People v. Ward

• Decision Date: 19 August 1958
• Docket Number: Cr. 6203
• Citation: 328 P.2d 777,50 Cal.2d 702
• Court: California Supreme Court
• Parties: , 76 A.L.R.2d 911 The PEOPLE of the State of California, Plaintiff and Respondent, v. Cecil Herman WARD, Defendant and Appellant.

Page 777

328 P.2d 777

50 Cal.2d 702, 76 A.L.R.2d 911

The PEOPLE of the State of California, Plaintiff and Respondent, v. Cecil Herman WARD, Defendant and Appellant.

Cr. 6203.

Supreme Court of California, In Bank.

Aug. 19, 1958.

Rehearing Denied Sept. 17, 1958.

Robert A. Farrell and J. Richard Thomas, Bakersifield, for appellant.

Edmund G. Brown, Atty. Gen., and William E. James, Deputy Atty. Gen., for respondent.

SHENK, Justice.

This is an appeal from a judgment imposing the death penalty after verdicts finding that the defendant was guilty of murdering Nell and Brenda Parris as charged in two counts of an indictment and that the murders were of the first degree. Following these verdicts proceedings were then taken pursuant to section 190.1 of the Penal Code for the purpose of determining the punishment. The penalty of death was imposed as to each count. Thereafter, on his plea of not guilty by reason of insanity as to each count, the defendant was found to be sane at the time of the commission of the offenses. A motion for a new trial or modification of the judgment was denied.

It appears that during the afternoon of August 18, 1957, the defendant procured a gun. Prior to that time he had made statements concerning his intention to kill members of his wife's family. At about 8:30 he appeared at the back door of the home of Nell Parris, his mother-in-law. In addition to the defendant's wife, Bobbie Ward, and their infant son, there was present in the house at that time Brenda Parris, who was the 13-year old sister of Bobbie. The defendant demanded that his wife leave the premises with him. Upon her refusal to do so he broke in the back door. His wife fled by way of the front door. The defendant pursued and caught up with her a few hundred feet away. During his pursuit an automobile driven by Joe Shatto arrived on the scene. In addition to Mr. Shatto the automobile was occupied by Nell Parris, by Mrs. Shatto who was the sister of Nell Parris, and by three children. Mrs. Shatto got out of the car and approached the defendant and his wife. The defendant had a revolver in his hand and threatened to kill his wife if she would not go with him. All three persons returned to the house and the defendant and his wife went in. She asked for time to get ready to leave and upon the defendant's refusal to grant her request she again ran out of the house and away from the premises the defendant following her. Nell Parris alighted from the automobile for the declared purpose of telephoning the police, and Brenda Parris came out of the house and was entering the automobile with the defendant's infant son in her arms. The defendant approached the automobile and stated that if his wife would not come with him he would shoot Brenda. Without further delay he put the gun close to her head and shot her. Thereupon Nell Parris attempted to strike him with her hand and he shot her also. He fired several shots into her body as she lay on the ground. Both Nell and Brenda Parris died as a result of the gunshot wounds so inflicted. The defendant was apprehended shortly after the homicides, and at about 3:30 the following morning made a statement in which he admitted that he procured the gun for the purpose of killing his wife, and that he shot Nell Parris and someone he thought to be Brenda.

The defendant was represented at the trial by appointed counsel. He did not testify in his own defense. Following the verdicts of guilty on the issues raised by the pleas of not guilty, the trial proceeded before the same jury for a determination of the penalties. After the verdicts were returned fixing the penalty at death the trial again proceeded before the same jury on the issues raised by the pleas of not guilty by reason of insanity. The jury received the evidence of three medical examiners appointed by the court, and, as stated, found the defendant to have been sane at the time the offenses were committed.

The defendant contends without elaboration that there is insufficient evidence to warrant a conviction of first degree murder on either count. That contention is without merit. There can be no question as to the identity of the perpetrator of the crimes or that the offenses were committed 'with malice aforethought.' Pen.Code, § 187. The question then for the jury was whether the defendant had acted with deliberation and premeditation. Pen.Code, § 189. There was ample evidence of his intention formulated prior to the time he arrived at the premises to take a life or lives of members of his wife's family and of an intention continuing to the time of the homicides. Those intentions were disclosed by evidence on the part of numerous witnesses of the defendant's actions and of his direct threats. There was no substantial evidence to contradict the showing of premeditation and deliberation. The verdicts are supported by overwhelming evidence.

