People v. Wynn

• Citation: 257 Cal.App.2d 664,65 Cal.Rptr. 210
• Decision Date: 09 January 1968
• Docket Number: Cr. 5987
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Walter WYNN, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 210

65 Cal.Rptr. 210

257 Cal.App.2d 664

PEOPLE of the State of California, Plaintiff and Respondent, v. Walter WYNN, Defendant and Appellant.

Cr. 5987.

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

Jan. 9, 1968.

Gary C. Britton, Public Defender, County of Santa Cruz, Santa Cruz, for appellant.

Thomas C. Lynch, Atty. Gen., Robert R. Granucci, William D. Stein, Deputy Attys. Gen., San Francisco, for respondent.

SIMS, Associate Justice.

Defendant appeals from a judgment, convicting him of manslaughter in violation of section 192 of the Penal Code, and sentencing him to state prison following denial of probation. Judgment was pronounced and rendered after a finding of guilt in a court trial on an amended indictment ¹ which charged that on July 2, 1966 defendant unlawfully killed his wife upon a sudden quarrel, and that in the commission of the offense he was armed with a deadly weapon.

Defendant contends that the evidence is insufficient to sustain a finding of his guilt because no substantial evidence was adduced in the court below to show (a) that he acted with a specific intent to kill, (b) that he shot his wife upon a sudden quarrel or in heat of passion, or (c) that he fired a revolver at his wife of his own volition. He complains that the court erroneously excluded evidence which would tend to show a lack of specific intent. He finally urges that the insufficiency of the evidence to support the charge of voluntary manslaughter compels a reversal of the judgment, or, at the very least a modification of the judgment to a conviction of involuntary manslaughter.

It is concluded on review that there was no prejudicial error in the exclusion of evidence, that the evidence supports the conviction, and that the defendant is not entitled to reversal or modification of the judgment.

Statement of Facts

On the evening of July 2, 1966, in the bedroom of their apartment in Watsonville, California, defendant, Walter Wynn, shot and fatally wounded his wife Effie. Defendant's two sons, Billy Wynn, age 11, and Ricky Wynn, age 13, and Charles Lamb, age 13, a friend of the two boys, were present in the apartment at that time.

Prior to the shooting, Effie Wynn had been sitting on a bed, facing a television set and eating Fritos, Billy and Ricky were watching television, and Charles Lamb was talking with the two brothers.

Defendant entered the apartment shortly after Charles Lamb arrived. Charles described his entry as follows, 'the door opened all of a sudden and Mr. Wynn came in.' Charles testified that when defendant entered the apartment he had a gun in his hand, and he was holding it down by his side. He saw defendant standing by his wife's bed, still holding the gun. He further testified, 'Then we was just talking * * * and we heard a big boom, and I started to turn around and the gun was up, you know, up, not on the side. And Mrs. Wynn was falling back on the bed.' According to Charles, when he turned around to look at what had occurred, he saw the gun pointed at Mrs. Wynn's stomach.

Charles indicated that prior to the shooting, defendant and his wife were 'talking quiet.' He remembered they were talking about the car, but he did not remember what was said. He recalled having previously seen the defendant with his gun. After hearing the shot, he ran out of the apartment.

Billy Wynn testified that his father had entered the apartment carrying his gun in his right hand and his fiddle in his left. His father went to a back room, reentered the bedroom and then went to the kitchen. Billy did not see his father reenter the bedroom, prior to the shooting, but he did hear his father say, 'I have been driving around and around the block,' and his mother respond that defendant 'could drive around and around the block all he wanted.' He did not see his mother shot, but when he heard the gunshot he 'got up, kissed Mother, and ran.'

Ricky Wynn testified that when his father entered the apartment on the night of the shooting, he was carrying only his gun. After defendant entered the apartment, he 'cocked the gun, cocked it back, and then he uncocked it and went over to the bed and cocked it down, * * *' Ricky's testimony of an overheard conversation between his mother and father was essentially similar to that of his brother. He stated his mother said, 'Just go ahead and drive around the block. Who cares.' He did not see his mother shot. After hearing the sound, he looked at his mother, saw she was bleeding and ran out. Ricky testified that he did not pay any attention to the gun, or his father at that point.

