People v. Whitehead

• Court: California Court of Appeals
• Writing for the Court: PEEK; VAN DYKE, J., and SCHOTTKY
• Citation: People v. Whitehead, 113 Cal.App.2d 43, 247 P.2d 717 (Cal. App. 1952)
• Decision Date: 06 September 1952
• Docket Number: Cr. 2342
• Parties: PEOPLE v. WHITEHEAD.

Page 717

247 P.2d 717

113 Cal.App.2d 43

PEOPLE v. WHITEHEAD.

Cr. 2342.

District Court of Appeal, Third District, California.

Sept. 6, 1952.

David E. Peckinpah, Denver C. Peckinpah and Daniel L. Jensen, Fresno, for appellant.

Doris H. Maier, Deputy Atty. Gen., for respondent.

PEEK, Justice.

By an information defendant was charged with the crime of murder. He pleaded not guilty to the crime charged and the cause proceeded to trial before the jury. At the conclusion thereof he was found guilty of voluntary manslaughter. He now appeals from the judgment of conviction and the order denying his motion for a new trial.

The facts, which are undisputed, show that on September 16, 1951, between 7:30 and 7:45 o'clock p. m. John Whitehead, the defendant, Eudee Edwards, Eunice Hartfield and Sylvester Adams, the deceased, were standing on Eleventh Street between A and B Streets in the city of Madera. Two eye witnesses observed the shooting from a point some 100 to 150 feet distant. Both testified they did not know who actually fired the shots but that the group was engaged in an argument and that they heard some member thereof, the identity of whom they likewise were not able to ascertain, state, 'I will kill you.' Immediately thereafter they heard three shots fired in rapid succession. These witnesses observed the deceased go west on Eleventh Street and the other three go east 20 or 30 feet and turn into an alley. They also testified to seeing one of the group, who was otherwise identified as the defendant, place a gun in his pocket.

In addition to the witnesses above mentioned the state called a police officer who identified the gun; the autopsy surgeon who testified to the cause of death as being from a hemorrhage resulting from a gunshot wound in the leg; and Eudee Edwards.

The principal question presented for decision relates to the correctness of the restrictions placed on the scope of defendant's cross-examination of Edwards, who was the first witness called by the prosecution.

He testified to owning a gun similar to the one he was asked to identify. Counsel then stipulated the gun was the one taken from the Hartfield premises and owned by Edwards. He further testified that he had known Adams, the deceased, for ten years; that he was on Eleventh Street between A and B Streets on the day Adams was shot; that he had the gun first during the morning of that day but that the defendant had it in the afternoon; that his sister Eunice Hartfield was with defendant and himself; that Whitehead fired the gun three times at Adams from a distance of five or six feet; that after the shots were fired, Whitehead, Hartfield and the witness went to the house where Hartfield lived; that he could not recall there being any conversation either during the walk to the house or afterwards when he and Whitehead were in the backyard; that while in the backyard the empty shells were removed and three new shells were put in the chambers; and that Whitehead went into the house and obtained a shotgun.

On cross-examination Edwards testified, without objection, that a short time before the shooting he gave the gun to Whitehead while they were at 'Tony's Liquor Store'; that Whitehead previously had possession of the gun but that he was not certain of the time. Thereafter the following occurred:

'Q. Where did you first see Sylvester Adams on that day?

'Mr. McClenahan: I object to that as going beyond the scope of cross-, of direct-examination, he testified he saw Adams at the time of the shooting, I believe counsel is limited to that.

'The Court: Objection will be sustained.

'Mr. Peckinpah: Q. Had you seen Sylvester Adams prior to the time that the shots were fired? Don't answer that until counsel has a chance to object to it.

'Mr. McClenahan: I object to it.

'The Court: Objection will be sustained.

'Mr. Peckinpah: Q. When you saw Sylvester Adams immediately before the shots were fired, isn't it a fact that he was moving towards this Defendant?

'Mr. McClenahan: I object to that, there is no testimony on direct examination that he was moving at all.

'Mr. Peckinpah: He did say he was moving.

'Mr. McClenahan: That testimony was stricken from the record. * * *

'The Court: The objection will be overruled as to that particular question. * * *

'The Witness: Oh, yes, he was moving towards him, yes, he was advancing, coming towards him.

