*1
301
47
F.,
;
S.
Cal.2d 729
P.2d
Leonard v. Watson
[306
432]
Community Hospital,
36];
I would therefore reverse the Apr. In Bank. No. 5981. [Crim. 1957.] Respondent, PEOPLE, THE v. JOHN E. CHEARY,
Appellant.
306- Appellant. Lamb for B.
Jack Attorney General, Martin, Thomas W. Brown, G. Edmund Attorney General, Maier, Deputy and Doris H. Assistant Chief General, Respondent. Attorney for that defendant TRAYNOR, A juryreturned J. verdict fixed the degree and guilty of murder in the first a motion denied punishment at death. The trial court аppeal is death. trial and sentenced defendant new (b).) (Pen. §1239, Code, automatic. subd. supported is not Defendant contends that verdict the court’s assigns prejudicial as error He also evidence. they ground that excusing jurors prospective four on preclude their opinions that would entertained conscientious *6 of admission into evidence voting penalty, the for death the give to trial court photographs, the certain refusal improper state- allegedly requested and certain instructions, attorney. and the district ments of the court years time of the crime and at the old Defеndant is Army. deceased, the from service in home on leave was daughter, her Mrs. Nora McDonald, with Minnie lived Mrs. Inglet years is 54 old. in Mrs. Inglet, Modesto, California. good years and was in health was 84 old Mrs. McDonald in defendant in a tavern De- age. Inglet for her met Mrs. introduced cember, January, 1956. The two were defendant’s sister. n Thereafter Mrs. Inglet defendant saw company friends, in but occasions, usually on the various Inglet were alone in de- and Mrs. several times defendant that he had been intimate car. Defendant testified fendant’s that and the with but she denied testified Inglet, Mrs. attempted defendant to him, was alone last time she an unnaturаl sex act and she left her to commit force him a taxi and took home. and 19, 1956, afternoon of
On the March home in left their mother’s Modesto brother, Cheary, Lester They traveled de- a of several taverns. and made tour They driving. drank did car, and defendant fendant’s they visited, and defendant at of the taverns beer each They whiskey. nothing had to also drank testified that he evening defendant during afternoon or eat. Sometime girl. a At about 1 a. m. going to see a about made remark and his brother 20, defendant morning of March on the 99, and highway a drove Place, tavern on left Jim’s McCurdy acquainted McCurdy. Mrs. home Mrs. Iris neighbor Inglet. a friend and Mrs. and was with defendant the street point at across from stopped his car Cheary McCurdy’s remained Lester residence. Mrs. and the car went Mrs. got out of Mc- car. Defendant and door, on the when Mrs. knocked He Curdy’s residence. McCurdy answered, he identified himself. He first asked for the address of J. Reynolds, a friend McCurdy. of Mrs. McCurdy gave Mrs. him Reynolds’ Mr. address. Defendant Inglet’s then asked for Nora address. McCurdy Mrs. re- give Inglet’s fused him Mrs. address. Defendant then went next door the residence of Horace Smith. Mr. Smith told Inglet him that Mrs. lived farther down the street. Mean- McCurdy telephoned while, Inglet Mrs. Mrs. and told her looking that defendant her and that he as if acted drinking. leaving he had been After residence, Smith proceeded to the next house on the block and knocking on door. started This was the house in which Inglet and Inglet Mrs. Mrs. McDonald lived. Mrs. did not go immediately, to the door but knocking when the con- went to the tinued, she door asked defendant what he said that he wanted. Defendant wanted to talk to her and entry. Inglet open demanded refused to Mrs. the door and if go away told defendant did she would call Inglet police. attempted telephone Mrs. police, complete before she could the call, open defendant forced grabbеd her the locked door dropped arm. She from telephone receiver, broke loose grasp, defendant’s screaming out rear ran door of her house to the McCurdy. could not telephone home of Mrs. She police McCurdy phone because the party from there was on her *7 replaced had not her own telephone and she line receiver. McCurdy’s son, ran to the Bob, Smith residence and Mrs. Two in a telephoned patrol the sheriff’s office. officers car shortly and one of the thereafter, officers, arrived Mrs. Inglet, Inglet’s McCurdy entered Mrs. home. Mrs. and lying on McDonald hеr bed. They found Mrs. Her face covers were down to her bloody. waist, Her bed and was her open to below .breast. gown spring was The of her