People v. Wilburn, Cr. 5879

• Citation: 314 P.2d 590
• Decision Date: 12 August 1957
• Docket Number: Cr. 5879
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Elmer WILBURN and Oswald R. Atkinson, Defendants, Oswald R. Atkinson, Appellant.*

Page 590

314 P.2d 590

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

Cr. 5879.

District Court of Appeal, Second District, Division 1, California.

Aug. 12, 1957.

Hearing Granted Oct. 10, 1957.

Nathan Kline, Los Angeles, for appellant.

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

FOURT, Justice.

In county I of an information filed in Los Angeles county, the defendants were charged with the murder (Penal Code, § 187) of Walter Joseph James, on or about June 4, 1956, and in counts II, III and IV of such information they were charged with armed robbery (Penal Code, § 211) on June 4, 1956. It was further alleged in the information that at the time of the commission of the offenses the defendants were armed with deadly weapons, namely a .38 caliber revolver and a .32 caliber revolver.

The defendants pled not guilty to each count. However, in the course of the trial they each changed their pleas to that of guilty as to the three counts of robbery and admitted being armed with a dealy weapon at the time of the commission of the robberies, as charged. The court fixed the degree at robbery of the first degree. The case proceeded through trial with a jury on the murder charge and each defendant was found guilty of murder in the first degree and of being armed at the time, as charged. The jury recommended life imprisonment for both defendants. A motion for a new trial was made by appellant Atkinson, which was denied. The appellant was sentenced to life imprisonment upon count I, the murder charge, and sentenced for the term prescribed by law as to counts II, III and IV, the robbery charges. This appeal if from the judgment and the order denying a new trial.

A resume of the pertinent facts of the case is as follows: About a week or so before June 4, 1956, the defendants discussed and planned the robbing of the Shop-Rite Liquor Store, which was located in Los Angeles. About 9:30 o'clock p.m., on June 4, 1956, pursuant to the plan, the defendants approached the liquor store in an automobile for which they had previously arranged. After parking the automobile nearby, Wilburn entered the store and purchased a soft drink and observed that there were three people in the store, Willie James, a clerk, Walter James, his brother, and Thomas Wright, a patron. Wilburn returned to the street and told Atkinson that they should not 'take' the store because three people were in it. Atkinson inquired of Wilburn if any of the three had a gun, and Wilburn reported that they did not. Atkinson then stated that they should go ahead with the robbery. Both defendants entered the liquor store, Wilburn going in first with a loaded .32 caliber Smith & Wesson revolver in his hand, and Atkinson following with a loaded .38 caliber Colt revolver in his hand.

Atkinson told the three people in the store (Willie James, Walter James and Thomas Wright) to keep their hands still, to get into the back of the store and to keep their backs turned, or they would get a bullet. The three persons were forced to bend over beer cases and their pockets were searched and their money and property were taken from them. Atkinston then instructed Willie James and Wright to lie on the floor with their heads down, and told them that if they moved he would put a bullet in their back. Wilburn took Walter James to the cash rigister in the front of the store, and there had him open the register and take the money out and put it into a paper bag.

Thomas Watson, a retired police officer, came into the store shortly after 10:00 o'clock p.m. to make a purchase and he saw Wilburn with the gun in his hand, Walter James behind the counter by the cash register, and Atkinson standing in the customer's aisle opposite the register. Watson was told by Atkinson to go to the back of the store with the others. Watson had in his possession a .45 Colt automatic with six rounds of copper-coated bullets in the clip. Watson apparently sized up the situation for what it was and took a couple of steps toward the rear. At that moment Atkinson heard a noise coming from the direction of the front of the store and turned his head in that direction for an instant, and when he turned back he saw Watson pointing a gun at him from underneath Watson's arm. Watson fired his .45 automatic and the bullet from it hit Atkinson in the stomach, spinning him around. Watson stepped over to an area where there was a soft drink case and fired a second shot at Atkinson. Atkinson, in the meantime, while spinning fired his .38 caliber revolver. When Wilburn heard Watson's first shot, he looked up and saw Watson shooting at Atkinson. Wilburn told Walter James to get down and they both crouched. Watson, after his second shot at Atkinson, moved from the soft drink case toward another area in the store and fired two shots at Wilburn, who was at that time erect and had a gun pointing at Watson. During the interval when Watson made such move, atkinson was going toward the front door and firing his gun. After Watson fired his last two shots he stepped behind a liquor cabinet for about two seconds, and then looked out and saw Wilburn jumping the counter and Walter James stumbling toward him and fall face downward. Watson saw no reaction from either Walter James or Wilburn when he fired the two shots at Wilburn. Apparently Wilburn did not fire any shots from his revolver. The entire time form the first shot until Walter James stumbled to the floor was about twenty seconds.

