law that the defendant was in a mental state where he could not form the intent to commit first degree murder or deliberate and premeditate that crime; (2) that he was so intoxicated that he did not have the mental state which was required for malice aforethought or premeditation; and (3) that the trial court erred in failing to exclude statements taken from the defendant following his arrest because he was not properly advised of his constitutional rights. Following substitution of attorneys, a supplemental brief was filed on his behalf in which it is contended that the trial court erred in applying the law given to medical witnesses as to deliberation and premeditation, and in not accepting the doctrine of diminished capacity in setting the degree of guilt of the defendant. This court is requested to reduce the offense to voluntary manslaughter.
A review of these questions reveals that there was no error in the admission of evidence of defendant's statements; that the evidence is sufficient to sustain the trial court's implied finding that defendant's mental capacity was not significantly impaired by intoxication; that the evidence is sufficient to sustain the trial court's implied finding that defendant had sufficient mental capacity to entertain the requisite malice aforethought, intent, deliberation and premeditation for the offense of which he was convicted; and that the trial court was cognizant of, and applied, the proper legal criteria in questioning the medical witnesses and in determining the degree of guilt of the defendant.
On Sunday morning, January 24, 1965, Corning T. McKennee, a student at the University of California, Berkeley, was working on an experiment in the Life Sciences Building ('LSB') 1 on the Berkeley Campus. He had arrived shortly after 9 a.m., left to get some materials for his experiment, and returned to find that Gladys (Pat) Theriot had arrived in his absence. Mrs. Theriot was a laboratory technician, and on that morning was doing routine laboratory work.
McKennee and Mrs. Theriot exchanged greetings, and McKennee sat down at his desk to work. While seated he could not observe Mrs. Theriot, because there was a partition in the room. A few minutes later there was a knock at the locked laboratory door. McKennee got up and opened the door. The defendant entered, exchanged greetings with McKennee, and walked back, around the partition, to where his wife was working. McKennee testified that 'there seemed to be some argument but (he) didn't hear any words.' After approximately a minute, the defendant started to leave. As he was leaving, McKennee asked if he was Pat's husband, and the defendant nodded affirmatively.
A few minutes later there was another knock at the door. McKennee again opened the laboratory door for the defendant and returned to his desk. McKennee heard something that sounded like a 'muffled yell' from Mrs. Theriot and also heard what he thought were four shots. 2 He ran around the partition and saw the defendant standing over his wife's body, with a gun in his hand. The defendant put his gun away as he was moving toward McKennee, brushed past him, and went out the door.
On cross-examination, McKennee testified that the defendant had a peculiar look in his eyes after the killing, that he did not think he smelled alcohol on the defendant's breath, and that all he could smell was gun power. He could not recall whether the defendant had staggered, but he had glimpsed the defendant's walking and did not notice anything unusual about it.
The autopsy determined that Mrs. Theriot died as a result of multiple gunshot wounds in the head, neck, chest, and abdomen. Five slugs were found in the laboratory and another was removed from the victim's body.
Defendant was arrested shortly after 11 a.m. on the same day following an automobile accident near Los Gatos. The circumstances concerning his arrest are set forth in connection with the discussion of the issues.
Defendant testified that he and his wife were married in May 1944, while defendant was in the Army. While he was serving overseas, he learned that his wife had been unfaithful to him. On his return home to Baton Rouge, Louisiana, he had a 'big hassle' with his wife about her unfaithfulness, and about her spending money and bonds he had sent home. He filed suit for divorce, and left for Chicago to attend the 'Chicago Laboratory of Technology.' He testified that, because of family urging, he reconciled with his wife at Christmastime of 1946.
In 1947, the defendant and his family moved to Oakland, where defendant was employed by Railway Express Agency from 1947 to 1949, by the United States Post Office from 1949 to 1958, and by the Department of Motor Vehicles from 1958 to the date of the offense. During this time defendant purchased a lot in the Berkeley hills, and, with the help of friends, built his own home. He and his wife had two boys, one born in 1953, and the other born in 1948. Mrs. Theriot worked both before and after her children were born, and in 1957 she started working at the University. At the time of the incident, Mrs. Theriot was earning $683 per month, and the defendant was earning $590 per month. During this period the defendant served on the executive board of the Dad's Club, and on the council of a local Boy Scout troop.
Defendant testified that he first became aware that his wife was involved with another man in December of 1963. One night that month he was returning home with his wife and a mutual friend when his car ran out of gas. The defendant left the car, walked to the friend's house to get the latter's car, returned, drove the friend home, and then took his wife to their home. He estimated that it took him over an hour to get the other car and return to where his own car was parked. He testified that on this evening his wife refused to have sexual intercourse with him for the first time.
Sometime in 1963, the defendant 'got information' about his wife's relationship with this friend. He then visited an attorney for the purpose of obtaining a divorce. The attorney counseled the defendant in an effort to avoid the divorce. The defendant persuaded his wife to visit her doctor, as advised by the attorney. The defendant testified that his wife complied, for a time, and that their marital situation improved for a short period.
In April of 1964, defendant testified that he confronted his wife and this friend with the fact that he was aware of their acts. Defendant also testified that, on another occasion, he inadvertently picked up the extension phone, and overheard his wife making a date with the friend.
He interrupted to tell the friend that his wife was not going to meet him, and his wife 'clucked me across the head with the telephone.' The defendant then left his home and went to his mother's house. He testified that the friend used to visit his home daily, and telephoned his home every morning at seven.
Defendant testified that he took his wife and children to Santa Cruz for the July 4th weekend. 3 When he returned to work after the holiday weekend, he was confronted by a fellow employee who asked about an article in the paper reporting that the defendant's wife had filed for a divorce. The defendant testified that this was the first time he had heard of the divorce, and he visited his wife at 'LSB' to ask why she 'didn't have the gumption to discuss' the divorce with him.
From July through November, the defendant lived with his wife. One day in August 1964, appellant twice visited 'LSB' to look for his wife. He finally left a note for her. That evening he questioned his wife about where she had been during the day. When she replied that she had been at work the defendant told her about his visits, and 'slapped her out of the chair in front of my two sons.' Defendant testified that he 'started wondering what was the matter with me or why would I do this in the presence of my two sons.'
On another occasion in August, the defendant testified that his wife did not come home until 5 or 6 a.m., and they started arguing. He said that his wife called the police, he told them what the The defendant testified that his...
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