her nearby. the floor. Defendant stood had fallen to He bed McDonald. His over toward Mrs. trousers were bent was with hands held them covered unbuttoned, and he with blood. of upper back his trousers and and his shorts front The blood, later which was found be of with stained were McDonald’s. group as Mrs. Defendant’s shoes blood same jacket dresser, his on another. under one were living room, taken handcuffed, into was Defendant Another officer entered with on a chair. Lester seаted and the street had found across from Cheary he Mrs. whom brother, defendant asked, he saw When Inglet’s home. you doing said to “What are here?” Defendant then did officers, anything it, “He didn’t to do with I have it.” McCurdy He something Bob then entered the room. said and Bob he was. defendant, defendant asked who De- McCurdy previously. fendant had met Bob on several occasions and then taken Defendant his brother were officers defendant remarked that sheriff's office. Bn route military law, long girl as the was “According to as over years nothing age, that could be done him.” of there is that after had been taken to the Defendant tеstified he face cold water sheriff’s he was told to wash his office, up and that him and down front one officerswalked keep him the sheriff’s office to awake. hospital. An Mrs. was taken a examination McDonald badly bruised, her and revealed that her face was nose cheek nearly tongue her broken, bone and that was severed were placed was emergency treatment, from her mouth. After she in an oxygen tent. p.
At m on March Mrs. about 6:15 McDonald died. body pathologist. a After her was examined embalmment and many face, head, neck, about her He found bruises ribs, her three fractured a bruise оn large chest, on bruise depressions on her three small semicircular groin, her rape. that thigh. found He concluded He no evidence resulting by hypostatic pneumonia from her death caused injuries. her he intoxicated and that he that testified happened the time anything that between
did remember he was handcuffed Mrs. he left the tavern and time living that he did not Inglet’s room. He further testified Inglet’s resi- anything the drive from Mrs. about remember Cheary that he testified the sheriff’s office. Lester dence to himself; paid had for the drinks defendant during the course drinks spent had about dollars for he drinking more defendant had been evening; and that defendant McCurdy testified that heavily had. than he Bob drugged. drunk or as if he were repeated himself and acted if he had as McCurdy acted testified Mrs. thought arresting testified drinking. officer been no had drinking that defendant had been sway when he stagger did not speaking difficulty *8 not act did defendant testified that Mr. Smith walked. Inglet’s address. he asked for Mrs. drunk when explained argument attorney district jury In that he did not contend that McDonald’s death was a Mrs. premeditated urged deliberate and homicide. He that de- guilty degree grounds fendant was of first murder on the injuries that death Mrs. McDonald’s resulted from inflicted upon'her by attempt rape in an tо her or perpetration breaking entering of a burglary, In- Mrs. glet’s rape Inglet. home intent to with Mrs. correctly points prove that him out to
guilty degree grounds first murder on either of these it upon prosecution prove was incumbent to that he had specific rape Inglet’s intent to when he entered Mrs. specific rape home or that he had the intent to when he as saulted Mrs. McDonald.
Defendant contends that the evidence establishes that rape Inglet he did not have the intent to when he went Mrs. points testimony her home. He to his that had he been Inglet intimate with testimony Mrs. asserts that that expect shows that hе Inglet had reason to that would Mrs. admit him to her home and that he had no felonious intent he when knocked at her Inglet, however, door. Mrs. denied having had intimate relations defendant. Moreover, original whatever was defendant’s intent, could rea sonably forcing open infer from his the door grabbing Inglet having Mrs. after been informed her that he was specific welcome then had the intent rape.
Defendant contends that
the evidence establishes that he
specific
was so intoxicated that he did not
have
intent
rape
Inglet
either Mrs.
or Mrs. McDonald.
It is true
that if defendant was so intoxicated that he did not have
specific
guilty
intent to rape, he is not
of murder in the
degree.
(People
Burkhart,
first
v.
211 Cal.
731 [297
11];
P.
see
Vanasse,
State v.
