People v. Wilburn, Cr. 6161

• Citation: 49 Cal.2d 714,321 P.2d 452
• Decision Date: 14 February 1958
• Docket Number: Cr. 6161
• Court: California Supreme Court
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Elmer WILBURN and Oswald R. Atkinson, Defendants. Oswald R. Atkinson, Defendant and Appellant.

Page 452

321 P.2d 452

49 Cal.2d 714

The PEOPLE of the State of California, Plaintiff and Respondent, v. Elmer WILBURN and Oswald R. Atkinson, Defendants.

Oswald R. Atkinson, Defendant and Appellant.

Cr. 6161.

Supreme Court of California, In Bank.

Feb. 14, 1958.

Rehearing Denied March 12, 1958.

Morris Lavine, Nathan Kline, Los Angeles, for appellant.

Ellery E. Cuff, Public Defender, Erling J. Hovden, Chief Deputy Public Defender, and Richard B. Goethals, Deputy Public Defender, Los Angeles, as amici curiae on behalf of appellant.

Edmund G. Brown, Atty. Gen., and Miles J. Rubin, Deputy Atty. Gen., for respondent.

CARTER, Justice.

Defendants Wilburn and Atkinson were charged in four counts: Count 1, murder of Walter James and counts 2, 3 and 4, armed robbery; it was charged also that they were armed with revolvers during the commission of the crimes. They pleaded not guilty to all counts but later pleaded guilty to the armed robbery (counts 2, 3 and 4) and admitted being armed with revolvers when the robberies were committed. The killing of James occurred in the commission of the robberies. Defendants were found guilty of first degree murder and the jury fixed the penalty at life imprisonment. Defendant Atkinson only appeals.

Between 9:30 and 10:00 p. m. on June 4, 1956 defendants approached a liquor store which they planned to rob and which was being operated by Willie James, a clerk. Wilburn who entered the store and purchased a soft drink observed three people in the store Willie, his brother Walter, who was helping Willie, and Thomas Wright, a patron. Wilburn left the store and suggested to Atkinson that the time was not right since there were three people in the store but told Atkinson that none of the three had a gun and Atkinson suggested they proceed as planned. Defendants entered the store, loaded revolvers in their hands, Wilburn with a .32 caliber Smith and Wesson and Atkinson with a .38 caliber Colt. Atkinson told the persons in the store to keep their hands still, go to the back of the store and keep their backs toward the front of the store or they would get a bullet. The three went to the rear of the store to the storage room and were forced to bend over liquor cases there and valuables were removed from their persons. According to Atkinson's instructions, Willie and Wright then laid face down on the floor and were warned that if they moved they would get a bullet in the back. Wilburn took Walter to the cash register toward th front of the store, and had him open the register and put the money in a paper bag. About that time Thomas Watson, a retired police officer, armed with a loaded .45 caliber Colt automatic on his person, entered the store to make a purchase. He saw Wilburn with a gun and Walter behind the counter at the cash register and Atkinson standing in the customers' aisle opposite the register. Watson was told by Atkinson to go to the back of the store and he took a couple of steps in that direction, having sized up the situation as a hold-up. Atkinson glanced toward the front of the store and when he turned back toward Watson the latter had drawn his automatic which he fired, hitting Atkinson, spinning him around. Watson stepped over to a soft drink case and fired again at Atkinson. In the meantime Atkinson was firing his revolver. Watson moved to another area and fired two shots at Wilburn. A few seconds later defendants fled from the store, and Walter stumbled toward Watson and fell. Defendants were later apprehended. Five shots were fired by Atkinson, none by Wilburn. An examination of the store accounted for four of Atkinson's bullets.

Atkinson contends that the evidence is insufficient to establish that a bullet from his gun caused the death of Walter James; that it is inherently improbable that it came from his gun. There is no question but that the killing occurred in the commission of a robbery being perpetrated by Atkinson and Wilburn and that therefore it was murder of the first degree (see, Pen. Code, §§ 187, 189) if shown that Walter was shot by Atkinson, and the question is not presented as to whether it would nevertheless be first degree murder although Walter was killed by a shot from Watson's gun, he being the only other one to fire a gun.

The scene of the robbery is a liquor store with its length running east and west. The customers' entrance to the store was at the south end of the east side. Extending west along the south wall is a beer display, stock rack and liquor cases. Immediately north of that is a customers' aisle. Along the north side of the aisle and extending west is a cigar counter, a merchandising counter on the west end of which is a cash register, and then a display refrigerator for soft drinks. At the end of that is an aisle running north for access to shelves of liquor and a storage room along the north side of the store. Along the wall to the west of that aisle is a refrigerator and more cases. Behind and to the north of the counter and soft drink refrigerator is an aisle called clerk's aisle and then a row of shelves for liquor display against the wall separating the store proper from the storage room. As seen, access from...