People v. Young

• Decision Date: 29 March 1963
• Docket Number: Cr. 7945
• Citation: 214 Cal.App.2d 641,29 Cal.Rptr. 595
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Charles Edward YOUNG, Defendant and Appellant.

Page 595

29 Cal.Rptr. 595

214 Cal.App.2d 641

The PEOPLE of the State of California, Plaintiff and Respondent, v. Charles Edward YOUNG, Defendant and Appellant.

Cr. 7945.

District Court of Appeal, Second District, Division 2, California.

March 29, 1963.

Hearing Denied May 22, 1963.

David Daar, Los Angeles, under appointment by the District Court of Appeal, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Stanley X. Cook, Deputy Atty. Gen., for respondent.

ASHBURN, Justice.

Defendant Young appeals from a judgment convicting him of voluntary manslaughter of one Clifton Lee Harris. His counsel raises the single contention that 'the trial judge refused to instruct upon the theory of justifiable homicide on attempting to prevent commission of a felony,' and thereby erred prejudicially.

The court gave certain instructions upon justifiable homicide (which were in fact explanatory of the doctrine of self defense), pertinent portions of which are set forth in the margin. ¹ Appellant's rejected requests were based upon subdivisions 1 and 2 of Penal Code, § 197: 'Homicide is also justifiable when committed by any person in either of the following cases: 1. When resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person; or, 2. When committed in defense of habitation, property, or person, against one who maniestly intends or endeavors, by violence or surprise, to commit a felony, or against one who manifestly intends and endeavors, in a violent, riotous or tumultuous manner, to enter the habitation of another for the purpose of offering violence to any person therein * * *.' Those requests are copied in footnote 2. ²

Counsel's argument in this court is that appellant, in a running fight which ended in Harris' death, was engaged in resisting an attempt to commit a felony, namely, robbery; that the court refused to submit this theory to the jury and thus deprived him of a fair trial. The prosecution's evidence would square with this theory up to a certain point where it indicates that defendant resorted to excessive violence and stabbed his opponent to death while he was lying helpless in the gutter. Defendant's own theory, his testimony, was that he continuously fought Harris to prevent his taking defendant's money from him and to compel return of it after he had snatched it from appellant's hand; also that no excessive force had been used and decedent threw and impaled himself upon appellant's knife, thus inflicting the fatal wound.

_ In examining the question of error in refusing to instruct upon defendant's theory the reviewing court must assume that the jury might have believed appellant's story and found according to his theory had appropriate instruction thereon been given. Clement v. State Reclamation Board, 35 Cal.2d 628, 643, 220 P.2d 897, 906: '[Respondents] rely on the rule that a judgment will not be reversed on appeal if there is substantial evidence to support the verdict on any theory on which it might have been reached. * * * It is not applicable, however, to a case such as this, in which the jury has been precluded by erroneous instructions from considering a valid theory upon which a result different from that actually reached might have been supported. The error in such a case is not cancelled by the fact that the jury might have found for the prevailing party on some other ground. "It is true that in determining whether or not a verdict is supported by the evidence, we must assume that the jury accepted the view most favorable to the respondent. However, in determining whether or not the instructions given are correct, we must assume that the jury might have believed the evidence upon which the [cause of action or defense of] the losing party was predicated, and that if the correct instruction had been given upon that subject the jury might have rendered a verdict in favor of the losing party." [Citations.] Where, as here, the error consisted in instructing the jury as a matter of law on a question that is one of fact on conflicting evidence, and a determination favorable to the losing party might have been made if the error had not been committed, that error is prejudicial. [Citations.]' To the same effect see, Chalmers v. Ebbert, 128 Cal.App.2d 374, 378, 275 P.2d 629; Phillips v. G. L. Truman Excavation Co., 55 Cal.2d 801, 806, 13 Cal.Rptr. 401, 362 P.2d 33.