311 attempt to mind to presence the of and that he had room; argued for both sides blame. his brother of Counsel absolve jury properly the was length, at and the matter of intoxication jury’s of The verdict on the effect intoxication. instructed not they that defendant was necessarily implies that found rape. specific intent to the so intoxicated that he did not have by amply supported the evidence. That determination is committed that the trial court Defendant contends prejudicial asking prospective jurors in the whether error they opinions preclude that entertained conscientious would penalty,” in carrying their a the death “voting for verdict point presence in the allowing argument on this extensive jurors excusing of the and four who answered jurors, in that they opinions. urges that Defendant did entertain such penalty overemphasized and that the the death was thus authority propriety trial its of the death court lent the penalty by in case. choice the between this The possible punishments degree for murder is to made first be ques during jury’s the deliberation on that not before juror recently enter held, therefore, We that who tion. him compel trial that to vote tains views formulаted before regardless what possible punishments of the two of one may at trial reveal should be the the excused. evidence Riser, 566, 1].) 575-576 (People v. 47 Cal.2d P.2d [305 excusing the error, therefore, no court’s There was jurors Although there prospective the this case. was some propriety ruling, the court’s the tenor discussion of no that the death of discussion affords reason to believe jurors that penalty overemphasized thought that the was or endorsing penalty in this case. was death More court precipitated prolonged by de the discussion was over, that the suggest and he did not discussion counsel, fendant's nearly presence it jury’s until was be out conducted terminated. ad that the trial court erred in contends photographs of the three decedent’s
mitting into evidence they ground embalmment, on the that body taken after jury. The appeal to to the emotions designed were these the admission of only objection made proper foundation for at the trial that no photographs per ground had been laid on their admission That photographs had not been identified. took son who photographs were objection properly overruled. at them pathologist who lookеd authenticated properly 312 they testified accurately portrayed what had seen. It is necessary photograph authenticate a person took testify who it (Berko be identified.
vitz v. American River Gravel Co., 191 195, Cal. 201, 202 People P. Ah 675]; Lee, v. 350, 164 [215 Cal. 352 [128 cf. 1035].) if P. Even defendant had properly present raised his pictures objection, the were Although admissible. it is gruesome error receive in evidence photographs of a homi designed primarily victim cide passions arouse the jury (People Burns, Cal.App.2d 524, 541-542 ; People P.2d P.2d 308, v. Redston, 9] [241 Cal. App.2d 490-491 P.2d 880]), such photographs they are are admissible when relevаnt to the issues before *10 probative and their the court value is not outweighed by danger prejudice the the of to (People defendant. v. Reese, 112, 582].) 120-121 P.2d 47 Cal.2d Whether the particular of a probative photograph value outweighs its a possible prejudicial question effect is to by be resolved the judicial court in the its (People trial exercise of discretion. People Reese, supra, 120; 47 Cal.2d at Burns, supra, v. Cal.App.2d at 542.) photographs question The 109 in pathologist’s admitted in connection with the testimony were injuries of regarding the extent the decedent’s the and cause being disputed by the latter a death, matter her defend photographs pathologist’s The are of the corroborative ant. help testimony and to the show extent the decedent’s Admittedly they injuries. evidence, constitute cumulative for injuries to which the pathologist the same they show testified. only among however, was one to fact, That several be (See trial by 589, court. 4 590.) StamL.Rev. considered pleasant at, they are not to look are photographs The They body resting of the show decedent ghastly. not mortuary pathologist where the made table in the aon body by except a is covered sheеt examination. and of the chest. No head, neck, center incisions or in by pathologist his examination are made visible. marks no of discretion in there was abuse We conclude pictures. these admission of refusing erred the court in to contends by requested him: following instructions
give hitting person with the hands fist or does “Normally, any in degree. in Therefore, murder order not constitute be any degree, there has to either murder, to constitute and brutal use of hands kill or such wanton to an intent
