People v. Tolbert

• Decision Date: 15 April 1969
• Docket Number: Cr. 10681
• Parties: , 452 P.2d 661 The PEOPLE, Plaintiff and Respondent, v. Gus TOLBERT, Defendant and Appellant.
• Court: California Supreme Court

Page 445

76 Cal.Rptr. 445

70 Cal.2d 790, 452 P.2d 661

The PEOPLE, Plaintiff and Respondent, v. Gus TOLBERT, Defendant and Appellant.

Cr. 10681.

Supreme Court of California,

In Bank.

April 15, 1969.

Roger S. Hanson, Los Angeles, under appointment by the Supreme Court, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Philip C. Griffin, Deputy Atty. Gen., for plaintiff and respondent.

McCOMB, Justice.

A jury found defendant guilty of kidnaping Fannie Ryan (Pen.Code, § 207) and first degree murder of Akie Sterling (Pen.Code, §§ 187, 189). It fixed the penalty for murder at death. Motions for a new trial and for reduction of the penalty were denied. This appeal is automatic. (Pen.Code, § 1239, subd. (b).)

Facts: On April 21, 1966, about 1:30 in the morning Fannie Ryan was returning home from work and got off a bus at the corner of Van Ness and Florence in Los Angeles. She noticed defendant, who was in a dark green pickup truck with gardening equipment on it, at the intersection watching her. She had never seen him before, and continued walking down Van Ness toward her house. Defendant drove down the street past her, returned at the corner of the second block, and parked around the corner. As she neared the corner, defendant approached her with a shotgun or rifle in his hands and told her to walk around the corner with him. He told her not to scream or he would kill her. She was frightened and walked around the corner with him. About half way down the block, having decided that he probably would kill her anyway and that she might as well try to get away then, she jerked away from him. He cocked the rifle at her, and she threw her hands over her face and started screaming. He struck her with the rifle, crushing her left elbow, and ran off. In about two weeks, the police took her to defendant's house, where she identified him and his truck.

Akie Sterling was an Oriental girl whom Curtis Sterling had married while in the service and brought to the United States. For about four months before her murder, defendant, a gardener by occupation, had lived next door to the Sterlings with his cousin, Mrs. Ferguson.

On April 27, 1966, when Mr. Sterling left for work about 6 a.m., Akie Sterling was at home and in good health. She had planned to go to the unemployment office and afterward to paint the guest room. Mr. Sterling returned home about 6 p.m. and found the back door locked. He entered the house by unlocking a side door. There was mail on the dining room table where his wife customarily placed it and an unemployment card which she had undoubtedly received at the unemployment office. Sterling went to the guest room and found his wife, clad in a slip, lying on the floor dead. He noticed that paint had been scraped from the walls and saw unopened paint cans standing nearby. The bed was pushed to one side, and a lamp had been knocked off a table onto the floor. There was a hole in the floor that had not been there when he went to work.

When Mrs. Ferguson left for work in the morning, defendant was still in bed, and when she returned home between 2 and 2:30 in the afternoon he was gone. He came home about 7 p.m.

The postman testified that he delivered the Sterlings' mail between 1:15 and 1:20 in the afternoon on April 27, 1966. Within a minute thereafter, he delivered mail to the Ferguson house and saw defendant on the porch.

As the result of an autopsy performed on Mrs. Sterling by Dr. Harold Kade, Senior Deputy Medical Examiner for the Los Angeles County Coroner's office, he concluded that she died of gunshot wounds in the head and chest. He recovered a bullet, which was fragmented into two portions of lead and copper jacket, from her head. The bullet had entered the back of the head, slightly to the right of the midline. Dr. Kade removed the copper jacket from underneath the scalp in the right rear area of the head, outside the skull bone. The remainder of the bullet traveled forward and toward the left and was recovered from the middle of the head. Another bullet entered the center of the chest, slightly to the left of the midline, traveled completely through the body and emerged just inside the left shoulder blade. From the skin around the exit wound from this bullet, there appeared a ring of abrasion or scraping, indicating that the skin was in contact with a hard surface at the time the bullet made its exit and that the body was lying on the floor when the shot was fired. Around the entrance of the wound, on the skin of the chest, Dr. Kade observed powder tattooing, and particles of gun powder were imbedded in the skin. The bullet that went through the chest pierced the floor and was later dug out from under the house by a criminalist from the Los Angeles Police Department.