Moreover, the trial judge cannot reject defendant's theory because he finds the supporting proof to be not credible. If there is any supporting evidence of substantiality the trial judge must accept it for purpose of instructing the jury. People v. Carmen, 36 Cal.2d 768, 773, 228 P.2d 281, 284: 'It has been held that a defendant is entitled to instructions on his theory of the case as disclosed by the evidence, no matter how weak. As so ably stated in People v. Burns, 88 Cal.App.2d 867, 871, 200 P.2d 134, 136 with ample citation of authority: 'It is elementary that the court should instruct the jury upon every material question upon which there § any evidence deserving of any consideration whatever. [Citations.] The fact that the evidence may not be of a character to inspire belief does not authorize the refusal of an instruction based thereon. [Citations.] That is a question within the exclusive province of the jury. However incredible the testimony of a defendant may be he is entitled to an instruction based upon the hypothesis that it is entirely true. [Citations.]' This language was repeated in People v. Miller, 57 Cal.2d 821, 829, 22 Cal.Rptr. 465, 372 P.2d 297. To the same effect see, People v. Carnine, 41 Cal.2d 384, 389-390, 260 P.2d 16; Daniels v. City & County of San Francisco, 40 Cal.2d 614, 623, 255 P.2d 785; Bonebrake v. McCormick, 35 Cal.2d 16, 19, 215 P.2d 728; Selinsky v. Olsen, 38 Cal.2d 102, 103, 237 P.2d 645.

Thirdly, the trial judge is bound to keep in mind the fact that a justifiable homicide connotes only the use of force which is necessary, or which reasonably appears to be necessary, to resist the other party's misconduct; that use of excessive force destroys the justification, but the question of whether there was such an excess is ordinarily one of fact for the jury to determine. (See, People v. Hubbard, 64 Cal.App. 27, 35-36, 220 P. 315; Fricke on California Criminal Law (7th Ed.), pp. 170-171; 26 Am.Jur. § 102, p. 227; § 123, p. 239; 40 C.J.S. Homicide §§ 98, 101, 110; pp. 959, 961, 977.

Appellant's contention is that he was engaged in preventing Harris from committing a robbery--the taking from defendant's person and withholding money belonging to him, doing so by the exercise of force and fear. Upon the facts entering into this question counsel are not at variance. Both sides accept as true the following facts, most of which are found only in defendant's testimony. Harris was a quarrelsome trouble maker, known generally to be such, and known to defendant to have that reputation. In the night of January 15, 1961, at about 3:30 to 4:00 a. m., the two men, Harris and Young, arrived at the Hilltop Cafe on South Broadway in Los Angeles. They sat side by side at the counter, Young ordered coffee and Harris asked him to buy some for him; this Young did. When it was served he found he did not have enough silver to pay for it and went into his pocket and brought out all the money he had; it amounted to $95, he having been paid that day. He took a ten dollar bill in his right hand and at that moment Harris without warning snatched the rest of the money from appellant's left hand. He told Harris to give it back, "don't play. I have to have my money." Harris said he would not do so and pulled out his pocket knife which had a blade from 1 7/8 to 3 inches long, which was open. He said, "If you attempt to take this money back, I'll cut your throat and your head will roll on the floor," or something like that. Young had no knife and testified that he was in fear for his life and he looked for something with which to protect himself. Harris said, 'if you attempt to take this money back, I'll cut your throat and your head will roll on the floor.' Defendant asked for his money again. 'In fact I pleaded with him,' but Harris said he was not going to give it to defendant and did not care how much he pleaded. The cook, hearing the noise, arrived and told them to 'take it outside.' Defendant told him, 'this man has my money. He took it from me just now,' and asked the cook to call the police. Harris was slowly walking toward the door and defendant attempted to hold him. Looking for some protection he picked up a butter knife, discarded it as worthless, saw a sandwich knife on the bread board behind the counter, leaned over the counter and picked it up. It was about 16 to 18 inches in length. Thereupon each of the two men adopted the strategy of holding the arm of the other in which he had the knife. In this posture they worked their way outside the front door where the controversy was resumed. Though this is not the end of the story, it affords bases for testing appellant's claim that he was engaged (initially at least) in preventing Harris from robbing him, i. e., preventing the commission of a felony.

_ Though there are a few cases in this jurisdiction which hold that a robbery is complete after a slight asportation of the loot even though it is not removed from the presence of the victim (People v. Clark, 70 Cal.App.2d 132, 133, 160 P.2d 553; People v. Beal, 3 Cal.App.2d 251, 39 P.2d 504; People v. James, 20 Cal.App.2d 88, 90, 66 P.2d 461; People v. Wellman, 141 Cal.App.2d 101, 104, 296 P.2d 82), and they are doubtless correct upon their own facts, the general rule is well established that the attempted escape of the robber with or without the loot is an integral part of a robbery and falls in the category of res gestae. People v. Boss, 210 Cal. 245, 250, 290 P. 881, 883, expounds the rule as follows: 'It is a sound principle...