'Q. When you say, 'advancing, coming towards him,' when you say 'him', you mean John Whitehead? A. Yes, sir, I mean John Whitehead.

'Q. Now, at that time, did Sylvester Adams threaten John Whitehead?

'Mr. McClenahan: I object to that question. There is no testimony whatsoever on direct examination of anything said by the Defendant, and it is wholly improper cross-examination.

'The Court: The objection will be sustained.

'Mr. Peckinpah: Q. At the time that Sylvester Adams was moving towards this Defendant, just before the shots were fired, isn't it a fact that this Defendant was backing away from Adams?

'Mr. McClenahan: I object to that. There is no statement of any direction of movement on the part of Whitehead.

'Mr. Peckinpah: I submit there it not only evidence, but he marked the record where this Defendant was.

'The Court: The objection will be overruled as to that question.

'Mr. Peckinpah: I will re-ask the question in the interests of saving time. Isn't it a fact that when Sylvester Adams was advancing towards Whitehead, that Whitehead was backing away from Adams? A. He backed away from him, yes.

'Q. Isn't it also a fact that at that time, as Whitehead backed away from Adams, he said, 'Don't come up on me'?

'Mr. McClenahan: I object to that. There is no testimony of any conversation whatsoever on direct examination.

'The Court: The objection will be sustained.

'Mr. Peckinpah: How long had you known Sylvester Adams? A. Approximately ten years.

'Q. I beg your pardon? A. Ten years or more, yes.

'Q. How old a man was he? A. I don't know exactly, in his thirties.

'Mr. McClenahan: What was your answer?

'The Witness: I said he was thirty-some-odd years.

'Mr. Peckinpah: About twenty years younger than this Defendant?

'Mr. McClenahan: I object to that question, to that question, there is no testimony of the age of the Defendant, Your Honor.

'The Court: The objection will be sustained.

'Mr. Peckinpah: Q. How big a man was Sylvester Adams? A. Well, I don't know, he weighed about 175, something like that.

'Q. About 175? A. About 175 and 176, something like that.'

Subsequent to the sustaining of objections to these questions counsel for defendant asked the court:

'In order to save time, Your Honor, I take it, from the Court's rulings, I am precluded to ask any questions regarding any conversation that occurred at the time of the shooting.' To which the court replied:

'That will be the Court's ruling. In other words, I have permitted you to go into the question of movements, because I think that was part of the location of the People, but everything else that occurred at that time was precluded for the reason that those facts have not been covered on direct examination.'

Counsel for defendant then stated that 'in view of that ruling, we have no further questions on cross-examination.'

Defendant now makes two contentions, (1) that the trial court prejudicial erred in unduly restricting the cross- examination of the witness Edwards, and (2) that the trial court likewise erred in failing to give certain instructions proposed by defendant.

Section 2048 of the Code of Civil Procedure provides generally that 'The opposite party may cross-examine the witness as to any facts stated in his direct examination or connected therewith, and in so doing may put leading questions, but if he examine him as to other matters, such examination is to be subject to the same rules as a direct examination.'

It is further provided in section 1854 of the same code that 'When part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by the other; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing, which is necessary to make is understood, may also be given in evidence.'

In elaboration of these rules the writer in 27 Cal.Jur. 96 et seq., states:

'The authorities all agree that wide latitude should be allowed in cross-examination for the purpose of testing accuracy or credibility, especially if the witness is a reluctant one or is hostile, or if he is one of the parties in interest, or is a witness against a defendant in a criminal prosecution. The court has, however, discretionary power over cross-examination which will be disturbed on appeal only in case of an abuse thereof. Thus the court may confine an examination within reasonable limits, and may curtail a cross-examination which is unduly protracted, frivolous, or which relates to matters which are irrelevant, admitted or have already been fully covered.' (Emphasis added).

The fundamental feature of cross examination '* * * is that a witness, on his direct examination, discloses but a part of the necessary facts. That which remains suppressed or underveloped may be of two sorts, (a) the remaining and qualifying circumstances of the subject of testimony, as known to the witness, and (b) the facts which diminish the personal trustworthiness of the witness.

'(a) The remaining and qualifying circumstances of the subject of testimony will probably remain suppressed or undisclosed, not merely because the witness frequently is a partisan, but also and chiefly because his testimony is commonly given only by way of answers to specific interrogatories * * * and the counsel producing him will usually ask for nothing but the facts favorable to...