313 they would cause to indicate provocation as without an abandoned bodily injury so as to indicate death or serious ’’ 31.) Number malignant (Defendant’s Instruction and heart. the character by acts of violence death was caused “Where significance in deter- particular weapon used is of of the malice afore- the crime was committed mining whether a nature that are of such thought. employed means If the death dangerous life, as where normally they not be to would aggravating no and there are fist, is caused blows implication of malice not raise the the law will circumstances, aforethought. kill- likely kill or maim, implement
“If used is proved.” to kill is actual intent ing manslaughter unless is 32.) (Defendant’s Number Instruction being killing of a human “Manslаughter is the unlawful manslaughter, the definition kind of malice. One without voluntary manslaughter, case, this is pertinent is which quarrel upon a sudden being that is committed which 33.) Number Instruction passion.” (Defendant’s heat of refusing give these instructions. did not err in The court subject of defendant’s Voluntary manslaughter, court in its instruc fully covered 33, instruction 311A.) Defendant’s instructions 311, (CALJIG 305, tions between murder at the difference are directed element of malice afore particularly the manslaughter, adequately covered in the also Those matters were thought. 308). jury (CALJIG 301, 305, instructions court’s refusing give if the court erred Moreover, even preju error was not such defendant’s instructions *11 degree guilty of first jury found defendant The dicial. only ground urged the previously, As noted murder. that Mrs. a conviction attorney for such district the injuries upon her inflicted from death resulted McDonald’s perpetra rape her or in the attempt to in an by defendant Inglet’s entering Mrs. home breaking and burglary, a tion of perpetra If in the Inglet. Mrs. rape to the intent inflicted rape defendant attempted burglary or a tion of he is death, that caused her McDonald injuries upon Mrs. unintentionally in he even if degree murder first guilty Sutton, (People v. 17 Cal. upon injuries her. those flicted immaterial whether 397].) It is P.2d App.2d 561, [62 inherently somеthing more or or fists hands his he used dangerous.
Defendant contends that trial the court committed prejudicial error in admonishing defendant’s counsel in the presence jury. cross-examining pa Counsel was the thologist. He asked elderly whether it was not common for people apparently attempt be bedridden, to in an to show that the decedent might suffering hypostatic have been from pneumonia being injured before defendant. district The objected attorney question ground on the that it was objec irrelevant and The immaterial. court overruled the commenting, question tion, however, that “pretty for attempted broad.” several to Counsel times explain the reason for but the court question, refused permit your explanation, stating, favor, ruled “I’ve you getting Mr. but I state that think Hancock, will I are pretty into broad “I said, field.” Counsel don’t think you said, giving I am.” court a little “Well, The then I’m give you every admonition here. I want to chance to cross- question go this there’s some limit we witness, can’t immediately beyond.” replied that for Counsel appreciate admonishment from court when did not stated, court “In he did not deserve it. The then the last going to going—I’m the one that’s run this analysis, I’m that the court court.” Defendant contends sinсe criticized guid to the court counsel, jury, which looks defense skepticism upon have looked with the further ance, must however, defense The court’s remarks, efforts of the counsel. People inappropriate (see Knocke, Cal.App. were not they brought 468]), and we do believe 55, 60 P. into with the disfavor worked counsel defense instructing before prejudice Indeed, of defendant. jurors explained in a case trial court jury, great attorneys necessarily pressure are under like this attorneys the manner both on in which complimented case. they tried that both the trial court and the contends prejudicial guilty of misconduct attorney were district unsatisfactory military had an that defendant