The death certificate of Effie Wynn was offered into evidence to establish that her death resulted from a gunshot wound.

A .45 caliber Colt revolver, identified as belonging to the defendant was found by a police officer in a closet between the back bedroom and the bathroom of the apartment. At the time the revolver was found, there was one spent cartridge in the cylinder, and it had recently been fired. Ricky Wynn testified that the Colt was the gun his father had been carrying immediately prior to his mother's being shot.

Exclusion of Evidence

Charles Lamb was the first witness called by the prosecution. He testified that the defendant had a gun in his hand when he entered the apartment. On cross-examination he stated he did not know whether defendant had something--more particularly a fiddle and a bow--in his other hand. Subsequently, the following exchange ensued: 'Q. Do you ever remember seeing Mr. Wynn bring his gun and his fiddle from the car before this? A. I seen him bring in the gun before. Q. And when he brought the gun in on that prior occasion, did he also have his fiddle at the same time? (District Attorney): I am going to object, your Honor. This is completely immaterial. What may have happened on some other occasion is irrelevant at this time. (Public Defender): Your Honor, it will show a course of conduct * * * what makes this relevant, and the offer of proof will be that the defendant customarily kept a revolver in the glove box of his car, and also kept a fiddle in his car. It was his nightly procedure before retiring for the night to take both the gun and the fiddle up to his residence. He did this consistently on a daily basis, and that this particular occasion was not inconsistent with his prior practice. The Court: Sustained. (Public Defender): When did you see Mr. Wynn with his gun before, * * * Charles? A. I don't know when it was. But he took it out to the firing range out by the dump when he was going to dump out some garbage, and he shot it out there. (Public Defender): No further questions, Your Honor.'

'Voluntary manslaughter is a crime requiring a specific intent. (Citation.) Such intent is almost invariably an inference to be drawn by the jury from circumstantial evidence. (Citation.) The character of a weapon and the consequences of its use are facts relevant to the trier of fact on the issue of intent. (Citation.)' (People v. Welborn (1966) 242 Cal.App.2d 668, 673, 51 Cal.Rptr. 644, 647, and see discussion on sufficiency of evidence, infra.)

Defendant asserts error because the proffered evidence would have tended to dispel any ominous inference that might have been drawn from the mere presence of the weapon itself, and it would have tended to negate any inference that the revolver was brought into the apartment for the express purpose of shooting someone.

There is some merit to defendant's contention that his habitual possession of the revolver would have been relevant, but the record fails to show either that the witness was capable of testifying to facts concerning that habit, or that the defendant was in any way restrained from eliciting what the witness had actually observed concerning the defendant's possession of the gun.

Specifically, the question to which the objection was sustained attempted to elicit information as to whether the witness had ever observed the defendant bring in his fiddle. At that time there was nothing before the court to indicate that the defendant had brought in a fiddle on the occasion of the fatal shooting. The witness had testified that he did not know if the defendant had anything in his other hand.

The witness was not a member of the defendant's household, and no attempt was made to lay a foundation that he had observed the glove compartment in the defendant's car, or the defendant's daily procedure. The witness' statement that he had seen the defendant bring in the gun before remained in the record, and was not the subject of any motion to strike. The record affirmatively reflects that defendant, without objection, was permitted to pursue inquiry about when the witness had previously seen the gun (without reference to the fiddle), that this inquiry was answered, and that no further questions were asked.

Whether the court merely believed inquiry concerning the fiddle was irrelevant, or whether it would have preclude the admission of any evidence of the defendant's prior possession and use of the gun, cannot be definitely determined on the record before the court.

The absence of any prejudice in the court's ruling, if it were erroneous, is established not only because defendant was given an opportunity to exhaust the knowledge of the witness then on the stand, but also because defendant's return to his wife's presence, with the gun in his hand, after depositing the fiddle, was a more damning circumstance that his original entry into the house with fiddle and gun.

No prejudicial error is found in the ruling on the prosecution's objection.

Sufficiency of the Evidence

For the purposes of this case it is necessary to consider the elements of voluntary and involuntary manslaughter. ² 'Voluntary manslaughter is a wilful act, characterized by the presence of an intent to kill engendered by sufficient provocation and by the absence of premeditation, deliberation and (by presumption of law) malice aforethought.' (People...