The defendant contends that trying him pursuant to the provisions of section 190.1 of the Penal Code constituted the imposition of an ex post facto law as to the offenses charged and was in violation of the state Constitution. Art. I, § 16; see also United States Constitution, art. I, § 9, cl. 3, to the same effect. Section 190.1 was added to the Penal Code by Statutes 1957, page 3509. It became effective on September 11, 1957, after the commission of the offenses charged but prior to the trial. The section provides in its pertinent parts: 'The guilt or innocence of every person charged with an offense for which the penalty is in the alternative death or imprisonment for life shall first be determined, without a finding as to penalty. If such person has been found guilty of an offense punishable by life imprisonment or death, there shall thereupon be further proceedings on the issue of penalty, and the trier of fact shall fix the penalty. Evidence may be presented at the further proceedings on the issue of penalty, of the circumstances surrounding the crime, of the defendant's background and history, and of any facts in aggravation or mitigation of the penalty. The determination of the penalty of life imprisonment or death shall be in the discretion of the court or jury trying the issue of fact on the evidence presented, and the penalty fixed shall be expressly stated in the decision or verdict. * * * If the defendant has pleaded not guilty by reason of insanity at the time of commission of the offense, the trier of fact, after the determination of the penalty, shall thereupon determine whether or not defendant was sane at the time of commission of such offense. * * * If the defendant was convicted by a jury, the trier of fact on the issue of penalty and the issue of sanity, if any, shall be the same jury * * *.' No contention is made that proceedings were not taken in accordance with the above provisions of the Penal Code.

In general, 'any law which was passed after the commission of the offence for which the party is being tried is an ex post facto law when it inflicts a greater punishment than the law annexed to the crime at the time it was committed [citations]; or which alters the situation of the accused to his disadvantage * * *.' In re Medley, 134 U.S. 160, 171, 10 S.Ct. 384, 387, 33 L.Ed. 835. Changes which may be designated as procedural do not, as a rule, come within the ex post facto doctrine, but that in itself is not the true test. In Thompson v. State of Utah, 170 U.S. 343, on pages 351 and 352, 18 S.Ct. 620, on page 623, 42 L.Ed. 1061, the following appears: 'It is sufficient now to say that a statute belongs to that class which by its necessary operation and 'in its relation to the offence, or its consequences, alters the situation of the accused to his disadvantage.' [Citations.] Of course, a statute is not of that class unless it materially impairs the right of the accused to have the question of his guilt determined according to the law as it was when the offence was committed. And therefore it is well settled that the accused is not entitled of right to be tried in the exact mode, in all respects, that may be prescribed for the trial of criminal cases at the time of the commission of the offence charged against him. Cooley in his Treatise on Constitutional Limitations, after referring to some of the adjudged cases relating to ex post facto laws, says: 'But, so far as mere modes of procedure are concerned, a party has no more right, in a criminal than in a civil action, to insist that his case shall be disposed of under the law in force when the act to be investigated is charged to have taken place. Remedies must always be under the control of the legislature, and it would create endless confusion in legal proceedings if every case was to be conducted only in accordance with the rules of practice and heard only by the courts in existence when its facts arose. The legislature may abolish courts and create new ones, and it may prescribe altogether different modes of procedure in its discretion, though it cannot lawfully, we think, in so doing, dispense with any of those substantial protections with which the existing law surrounds the person accused of crime.' * * * The difficulty is not so much as to the soundness of the general rule that an accused has no vested right in particular modes of procedure as in determining whether particular statutes by their operation take from an accused any right that was regarded, at the time of the adoption of the constitution, as vital for the protection of life and liberty, and which he enjoyed at the time of the commission of the offense charged against him.'

The defendant contends that during that portion of the present proceeding conducted for the purpose of determining penalty, evidence of his jail and juvenile court records was admitted; that such evidence had no relevancy to the cause and would not have been admissible under the rules of evidence in effect prior to the adoption of section 190.1 (see People v. Barclay, 40...