implying long defendant, asked “How counsel record. Defendant’s attorney objected Army?” The district you been in have “strictly The court commented immaterial. that it was attorney added, district then probably speaking it is.” nothing unless to do he wants military record has “His replied counsel military record.” Defense give his entire *12 thought jury that he might “the in learning be interested background.” of his attorney some The district then made following statement, which preju- defendant cites as “Yes, you dicial his misconduct, bring miltiary out entire if yes.” backgrоund, (Italics added.) Defendant’s counsel im- mediately pursued subject asking by the district at- torney, you “Do anything military know about back- ground?” interrupted The court with the comment, “Just a moment.” Defense counsel then “I’ll stated, assign his last statement, attorney’s prejudicial district as misconduct jury-” instruct—and ask that the Court instruct court then jury disregard instructed the to the last statement the district attorney, and added the comment to defendant’s counsel “I think true, it’s if this military going man’s record is put to be before the record, attorney the district opportunity would have an to cross- question him—to cross-examine him on it.” Defense counsel did not claim that this was an incorrect statement of the but question law stated that would withdraw the if the court wished. The then following court made the statement, prejudicial which now cites as error, “Well, so question any there is no about rights of the defendant being infringed, I’ll question allow that and the answer any than that, why—as further I that, say, course, subject matter will be to cross-examination t and ca/n brought (Italics help be out.” added.) Defendant’s counsel object exception did take to this statement, and de- fendant answered question, saying, “Yes, I’ve been in Army years.” attempt six any There was no to elicit military concerning during information defendant’s record any or to introduce such at cross-examination evidence other time. attorney’s
The district insinuation that defendant’s mili- unsatisfactory improper (see tary People record was Anthony, 47]), 185 Cal. P. and the trial disregard correctly the district court admonished attorney’s In admonition, statement. view of the court’s prejudiced by do not believe that defendant was we attorney. Unfortunately, the later statement the district implication an the trial court contained similar comment attorney’s statement was therefore that in the district Coming time after ad- improper. such short its likewise disregard attorney’s statement, district how- monition ever, the certainly inadvertent, court's statement was almost *13 and previously, as noted the court’s not attention was called implication to the in its statement. of A claim miscon part ordinarily duct on the of the trial court be will not appeal considered party complains on the has unless who given the trial opportunity court an the error or to correct impression. (People Amaya, false 70, 40 Cal.2d 78 [251 cited.) P.2d and Nevertheless, cases there in view 324] of the serious nature of the offense which defendant has of been convicted we have considered the trial court’s statement. Upon reviewing record, however, we are convinced the whole prejudicial that the court’s not to defendant. statement was attorney Defendant that district com contends the prejudicial during mitted misconduct his several acts of argument summarizing the jury. to the When he was testi mony pathologist of of the regarding rape, the evidence attorney pathologist that unable to district stated the “was any been determine whether there had intercourse objected and Minnie McDonald.” Counsel misquotation.” The a “deliberate termed this statement appear deliberate, any misquotation did not court stated that summary attorney’s although possible that the district it was testimony Then, after the of the not accurate. district was record, attorney remarks be struck from urged that his and admonished the remarks stricken the court ordered the attorney them. district jury pay no attention to The jury, your of gentlemen said, “Well, ladies then to recall what doctor testified are sufficient recollections regard.” counsel did not Defense in that to, Purvis, Dr. concerning this an admonition request object and did of the this last district Although statement remark. last attempt jury an have interprеted as attorney might be accept his own mis admonition and disregard the court’s interpreted jury that the so is doubtful true, as it statement attorney’s previous request that his the district it in of view any event, record. In neither from be struck remark this attor district original statement remark nor the jury that informed court prejudicial. ney was testimony summary pathologist’s attorney’s district during counsel, the defense and later accurate, might not be patholo of the statement the actual quoted argument, his own pelvic opening area. The about injuries no gist, “I found no evidence I saw narrow vagina rather was any marks.” points attorney again ont that the district McCurdy
misstated the evidence when he asserted Mrs. pulling up that defendant his had testified trousers when McCurdy actually she entered the bedroom. Mrs. testified pants.” holding McCurdy’s testimony his “he was Mrs. trial jurors, fresh in the minds of the since the lasted only days. It is that the district unlikely, therefore, few attorney’s jury. Moreover, statement misled the object did not to this statement at the trial.
