People v. Welborn

• Decision Date: 03 June 1966
• Docket Number: Cr. 3899
• Citation: 51 Cal.Rptr. 644,242 Cal.App.2d 668
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Georgia L. WELBORN, Defendant and Appellant.

Page 644

51 Cal.Rptr. 644

242 Cal.App.2d 668

The PEOPLE of the State of California, Plaintiff and Respondent, v. Georgia L. WELBORN, Defendant and Appellant.

Cr. 3899.

District Court of Appeal, Third District California.

June 3, 1966.

As Modified June 20, 1966.

Rehearing Denied July 14, 1966.

Hearing Denied Aug. 31, 1966.

Anthony J. Chargin, Stockton, for appellant.

Thomas C. Lynch, Atty. Gen., by Doris Maier, Asst. Atty. Gen., and Richard K. Turner, Deputy Atty. Gen., Sacramento, for respondent.

PIERCE, Presiding Justice.

Using her husband's rifle, a .22 caliber semiautomatic, defendant shot him four times. One bullet was fatal. She was charged with second degree murder. A jury convicted her of voluntary manslaughter.

Her appeal involves no new or important issue of law, changes no established principle of law. Because the discussion of the principal point raised on appeal does, we think, illustrate an intelligent, painstaking and too infrequently invoked use by the trial judge of his power to make jury instructions more meaningful by fitting them to the specific facts, we deem this opinion meets the standard for publication. (Cal. Rules of Court, rule 976.)

There is no doubt defendant shot and killed her husband. Her defense was that the shooting (at least as regards the fatal bullet) was accidental. One contention on appeal, not the principal one, was that the evidence was insufficient to support the voluntary manslaughter conviction. We therefore relate the facts in some detail.

Defendant and Harry Welborn (called 'Jack' by the defendant and hereinafter by us) were married in January 1962. The shooting took place October 18, 1964. The marriage was a stormy one. Jack drank to excess. (The degree of that excess may be gauged by the fact that during the latter days of the marriage he consumed a fifth of whiskey a day.) When drunk he became belligerent, arrogant and on several occasions had physically abused defendant. His tirades were punctuated by acts of destruction and violence, by threats to shoot a deputy sheriff, the defendant and himself, and in the presence of his wife he twice tried to shoot a neighbor. The rifle later used by defendant had been purchased by Jack some years before the marriage. He had, in one of his rages, fired the gun four times inside the home and defendant had hidden the gun fearing he would shoot her as he had threatened to do. During this period, defendant, who was going through the menopause, was in deep distress. She was also afraid of her husband. Other sources of her distress were that other women wrote and telephoned her husband. The sexual relations of the couple were unsatisfactory because of Jack's drinking.

On October 18, 1964, defendant had hidden Jack's gun in the bathroom behind the ironing board. At 4 a.m. that morning Jack arose, had a drink or two and then awakened defendant. At about 10 a.m. Mr. Owen, a neighbor, visited the home. Defendant and Jack were at the kitchen breakfast table, where he continued drinking whiskey. He stated he wanted to leave for Lockeford. His car keys could not be found and he became angered. Defendant looked for the keys and Jack became angrier because he thought she was hiding them. Mr. Owen, by this time, had left the home. Jack, by then intoxicated, asked defendant to bring him his gun. When she did not produce the gun he told her to 'get out of the house.' Defendant in her testimony at the trial stated that she then decided to produce the gun and did so, taking it from its hiding place. She started to take it to Jack in the kitchen. As she did so, he arose from a kitchen chair where he was sitting with his back to her and looked around toward her. She was frightened, nervous and tense.

From then on, according to her testimony, things were not too clear. She remembered the 'gun going off' and she remembered screaming and saying, 'My God, Jack, I've hurt you,' and then saying, 'I'll get help.' She had no recollection of actually pulling the trigger, but she thought that her finger was on the trigger. She stated she had had no intention of shooting her husband. She went out into the yard and called to Mr. Owen, saying 'I've shot Jack.' When she summoned Owen she was still holding the gun and was hysterical. Mr. Owen called the sheriff's office and an officer arrived. Defendant told the officer she had meant to scare her husband, not to kill him. She told another officer she had not meant to hurt her husband. She was in a highly emotional state. Before any of her statements were given, she was advised of her right to counsel and to remain silent.

As a result of the shooting Jack received four wounds, one of which was fatal. This wound was just below the eighth rib, or the so-called transverse process thereof; a fragment of the bullet was found in the branches of a major vein near the spinal column. In addition there was a wound at the sacroiliac junction, one in the right arm below the elbow which fractured the ulna, and another in the front portion of the thigh.

