Defendant was charged with the offense of murdering one Paul Matthews. A jury trial resulted in a verdict of guilty of murder in the first degree with recommendation of life imprisonment.
On September 21, 1947, defendant, while in the United States Army Air Force, was acting as a lifeguard at March Field. In his duties he wore a bathing suit and he had several of them set aside for this purpose. One was “yellow-colored” which he wore most of the time. Defendant there met Matthews, who was a civilian employee in Riverside. With him were Ralph Fisher and Floyd Hill, who were servicemen. They ate dinner at the mess hall. Matthews was using a pass belonging to some serviceman. After “chow” the boys went to their barracks to dress in. civilian clothes. Defendant wore a yellow sweater and a pair of slacks. They all went to the city and arrived at the Q. P. Ice Cream Store.
Other witnesses said they saw Matthews coming out of the alley staggering as though he were drunk; that he was pulling off his heavy black gloves and holding his stomach with his hands; that he threw the gloves in the doorway near the Q. P. Ice Cream Store and fell to the ground; that they saw someone take a card from deceased’s pocket, the “chow pass”; that they saw someone with a “T” shirt on, appearing very nervous, and picking up the body and trying to carry it away but he was told to leave it there because an ambulance had been called; that another boy standing around there was wearing a sweater “not white,” but an “off-colored sweater.” A yellow sweater purportedly worn by defendant was received in evidence. One witness identified the defendant as the one he “believed” was wearing the sweater and that Fisher was wearing a “T” shirt; and that these men were present and in hearing distance (less than 1 yard) that night in front of the Q. P. Ice Cream Store where Matthews was lying on the sidewalk; that there were two girls who seemed to be with them; that.about 20 other people were gathered around; that the witness asked Matthews who shot him and Matthews replied, while looking at the defendant “The guy in the yellow sweater”; that the witness looked up directly at the defendant and they looked directly at one another and the defendant said nothing in response to the statement. On cross-examination the witness said that he first asked Matthews his name and what had happened; that Matthews said: “I cracked off at a couple of girls . . .; these guys wanted to be heroes”; “the guy in the yellow sweater shot me. ’ ’
A Miss Henderson testified that on the night of the shooting she and another girl were walking on 8th Street near the Q. P. Ice Cream Store and she saw Matthews and Fisher (who winked at them) and a “dark haired or complected hoy” and another boy following, whom she did not recognize, going down 8th Street toward the alley; that the girls
Her girl friend testified to about the same facts but stated that as to the boys marching up the street to the alley, the one in the back “was a different nationality”; that he “had dark hair.”
Several girls were near the alley on 7th Street. They testified that they saw two men scuffing in the alley and heard a shot fired; that they saw one man bending over and running down toward the alley on 8th Street and two other men running out of the alley leading toward Market Street.
Rosalie Ruiz, aged 17, testified she had met Matthews about one week prior to the shooting; that she met him through Fisher and saw him every day thereafter; that they skated together and on the night of September 17th, she went to the bus station with one Cramer; that it was too late to catch the last bus and Cramer saw Fisher and defendant Gonzales with three other boys go by in a car; that he called Fisher and asked him to take Rosalie home; that instead of taking her home they took her out into the hills in some cemetery. (Rosalie was in the rear seat with Fisher and Gonzales.) A question was propounded to her by the district attorney as to what happened there. Objection was made. Out of the presence of the jury counsel discussed the admissibility of the proffered evidence. It should be here noted that the district attorney in his opening statement to the jury mentioned that he expected to prove “as a motive” for the killing that Matthews was acquainted with Rosalie Ruiz; that after these boys took her to the cemetery “at least four of these boys raped Rosalie”; that later Rosalie told Matthews about it and “that there is a motive for the killing.” Counsel for defendant assigned the statement as prejudical misconduct, and claimed that such evidence did not in fact disclose any motive and that evidence of another offense was not admis
Police officers testified that they searched the alley but no gun was found. Fisher, who had on a “T” shirt, was taken into custody for questioning. He later went into the alley and came back wearing a flowered sport shirt.
Several doctors testified as to the serious condition of Matthews at the time he arrived at the hospital and as to his subsequent mental and physical condition after the operation, for the purpose of laying a foundation for the introduction of a dying declaration made by decedent. This testimony was taken by the court in the absence of the jury. On Matthews’ admission to the hospital he was in a condition of severe shock, perspiring profusely and had a weak pulse. He had an indented wound in the left abdomen and in the left posterior abdomen wound there was tissue extruding from it. In the operating room an excision was made under spinal anesthesia.
