People v. Yokum, Cr. 2684

• Decision Date: 22 October 1956
• Docket Number: Cr. 2684
• Citation: 145 Cal.App.2d 245,302 P.2d 406
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Imogene Joy YOKUM, Defendant and Appellant.

Page 406

302 P.2d 406

145 Cal.App.2d 245

The PEOPLE of the State of California, Plaintiff and Respondent, v. Imogene Joy YOKUM, Defendant and Appellant.

Cr. 2684.

District Court of Appeal, Third District, California.

Oct. 22, 1956.

Rehearing Denied Nov. 2, 1956.

Hearing Denied Nov. 21, 1956.

John J. Golden, Ukiah, for appellant.

Edmund G. Brown, Atty. Gen., by G. A. Strader, Deputy Atty. Gen., for respondent.

SCHOTTKY, Justice.

Imogene Joy Yokum was charged by indictment with the murder of her husband, Donald Alfred Yokum. The jury found her guilty of murder in the second degree and she has appealed form the judgment pronounced on said verdict and from the order denying her motion for a new trial.

Appellant does not attack the sufficiency of the evidence to support the judgment, but contends that the trial court committed the following reversible errors: (1) Refusing to give three requested instructions: CALJIC Nos. 26, 27 and 28; (2) omitting four essential instructions upon a rereading of the instructions to the jury; (3) exceeding permissible bounds when commenting on the evidence during the charge to the jury; and (4) excluding evidence. Before discussing these contentions we shall give a brief summary of the evidence as shown by the record.

On December 6, 1955, defendant, Imogene Joy Yokum, shot and killed her husband, Donald Yokum, at their residence in Willits, California. The defendant, the Yokum children and the witness Marie Lancaster were present when Donald Yokum and the witness Vernon Shuster arrived at the Yokum residence about 3:30 or 4:00 p. m. that day. Then Mrs. Yokum proceeded to prepare a meal. The two men sat down at a table and drank several glasses of wine. Mrs. Yokum also had a glass of wine. Thereafter, defendant's mother came to the Yokum yard and defendant went out and talked with her. Then defendant returned to the house and told her husband about a suggestion made by her mother that the children attend a particular Sunday School. At this proposal Donald Yokum became very angry and stated that the children were not to attend Sunday School. Mrs. Yokum testified that Mr. Yokum referred to her parents in a derogatory manner, and then she referred to his parents in a derogatory manner. Then Mr. Yokum struck or slapped defendant several times about the head and she fell. Mr. Yokum appeared to be very violent and to be striking at her violently. He was somewhat intoxicated and while striking her made the statement that 'he was going to beat the hell out of her.' Mr. Shuster intervened and succeeded in pulling Mr. Yokum away from defendant. Mrs. Yokum then left the house and was next seen by Mrs. Lancaster on the service porch at the rear of the house. The defendant was crying, appeared very upset and told Marie that she was afraid of decedent and wanted to get away so there wouldn't be any more trouble and that she was going to leave. Marie then returned to the kitchen. This was the last time anyone saw defendant until after her husband was shot.

After Marie had returned to the kitchen and from five to fifteen minutes after the scuffle between defendant and her husband, the latter was sitting or standing and talking with Shuster. Shuster stated, 'Well, I was just standing there talking to Don, and I just noticed him make a sudden lurch or dive, and I heard a shot, and he dropped.' He did not hear either defendant or her husband say anything. Marie Lancaster heard the shot, turned and saw Yokum lying on the floor and saw defendant standing with a rifle in her hand. Neither Mrs. Lancaster nor Mr. Shuster saw defendant before Donald Yokum, was shot.

Defendant testified in her own behalf that when she left the utility porch she took the gun and stated out to the front of the house to get the children and leave. Her husband had told her that he would kill her if she ever left him and she took the gun because she was afraid of him, thought that if he saw the gun he wouldn't come near her and that she did not intend to shoot anybody with it. As she approached her husband, he jumped up and started toward her. She felt terribly frightened and then the gun jarred in her hand. She did not know the gun was loaded.

When Mr. Olan Greenwood, Chief of Police of Willits, arrived at the premises shortly after the shooting, defendant and Mr. Shuster were sitting on the running board of a Model T automobile. She appeared to be somewhat disturbed but in general was fairly calm and was not hysterical. She appeared to have been drinking but was not drunk. Mr. Greenwood asked her, 'Who has been hit?' She answered, 'Oh, it's Don, Olan, I just killed the son-of-a-bitch. He's in the house and the gun's lying over there.' Mr. Greenwood entered the house, determined that Donald Yokum was dead, returned outside and she stated then, 'I hit him in the cheek, didn't I? How is he?' She kept asking, 'How is Don?'

