People v. Thomas, Cr. 5201

Decision Date01 May 1951
Docket NumberCr. 5201
Citation230 P.2d 351,37 Cal.2d 74
CourtCalifornia Supreme Court

Mark M. Brawman and George A. Tebbe, Yreka, under appointment by the Supreme Court, for appellant.

Edmund G. Brown, Atty. Gen., and Doris H. Maier, Deputy Atty. Gen., for respondent.

CARTER, Justice.

Defendant, Henry Thomas, Having pleaded guilty to murder, Pen.Code, § 187, the court found the murder to be of the first degree, and imposed the death penalty. The appeal is here by operation of law. Charged with defendant, was William McCain, who pleaded not guilty. McCain was tried, found guilty, and a sentence of life imprisonment was imposed. Also charged with the same crime, and ordered held to answer at the preliminary examination was Joe Cooper, but what disposition has been made of the charge against him, if any, does not appear.

According to the evidence take when the degree and punishment were fixed, and at the preliminary hearing, Mr. and Mrs. Ainsworth were managing a grocery store near Hatfield, Siskiyou County, California, on October 20, 1950. About 5:30 in the afternoon, while the Ainsworths were present in the store, defendant and McCain entered it, McCain in the lead. Defendant ordered soft drinks. McCain drew a pistol and stated it was a holdup. Defendant also drew a pistol. Ainsworth grasped the barrel of the pistol held by McCain and in the ensuing struggle it was discharged, a bullet striking and wounding Mr. Merrill, who entered the store at that time. After McCain's gun discharged, defendant fired several shots from his pistol, two of which struck Mrs. Ainsworth, causing her death. McCain and defendant fled and were finally apprehended in Bakersfield.

Defendant urges two grounds for reversal: (1) The court erred in failing to take evidence to ascertain the penalty to be imposed. (2) The penalty should be reduced to life imprisonment under § 1260 of the Penal Code, as amended in 1949. Stats.1949, ch. 1309, § 1.

Defendant was held to answer following a preliminary examination and an information was filed against him. On December 4, 1950, he was arraigned and not having means to employ counsel, one was appointed for him Mr. Mark M. Brawman. Time to plead was set for December 6, 1950, at his counsel's request. At that time, after a brief appearance in court, counsel for defendant and McCain's counsel, and the district attorney retired to the judge's chambers where the judge said that Mr. Brawman had spoken to him in regard to the possibility of defendant avoiding the death penalty by making a 'certain' plea. The judge remarked that he had read the transcript of the preliminary hearing and that he was 'inclined' to give the 'extreme' penalty whether he pleaded guilty or not guilty. On returning to court, defendant pleaded guilty and December 11, 1950, was fixed as the time for 'pronouncing judgment,' later continued to December 14, 1950, when the court announced it would hear evidence on the degree of the offense. The district attorney called decedent's husband, Ainsworth, to the stand and he testified to the facts relating to the killing. Defendant's counsel was asked by the court if he wished to cross-examine and declined. The court then remarked: 'Step down (addressing the witness). I don't think we will need any further.' The district attorney then made the same remark, to which the court replied 'All right.' Defendant's counsel remained silent. The court then stated that it was murder of the first degree. Thereafter when asked by the court whether he had any legal cause to show why sentence should not be pronounced, defendant stood mute. The death penalty was imposed.

There is no question that the evidence is ample to establish murder of the first degree, for it was committed while attempting to commit robbery. Pen.Code, § 189. Defendant's excuse for not offering any evidence on the question of penalty is that the court's remark heretofore quoted foreclosed such offer. That remark may not necessarily be so construed, and the court, as seen, did not only take the evidence on the subject consisting of Ainsworth's testimony, but also the evidence given at the preliminary hearing which went into the details of the crime from the planning of it to the flight. Moreover, defendant stood mute when asked if he had any legal cause to show why sentence should not be pronounced and it was not until then that the death sentence was 'pronounced.' The rule is stated: 'In determining the degree of an offense and the punishment to be imposed, after a plea of guilty, it is the duty of the trial court to consider matters in aggravation as well as in mitigation of the offense. The legal significance of established facts may well constitute an element of which cognizance is taken in the exercise of judicial discretion. A hearing for the determination of the degree of an offense and the punishment therefor is not a trial in the full technical sense, and is not governed by the same strict rules of procedure as a trial. As stated in People v. Williams, 14 Cal.2d 532, 536, 95 P.2d 456, 458 (quoting from People v. Popescue, 345 Ill. 142, 153, 158, 177 N.E. 739, 77 A.L.R. 1199) it is 'simply a statutory hearing, by which the court examined witnesses to determine whether any facts existed to aggravate or mitigate the punishment,' and...

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27 cases
  • People v. Lucero
    • United States
    • California Supreme Court
    • March 28, 1988
    ...v. Carmen (1954) 43 Cal.2d 342, 351, 273 P.2d 571; People v. Dessauer (1952) 38 Cal.2d 547, 555, 241 P.2d 238; People v. Thomas (1951) 37 Cal.2d 74, 77-78, 230 P.2d 351.) Consistent with our explicit statutory power, I would overrule the portions of the foregoing decisions that declare this......
  • People v. Holt
    • United States
    • California Supreme Court
    • November 26, 1984
    ...People v. Carmen (1954) 43 Cal.2d 342, 351, 273 P.2d 521; People v. Dessauer (1952) 38 Cal.2d 547, 555, 241 P.2d 238; People v. Thomas (1951) 37 Cal.2d 74, 77, 230 P.2d 351.) I would overrule the portions of the foregoing opinions that declare this court may not reduce punishment imposed in......
  • People v. Carmen
    • United States
    • California Supreme Court
    • August 17, 1954
    ...asserts that the penalty imposed should be reduced. That cannot be done, however, in the absence of prejudicial error. People v, Thomas, 37 Cal.2d 74, 230 P.2d 351; People v. Odle, 37 Cal.2d 52, 230 P.2d 345. Here there is The application to produce additional evidence is denied. The judgme......
  • Anderson, In re
    • United States
    • California Supreme Court
    • November 18, 1968
    ...P.2d 1016; People v. Dessauer, 38 Cal.2d 547, 555, 241 P.2d 238, cert. den. 344 U.S. 858, 73 S.Ct. 96, 97 L.Ed. 666; People v. Thomas, 37 Cal.2d 74, 77--78, 230 P.2d 351; People v. Odle, 37 Cal.2d 52, 58, 230 P.2d 345; People v. Danielly, 33 Cal.2d 362, 383, 202 P.2d 18, cert. den. 337 U.S.......
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