- In disposing of the question presented the trial court remarked that the purpose of the preliminary examination— when the foundation is sought to be laid for a dying declaration, is to let the court ascertain whether there is anything of a substantial nature to be submitted to the jury and if the court finds that there is, the evidence is admitted, and the jury is supposed to weigh it just as they do other evidence, with the understanding that the belief of impending death existed, i. e., with the instruction to the jury that it shall determine from the evidence whether or not the statements were made under sense of impending death and if so the jury may consider them; otherwise, it shall disregard them. Defendant failed to bring up the instructions given or refused as a part of the record on appeal.
Thereafter the jury were recalled and the evidence above set forth was, over objections, restated to the jury and the People rested.
Counsel for defendant then introduced evidence to show, as indicated by his opening statement to the jury, that Fisher and Matthews had been buddies; that they went to March Field on the night of the 20th and stayed there; that they met Gonzales, whom Matthews had known for a week or two; that they played pool, went swimming and laughed and joked
Another witness who accounted for defendant’s presence in front of the Q. P. Ice Cream Store all during the shooting episode had previously told the police, according to their reporter, that he saw Matthews, Gonzales, Fisher and Hill arguing in front of the Q. P. Ice Cream Store the evening of the shooting; that Fisher said: “Let’s all four of us go into the alley—settle this if you want to fight”; that Fisher and Matthews were in the lead and were followed by Gonzales and Hill; and that Matthews was putting on his gloves. A statement of these related facts was signed by the witness and offered in evidence by way of impeachment.
A police officer testified that while in the emergency hospital, shortly after the shooting, he heard Matthews say “he didn’t know” who shot him; that he asked Mm how it happened and he said he met two boys and two girls previously that day and that he tried to “pick up” one of the girls; that later he met the two men in the alley on 8th Street and one of these boys pulled the gun and shot him; that he described the two boys and said the one “with a yellow tie” shot Mm.
Defendant Gonzales, aged 19, of Spanish, Portuguese and French descent, admitted that he wore the yellow bathing suit in evidence prior to and subsequent to the day of the shooting but claimed he did not wear it on that day. He then testified about Ms activities and those of the two claimed strangers.
Fisher, defendant’s main witness, described the meeting in front of the Q. P. Ice Cream Store and told about the two strangers. He said he went with Matthews and the two strangers into the alley; that he was taking off his sport shirt and that Matthews was putting on a pair of gloves; that one of the strangers pulled a gun and shot Matthews; that he (Fisher) ran out the alley to 8th Street and back in front of the Q. P. Ice Cream Store; that he there found defendant Gonzales and Hill; that neither one was in the alley at any time and that soon after he arrived in front of the store Matthews came around and fell in front of it, as heretofore described. He had previously told the police that Gonzales had on a “light yellow” bathing suit on September 21st, when they were all swimming at the pool. The witness, at the conclusion of his testimony, by way of impeachment, admitted he had been previously convicted of attempted robbery. Defendant then produced several witnesses which tended to impeach the testimony of Hill.
In rebuttal, police officers were recalled and testified that defendant first told them that he did not see Matthews and Hill at the pool that day; that he first saw them in front of the Q. P. Ice Cream Store; that he was sure they were not with him when he came to town; that after questioning Fisher they returned to Gonzales and confronted him with Fisher’s statement and Gonzales then said he “lied” about that part of it because he didn’t want to “get mixed up in any mess.” One rebuttal witness testified that Fisher said, in regard to the shooting of Matthews, that “two men in a car went by and shot him” and that he, Fisher, “jumped around the corner when they shot at me. ’ ’ Another witness identified the sweater of the defendant as the one the “dark complected” person was wearing the night the four men were proceeding into the alley and the “T” shirt in evidence “resembled” the one the witness saw on Fisher that same time. Another witness, who was working at the Q. P. Ice Cream Store, testified that defendant and Fisher were not in the vicinity of the Q. P. Store when the shooting took place; that after the police were called by her she went out in front, saw Matthews lying on the sidewalk and she looked up and saw defendant and
A police detective testified that while defendant was in jail, defendant asked him what the penalty was for first degree murder; that he explained it and defendant said : ‘ How about second degree murder”; that he explained that and defendant asked: “What is the deal on manslaughter” and he explained it; that defendant then said: “Well, I would probably be better off to go in and plead guilty, because it looks like they are going to pin this on me, even though I am not guilty ... I will tell you what . . . you let me think this over and I will tell you in the morning what I intend to do. ” After being instructed as to the law the jury returned the verdict as recorded.