A criminologist, Dr. Paul Kirk, produced by the defense, examined the fragment of a bullet taken from the victim's low back and testified that it represented not more than a third of a normal intact bullet; the remaining two-thirds were never found. Dr. Kirk expressed the opinion that the fatal bullet had struck something else which could have been wood prior to entering the victim's body. His conclusion also was that the fatal shot was accidental.

Prosecution evidence, however, showed that the rifle required a separate trigger pull to fire each cartridge. The pressure necessary to a trigger pull was four pounds.

Re The Contention that the Evidence was Insufficient to Justify a Jury Verdict that Defendant Was Guilty of Voluntary Manslaughter.

The evidence recited is sufficient to justify the jury reasonably to have believed and found that defendant Was guilty of having shot at her husband and with an intent to kill him, and to disbelieve her story that she did not know how the gun was fired and that she did not intend to kill her husband. She did shoot and hit him four times with a lethal weapon. The fact that the fatal bullet was one which may have ricocheted could mean either that on this shot her aim was bad or that she had deliberately aimed to miss her husband. The jury could have reasonably concluded the former. Particularly significant in this regard is the pressure necessary to discharge each shot.

Voluntary manslaughter is a crime requiring a specific intent. (People v. Gorshen, 51 Cal.2d 716, 732--733, 336 P.2d 492.) Such intent is almost invariably an inference to be drawn by the jury from circumstantial evidence. (See 1 Witkin, Cal. Crimes, p. 58, and authorities cited.) The character of a weapon and the consequences of its use are facts relevant to the trier of fact on the issue of intent. (People v. Malki, 181 Cal.App.2d 118, 122, 5 Cal.Rptr. 207.)

Under the facts related the jury acted reasonably in finding that the shooting was intentional, also that it was within the definition of voluntary manslaughter.

'Manslaughter is the unlawful killing of a human being without malice.' (Pen. Code, sec. 192.) It is voluntary when the killing is 'upon a sudden quarrel or heat of passion.' (Pen.Code, sec. 192, subd. 1.) We need not reiterate the facts. Described above, they clearly come within the purview of the statutory definition. They were acts 'upon a sudden quarrel or heat of passion.'

In People v. Borchers, 50 Cal.2d 321, 329, 325 P.2d 97, 102, the court said:

'As defendant argues persuasively, 'passion' need not mean 'rage' or 'anger'. According to dictionary definition, 'passion' may be any 'Violent, intense, highwrought, or enthusiastic emotion.' (Webster's New International Dictionary, 2d ed.) As stated in People v. Logan (1917), 175 Cal. 45, 49, 164 P. 1121, quoted with approval in People v. Danielly (1949), 33 Cal.2d 362, 377--378, 202 P.2d 18, and People v. Valentine (1946), 28 Cal.2d 121, 139, 169 P.2d 1, 'the fundamental of the inquiry (in determining whether a homicide is voluntary manslaughter) is whether or not the defendant's reason was, at the time of his act so disturbed or obscured by some passion--not necessarily fear and never, of course, the passion for revenge--to such an extent as would render ordinary men of average disposition liable to act rashly or without due deliberation and reflection, and from this passion rather than from judgment. '' (See also People v. Beach, 212 Cal.App.2d 486, 493, 28 Cal.Rptr. 62.)

Re The Contention that the Court Erred in Giving its Special Instruction to the Jury.

The trial court fully instructed the jury, giving standard instructions (inter alia) on the presumption of innocence, the burden of proof, the necessity of proof to a moral certainty and beyond reasonable doubt, how intent is manifested, definition and explanations of all elements of all offenses which were properly before the jury. It instructed on all facets of excusable homicide and accidental shooting. It explained proximate cause. All of these instructions were given in the abstract, and 'formula' instructions were carefully avoided. That is the point at which a more timorous jurist would have completed his instructions--even though, as most trial judges realize, in a case such as this, a hopelessly confused jury might be left, during its deliberations, to wrestle with the niceties of distinctions between the several verdicts possible. California Constitution article VI, section 19, permits the trial judge to comment upon evidence and even express opinions on the credibility of witnesses. Our Supreme Court has encouraged the proper use by trial judges of this provision. (See, e.g., People v. Friend, 50 Cal.2d 570, 576--577, 327 P.2d 97. ¹ Law must be applied to facts. Jurors are the judges of the facts. If that statement is to mean anything, trial judges should translate the law as expressed in the texts in the...