An autopsy was performed by Dr. Smalley who determined the cause of death as being a bullet would in the head and neck. The bullet entered the left side of the face about the angle of the jaw, went into the right side of the neck and broke into fragments. From the direction of the bullet, which creased decedent's shoulder, it appeared to Dr. Smalley that the decedent had thrown up his shoulder in an apparent attempt to guard against the bullet.

Appellant contends that the court erred in refusing to give three instructions offered by her. The substance of these was as follows: (a) CALJIC No. 26 states that where the evidence is susceptibel of two constructions, it is the jury's duty to adopt that construction which points to the defendant's innocence; (b) CALJIC No. 27 states that where circumstantial evidence is relied upon as proof of guilt to justify a conviction, the facts or circumstances must not only be entirely consistent with the theory of guilt but must be inconsistent with any other rational conclusion; (3) CALJIC No. 28 states that each essential fact in a chain of circumstances must be proved beyond a reasonable doubt.

Appellant contends that such instructions are required where there are issues, the proof of which depends upon circumstantial evidence, and that here defendant's intent and state of mind could not be directly perceived or proved without any inferences or presumptions, and so the proof of her intent and state of mind necessarily depended upon circumstantial evidence. Respondent contends that proof of defendant's guilt did not rest primarily or chiefly upon circumstantial evidence. Respondent summarizes this proof: The fact that defendant shot her husband was established by direct testimony; there were three eyewitnesses to the killing, which witnesses were Mr. Shuster, Marie Lancaster and defendant, each of whom testified at the trial. Respondent argues that there was no issue of self-defense presented at the trial because defendant testified that the shooting was accidental. Respondent claims that on the issue as to whether there existed sufficient provocation to reduce the crime to manslaughter, the prosecution established its case by direct evidence.

'Direct evidence is that which proves the fact in dispute, directly, without an inference or presumption, and which in itself, if true, conclusively establishes that fact.' Code Civ.Proc. sec. 1831. 'Indirect evidence is that which tends to establish the fact in dispute by proving another, and which, though true, does not of itself conclusively establish that fact, but which affords an inference or presumption of its existence.' Code Civ.Proc. sec. 1832.

The terms 'indirect evidence' and 'circumstantial evidence' are interchangeable and synonymous. As is well stated in People v. Goldstein, 139 Cal.App.2d 146, at page 152, 293 P.2d 495, at page 500:

'Circumstantial evidence is that which is applied to the principal fact, indirectly, or through the medium of other facts, from which the principal fact is inferred. The characteristics of circumstantial evidence, as distinguished from that which is direct, are, first, the existence and presentation of one or more evidentiary facts; and, second, a process of inference, by which these facts are so connected with the fact sought, as to tend to produce a persuasion of its truth. (Burrill on Circumstantial Evidence, 4, 5.) An inference is a conclusion as to the existence of a material fact that a trier of fact may properly draw from the existence of certain primary facts. Blank v. Coffin, 20 Cal.2d 457, 460, 126 P.2d 868. Inferences drawn from physical facts amount to circumstantial evidence. McCready v. Atlantic Coast Line R. Co., 212 S.C. 449, 48 S. E.2d 193, 196. It has said that circumstantial evidence, as distinguished from direct evidence, is testimony not based on actual personal knowledge or observation of the facts in controversy, but of other facts from which deductions are drawn, showing indirectly the facts sought to be proved. Aday v. State, 28 Okl.Crim. 201, 230 P. 280, 281.'

In the instant case appellant was charged with the murder of her husband. Murder is the unlawful killing of a human being with malice aforethought. It is true that when the evidence shows an unlawful killing to have been committed a presumption arises that the killing was done with malice aforethought and that the killing was murder. To find appellant guilty of either first or second degree murder one of the elements required to be proved was guilty intent or malice aforethought. The only direct testimony disclosed by the record upon the question of defendant's intent or state of mind at the time of the shooting was given by her. She testified that she did not intend to shoot anybody with the gun, that the gun jarred in her hand and that she did not know that the gun was loaded. Here a material and essential element consisted of defendant's state of mind at the time of the shooting, which element was necessarily shown by circumstantial evidence.

In People v. Yrigoyen, 45 Cal.2d 46,...