In the opinion of Dr. Kade, both shots caused mortal wounds. The head wound penetrated vital centers in the brain that control the heartbeat and respiration and, when destroyed, result in death. The chest wound perforated the heart and left lung, resulting in massive hemorrhaging, and unquestionably was an inevitably fatal wound.

An examination of the smears of seminal fluid removed from the vagina and rectum disclosed large numbers of male sperm. Dr. Kade testified that there was no possible way for spermatozoa to enter the rectum other than through the anus. Had it been ingested, it would have been destroyed by digestive processes prior to reaching the rectum. He further testified that any male discharge would not remain in the vagina of a living woman longer than 48 to 72 hours at the most, and that spermatozoa from intercourse between Mr. and Mrs. Sterling the preceding Saturday, followed by a douche, could not still be present on Wednesday, the day Mrs. Sterling died.

Mr. Sterling testified that he and his wife had last had intercourse on the previous Saturday; that never during their marriage had they engaged in rectal intercourse; and that after sexual relations Akie customarily used a douche.

In addition to the bullet wounds, Dr. Kade found other injuries to the body,--a slight abrasion on the upper chest to the right of the breastbone; a bruise on the forehead above the eyebrows; abrasions on the neck that could have been caused by manual strangulation; and scraped areas around the ear, jaw, side of the neck and chin. An examination of the vaginal and rectal areas failed to disclose any visible lacerations, tears, hemorrhaging or bruising.

About 2:45 p.m. on May 3, 1966, Sergeant Hambly of the Los Angeles Police Department, drove Fannie Ryan to defendant's home, less than a mile from her home. Defendant was seated in his truck parked on the street. Miss Ryan identified the truck and identified defendant as the man who had accosted her with a shotgun on April 21, 1966. About 20 minutes after Miss Ryan's identification, the officer arrested defendant beside his truck.

Sergeant Hambly and Officer Smith of the Latent Fingerprint Section of the Los Angeles Police Department's Scientific Investigation Division returned to defendant's home about 6 p.m. with a search warrant. Mrs. Ferguson gave them permission to enter and search her house. In the space between the floor and the bottom drawer of a cabinet in the bathroom, Sergeant Hambly saw a brown paper bag and in it a leather object resembling a holster and the butt of a pistol. Officer Smith removed the pistol and holster, checked them for fingerprints, preserved the paper bag for chemical treatment for the development of fingerprints, and took the gun, holster and paper bag from the premises. Upon making their discovery, the officers called Mrs. Ferguson to the bathroom and showed her the gun and holster. She said the gun was not hers; she did not know it was there; and she had not given anyone permission to put it there.

Later when defendant telephoned Mrs. Ferguson, she told him of the officers' finding the gun in the drawer and asked him if he had put it there. He replied, 'Forget about it.' She asked him, 'Was that your gun?' and he answered, 'Just forget about it.'

On May 4, 1966, Officer Cooper of the Los Angeles Police Department placed defendant's fingerprints on a fingerprint card. Through the use of the chemical treatment for the development of fingerprints he found prints on the paper bag that had contained the gun and holster. He photographed the print, made an enlargement of the photograph, and compared it with an enlargement of a portion of defendant's palm print. On the basis of this comparison he formed the opinion that the print on the paper bag was made by the same person who made the palm print on defendant's fingerprint card.

Dewayne Wolfer, a chemist and ballistics expert with the Scientific Investigation Division Crime Laboratory of the Los Angeles Police Department, testified that the gun, a nineteenth century Colt, when fired at a target would cause sooting on the target only within a distance of nine inches from muzzle to target. He test-fired the gun in his laboratory and recovered the slug. He went to the Sterling house and examined the bullet hole in the floor of the guest room. He shoved a rod down the bullet hole and crawled under the house, where he dug out a bullet. He examined these two bullets, as well as the bullet that Dr. Kade had removed from Mrs. Sterling's head, and on the basis of that comparison he formed the conclusion that all three bullets were fired from the same gun.

Apart from the examination conducted by Dr. Kade, Officer Wolfer made a chemical analysis of the specimens of semen and pubic hairs removed from the deceased by Dr. Kade. He found that the three slides were contaminated with sperm and that it was highly probable that the white incrustation on the hairs was male ejaculation.

Defendant's contentions:

First, That there is insufficient evidence to support the judgment of conviction of murder in the first degree in the commission of burglary and rape.

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