People v. Thomas, Cr. 9638

• Decision Date: 08 February 1967
• Docket Number: Cr. 9638
• Citation: 423 P.2d 233,65 Cal.2d 698,56 Cal.Rptr. 305
• Court: California Supreme Court
• Parties: , 423 P.2d 233 The PEOPLE, Plaintiff and Respondent, v. Calvin THOMAS, Defendant and Appellant. . In Bank

Page 305

56 Cal.Rptr. 305

65 Cal.2d 698, 423 P.2d 233

The PEOPLE, Plaintiff and Respondent, v. Calvin THOMAS, Defendant and Appellant.

Cr. 9638.

Supreme Court of California.

In Bank.

Feb. 8, 1967.

Rehearing Denied March 8, 1967.

Carlyle J. Mills, San Francisco, under appointment by the Supreme Court, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Norman H. Sokolow, Deputy Atty. Gen., for plaintiff and respondent.

MOSK, Justice.

This is an automatic appeal (Pen.Code, § 1239, subd. (b)) from a judgment entered pursuant to jury verdicts finding defendant guilty of arson and first degree murder, and fixing the penalty for the latter at death.

Defendant principally complains of the introduction in evidence of an incriminating statement he made to the police after warnings as to his constitutional rights which complied with People v. Dorado (1965) 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361. He contends the admonitions were inadequate under Miranda v. State of Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; but that decision does not govern the present case, which was tried prior to June 13, 1966. (People v. Rollins (1967) Cal., 56 Cal.Rptr. 293, 423 P.2d 221.

Defendant was charged by information with one count of murder and one count of arson. He entered pleas of not guilty, and the matter went to trial.

Fire department personnel testified that shortly after 11 p.m. on October 19, 1964, an explosion and fire occurred in a small bedroom in the rear of Mrs. Elizabeth Ector's house, occupied by her three-year-old son Robert. When the first fire officer arrived on the scene a few minutes later, the room had been 'totally engulfed' by fire and the heat was 'tremendous.' The officer went outside to break windows for the purpose of ventilating the house, and in so doing discovered that the window to the burning room had already been broken.

After the fire was extinguished Robert's body was found inside the room, lying against the wall underneath the window. The autopsy surgeon testified that death was due to burns and asphyxiation, and that the child 'did not die instantly, but survived for some time during the heat of the fire. * * *'

Further examination of the burned room disclosed evidence establishing that a 'Molotov cocktail' was the cause of the fire. Pieces of a broken wine bottle were found on the floor, beneath a splatter mark on the wall that faced the window. A smell of gasoline was detected inside the pieces of bottle and elsewhere in the room. The burn pattern on the walls and on the child's body was shallow and even, indicating the fire had spread rapidly. There was only slight fire damage to the wall containing the broken window. On the basis of these observations an expert arson investigator gave his opinion that a gasoline-filled bottle with a lighted wick had been hurled through the window, burst into flame when it struck the opposite wall, and engulfed the room in a sudden, deadly conflagration.

Mrs. Ector testified she had moved into the house on September 1, and defendant began living with her and her three children about a week later. Shortly thereafter, he helped her convert the small room into a bedroom for Robert and the other two children. As a result of various arguments and fights defendant moved out on October 17, two days before the fire, and went to live with his mother in the nearby house.

During the course of the day on October 19 Mrs. Ector, defendant, and several of their relatives and friends engaged in an incessant quarrel. Defendant's mother drew a knife on Mrs. Ector, but was disarmed. Defendant then called Mrs. Ector's mother a name, and Mrs. Ector hit him with a stick. He took it away from her and hit her several times with it. She threw hot water on him, and he kicked in her door. He swung at her, and she hit him with a bottle. She testified he told her if he caught her outside the house he would kill her; he said he would 'get even' with her and if he couldn't have her, no one else would enjoy her; and he said he would 'fix her face' so that no one would want to look at it.

At 6:30 or 7 p.m. Mrs. Ector left the house with her children and some friends. They returned shortly before 11 p.m. and saw defendant standing nearby with a group of teenagers. There was no further quarreling between the parties, however. Mrs. Ector took her children inside and put Robert to bed. A few minutes later she looked out of the window and saw defendant walking from his mother's house with a bottle in his hand, in the company of another man. She lay down on her bed, then heard something hit the house, followed by the screams of her companions in the living room. She rushed out and found her son's bedroom in flames.