Motorcycle officers Fitzgerald and Rucker were in the vicinity of the store, writing a citation to a motorist, and heard the shots. Fitzgerald saw two people come from the store when the shooting stopped. It later developed that Atkinson was one of such persons, and he ran northerly and the officers lost sight of him; the other person was Wilburn who ran southerly and was caught by the officers, who made a search of him and found the .32 caliber revolver in Wilburn's right-hand coat pocket with six unexpended cartridges in it. They also found on Wilburn the bag containing the money from the cash register and a wallet taken from one of the people in the store. Officer Fitzerald found where Atkinson had dropped the .38 caliber revolver, in a property close by the store, with five spent cartridges and one live cartridge in the cylinder. Certain other officers made an examination of the store and found bullet holes and some slugs. Four of the five bullets fired by Atkinson were accounted for either by recovery or by discovery of the holes or markings left in the course of flight. One bullet was unaccounted for.

Atkinson, after running away, ultimately went to the Georgia Street Hospital that night for treatment. A communication was received by the police from the hospital to the effect that Walter James had died, and later word was received that Atkinson was at the hospital. Wilburn, in custody of the officers, went to the hospital and there identified Atkinson as being his co-robber, and Atkinson said, 'I guess it is all up.'

The police had a conversation with Atkinson at the General Hospital after he had received treatment. The police made notes of the talk which were later type-written into a document which was then read and signed by Atkinson. The statements were freely and voluntarily made. In the written statement Atkinson set forth how he and Wilburn had entered the store, guns in hand so to speak; how they ordered the people to go to the back of the store; how they took the money and the wallet from the victims and how Wilburn took 'one guy to the cash register' and how the man in a grey suit (Watson) came in and how he (Atkinson) ordered the man to go to the back of the store and that 'as soon as he (Watson) passed me he pulled his gun and shot me in the guts'; that 'I must have shot, but I don't remember. I thought I shot 'Popeye' (Wilburn)'; that 'I used the .38 revolver that 'Pop-eye' (Wilburn) had and he used the .32 revolver' and 'I'm sorry he is dead. Why didn't you guys stop me before this happened.'

An autopsy report showed that Walter James, the decedent, suffered two gunshot wounds, one in the chest and abdomen, which was fatal, and one in the left arm, which was admittedly not fatal. Both bullets passed through the decedent's body.

Various experts testified as to the course of the bullets, and further to the effect that the slug or bullet which killed the decedent was from the .38 caliber gun which Atkinson had fired, and not from the .45 caliber gun which Watson had fired.

The appellant contends that the evidence was insufficient to sustain the verdict of guilty, and further that the evidence affirmatively demonstrates that it was a physical impossibility for Atkinson to have fired the fatal shot. He further argues that if there 'were * * * any slugs remaining in the body of the deceased, the problem would be completely simplified'.

A complete reading of the testimony and a perusal of the exhibits in this case leads us to the conclusion that there is ample evidence from which the jury could determine that Atkinson fired the fatal shot, and that the evidence was not at all improbable or inherently inprobable. In People v. Headlee, 18 Cal.2d 266, at page 267, 115 P.2d 427, the court said with reference to the matter of improbability: 'To be improbable on its face the evidence must assert that something has occurred that does not seem possible could have occurred under the circumstances disclosed. The improbability must be apparent; evidence which is unusual or inconsistent is not necessarily improbable.' And in People v. Newland, 15 Cal.2d 678, at page 681, 104 P.2d 778, at page 779, the court said: 'The court on appeal 'will not attempt to determine the weight of the evidence, but will decide only whether upon the face of the evidence it can be held that sufficient facts could not have...