Although attorney he concedes that the district could present theory upon to the his of the case based in reasonably (People ferences drawn from the evidence v. Bur well, 744]), 44 Cal.2d 39-40 P.2d defendant con during argument tends that, jury, district attorney support drew two inferences that find no in the pull evidence. The first inference was defendant was ing up Inglet, his trousers when McCurdy, Mrs. Mrs. *14 arresting the bedroom. the officer entered This inference It a reasonable one. was uncontroverted that was defendant’s unbuttoned; McCurdy that trousers were Mrs. testified he was holding pants; his and there were blood smears on the back top and of defendant’s shorts and could trousers, which by pulling up pants have been caused defendant’s his his which were covered with blood. The second hands, inference that defendant “reached over underneath the was nightgown blankets and underneath her [Mrs. McDonald’s] grabbed by leg crawling her the and at the same time on the bed. ...” This inference was also a reasonable one. thigh marks on that have There were Mrs. McDonald’s could spring by been made and her bed fingernails, defendant’s climbing been defendant in onto could have knocked down the bed. attorney during
Two statements made the district jury gross on argument are cited as misconduct inflammatory Although ground they that the were nature. object at trial, did not to either statement them and find no error. was the we have examined One attorney’s pure, killing “the horror of reference to district speaking of the situation when Mrs. He was the situation.” McCurdy telephone would that not func Inglet found police to aid her mother could not summon tion and she replaced telephone her own had not receiver. because she of this was not description situation attorney’s The district allegedly inflammatory unreasonable. The other statement long that defendant “didn’t care who was was as [his victim] that lust as he satisfied monstrous of his.” an inference Such reasonably from could be drawn the evidence. that attorney’s
Defendant contends the district sum requirements rape mary prejudicially was erroneous. attorney specific that The district stated “the intent which is is the intent to have sexual intercourse.” When involved that it objected, court stated would instruct jury proper as to the elements of the offense at the time. attorney’s added that the district The court statement was line,” pointed defense “not out of when counsel out implied attorney that one the district cannot intend intending rape, intercourse without the court ruled sexual attorney improper. Later, remark of the district charged jury that counsels’ statements as to the court upon by jury, to be relied and the court law were not rape. light, instructions on the law of In this gave correct attorney prejudicial the district was not the misstatement misconduct. prejudicial as also cites misconduct attorney’s burglary as to the law of statement
district attorney argued: “If the de felony murder. The district rape that front door with the intent broke in fendant Degree. guilty in the First If is of Murder Inglet, he Nora door, front when he crossed smashed in the time he at the killing burglary; and the had committed line, carrying burglary, out the perpetration in the done Degree you if in the First guilty of Murder and he’s act, argument no mis find in this accept that.” We want the court admonished Moreover, the law. statement of as to the of counsel law rely on the statements concerning burglary and appropriate instructions gave *15 murder. a concerns state of misconduct final citation
The during argument attorney his the district ment of requested an ac had not for defendant jury that counsel intelligence to insult did not wish he quittal because immediately a entered for jury. of the Counsel remarks of noting that some first objection. After vigorous attorney the district interpreted as could be counsel defense disregard dis jury admonished the court argued, objection vigorous view In attorney’s statement. trict by court, it is admonition and the counsel by defense improbable attorney’s was misled the district believing statement into that defendant himself lacked faith in charge degree his defense to the of first murder. judgment denying and order a new trial are affirmed.
Gibson, J., Shenk, O. J., Schauer, J., Spence, J., and MeComb, J., concurred.
CARTER, J. I dissent. I agree cannot that the evidence is sufficient on which to predicate a verdict degree of murder of the first under the law of this state. We are not interpreting applying here or the law of Moses—“whoso sheddeth blood, by man’s man shall (Gen. blood be shed.” IX.6.) eye “And thine shall pity; not but go life shall eye for life, eye, tooth, tooth for hand for hand, foot for (Deu. foot.” XIX.21.)
We interpreting are and аpplying the law of California. Under our every law every homicide is not murder and murder is not of the degree. degree first First murder is defined in section 189 of the Penal as Code follows: “All murder perpetrated which is by means poison, lying or in wait, torture, or any other kind of willful, deliberate, premeditated killing, or which is per- committed in the petration attempt or perpetrate arson, rape, robbery, burglary, or mayhem, is murder of the first all degree; and other kinds of murders degree.” are of the second correctly As majority stated in opinion only theory upon which the homicide here could be held to be murder dеgree the first is, that it attempt was committed an in perpetrate burglary rape. From an examination of appears record there to be little doubt but that defendant beyond point intoxicated where he did not know or appreciate doing. what he was conceding But that the evi- dence support implied was sufficient to finding of the jury that he was not am intoxicated, I convinced that evidence give sufficient to rise to an inference perpetrate rape intended to Inglet on either Mrs. or Mrs. my opinion McDonald. In only rational conclusion to be reached from the reсord this case is that in a stupor perpetrated while drunken the sordid acts which resulted the death of ghastly Mrs. McDonald. It awas unprovoked unjustified terrible crime, any from point of view, I am unable to reach the conclusion from the record before us that it falls within the definition of *16 quoted degree in the
murder
the first
as defined
above
Kelley,
(People
of the Penal
[L. ANGELES, Appellant, BELRIDGE THE CITY OF LOS Respondent. (a Corporation), OIL COMPANY