Mrs. Ector's testimony was corroborated by one of her companions, Freddie Johnson. In particular, Mr. Johnson testified that on returning with Mrs. Ector to her house on the evening in question he saw defendant run to the rear of the building with what looked like a wine bottle in his hand.

Cora White testified that about 9 o'clock that evening she was on her way home when she saw defendant, his sister Ruby, and two other girls walking towards a service station. She caught up with them, and saw defendant was carrying a can. At the service station the can was filled with gasoline, and defendant said he was going to 'get even' with Mrs. Ector. He asked his companions to find some empty bottles for him, and a number of wine bottles were collected. The group then returned to the house of defendant's mother. Defendant placed a roasting pan on the kitchen floor, stood about eight bottles in it, filled them with gasoline, and wadded a piece of rag into the neck of each bottle. When someone shouted the police were coming, defendant hid the bottles in a trash can behind the house and covered them with a red quilted bedspread. At one point in the evening, he said he was going to throw one of the bottles ino the car in which Mrs. Ector and her companions were riding. When the latter returned, the witness heard defendant say he was going to cut the telephone wires to 'keep them from calling the police.' She then saw defendant go to the trash can and take some bottles out. He went to the back of Mrs. Ector's house with another man, and the witness heard the sound of breaking glass, followed by screams and a blaze inside the house.

Keith Epps testified that on the evening of the crimes he saw defendant and one Rance Johnson placing into a trash can some bottles filled with gasoline and corked with rags. Later he saw them go to the back of the house; he heard a 'poof' sound, and saw a fire break out. The witness then observed Rance Johnson running from the scene.

Mrs. Autry Davis, who was Mrs. Ector's mother and lived in an adjacent house, testified that on the evening in question she saw defendant picking up empty bottles from the street. After Mrs. Ector and her companions returned home, the witness saw defendant pass back and forth in front of her door. About 11 p.m. she followed him and observed him standing behind Mrs. Ector's house with another person whom she could not identify. It was her recollection that the other person handed defendant something, and defendant pulled open the screen, struck a match, lit something and threw it in the window, and a fire broke out at once. On cross-examination the witness testified that during the afternoon of that day defendant threatened Mrs. Ector, 'telling her he was going to get even with her, if he Have to kill one of her children.'

The arson investigator testified he went to the house of defendant's mother, and upon entering smelled a strong odor of gasoline. In the kitchen he found a roasting pan, behind the house he found several empty bottles, some with rags in them, and in a nearby trash can he found a red quilted bedspread; each of the foregoing objects emitted an odor of gasoline. Defendant was arrested four days later in his mother's house; the building was dark, and defendant was discovered hiding from the police under a blanket in a bedroom closet.

The defense testimony, provided by defendant and several other witnesses, amplified on the subject of the quarreling among defendant, Mrs. Ector, and their various relatives and acquaintances, and recounted the making of various alleged threats against defendant by one or more of the foregoing. Defendant and these same witnesses, however, also corroborated the evidence of the prosecution establishing that on the evening in question defendant went to the service station with his friends and bought some gasoline, collected empty bottles on the way back, filled them with gasoline and wicks in his mother's kitchen, then hid them in a trash can; that defendant said he was going to throw a fire bomb into the car of Mrs. Ector and her companions; and that there was a discussion about cutting the telephone wires to prevent them from calling the police.

Defendant in effect made a judicial confession of the crimes charged. He testified on direct examination that he and Rance Johnson went to the back of Mrs. Ector's house and 'I lit one of the Molotov cocktails, and Rance Johnson threw it through a window.' ¹ On cross-examination defendant stated he had learned how to make such fire bombs while in the service; he admitted he knew that 'If you make a Molotov cocktail and throw it against something or other, the glass will break and gas will spread,' causing 'a tremendous fire,' and that it can destroy an armored tank. He further admitted that there were no threats or provocation directed against him either when Mrs. Ector and her companions returned home at 11 p.m., or thereafter; that when the latter group had entered Mrs. Ector's house he and Rance went around to the back, carrying one of the fire bombs; and that 'I knew he was going to throw it in a window.' He testified, moreover, that he had helped Mrs. Ector...