The first argument of defendant is that the evidence produced by the prosecution is so inherently improbable as to be incredible and unworthy of belief. He practically concedes that Hill’s testimony shows that defendant shot Matthews, but claims his testimony is entirely discredited and therefore there is no evidence pointing towards defendant’s guilt. The evidence conclusively shows that Matthews’ death was the result of a gunshot wound. Although conflicting, there is sufficient substantial evidence connecting the defendant with the shooting. The weight to be given this evidence was for the jury to determine. (Pen. Code, § 1126.) Its conclusion, therefore, in this respect, may not be disturbed on appeal.
(People
v.
Latona,
The second point is that the district attorney was guilty of prejudicial misconduct in his statement to the jury as to what he expected to prove as a motive for the commission of the murder. The presence or absence of motive is a circumstance going to the question of the guilt or innocence of the accused, and proof thereof is always admissible and often valuable and is sometimes of assistance in removing doubt and completing proof which might otherwise be unsatisfactory, and sometimes is relevant in solving a doubt as to the degree of the offense and may be material where the evidence as to the identity of the criminal is circumstantial.
Considerable latitude is allowed in the reception of evidence on the question of motive. It is settled that evidence having a direct tendency, in view of the surrounding circumstances, to prove motive on the part of a person to commit
The third contention of appellant is that the court erred in admitting into evidence the claimed dying declarations of decedent made to a police officer and a doctor as to the identity of the person who shot him, i. e., “A fellow in a yellow bathing suit. ’ ’
To be admissible in evidence as dying declarations, the statements of the decedent must have been made at a time when he had abandoned all hope of life so that he believed that death inevitably must follow. This sense of impending death may be shown in any satisfactory mode, by the express language of the declarant, or be inspired from his evident danger, or the opinions of medical or other attendants stated to him, or from his conduct, or other circumstances in the ease, all of which are resorted to in order to ascertain the state of the declarant’s mind.
(People
v.
Hoffman,
195 Cal.
In
People
v.
Pollock,
“It is the province of the trial judge to determine the sufficiency of the foundation proof which will entitle dying statements to be admitted in evidence. Unless there is an apparent abuse of discretion in that regard, the ruling of the court will not be disturbed on appeal. (1 Wharton’s Grim. Ev. 527, see. 275b; People v. Ybarra,17 Cal. 166 .) ” This language was approved in People v. Wilson,54 Cal.App.2d 434 , 441 [129 P.2d 149 ].
The court in
People
v.
Singh,
“Whatever the law may be in other jurisdictions, it is well settled in this state that it is the function of the trial court primarily to pass upon the admissibility of the alleged dying declarations and of the jury to determine whether they were in fact made under a sense of impending death, and, if so, then to determine the credibility and weight to which they are entitled.”
At the time of the declarations, decedent was in extreme pain from an abdominal gunshot wound of such a serious nature that surgery was discontinued. He was noncooperative and continued fighting the doctors after they had informed him that “if he did not cooperate they did not have much chance of saving his life.” Within a short time decedent asked for his parents. He was more or less irrational and at times could be roused by questions. There was testimony to the effect that the deceased, while lying on the sidewalk and in the presence of the defendant, made the statement in response to the question as to who shot him that it was “the guy in the yellow sweater.” There was ample evidence, other than the declarations, to identify the defendant as the person who fired the shot.
Appellant next contends that the court erred in admitting into evidence a yellow bathing suit claimed to have been worn by the defendant, and in refusing to strike the testimony of Rosalie Ruiz. The weight to be given to such evidence was a question for the jury to determine. We see no error in the rulings of the court.
Finally, it is contended that the evidence is insufficient to show that the appellant was guilty of murder in the first degree. This contention is based upon the theory that there was no evidence of premeditation and deliberation. In
People
v.
Eggers,
Murder is defined as “the unlawful killing of a human being, with malice aforethought.” (Pen. Code, §187.) To constitute murder in the first degree the homicide must have been perpetrated “by means of poison, or lying.in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, ’ or committed in the perpetration of certain enumerated felonies. (Pen. Code, § 189.) It is the exclusive province of the jury to determine from the evidence whether the killing was the willful, deliberate and premeditated act of the defendant. The sole question in this regard is whether the evidence is legally sufficient to support the verdict.
The words “deliberate and premeditated” have a well-defined meaning.
(People
v.
Bender,
From the evidence it appears that the decedent and defendant were not on unfriendly terms until a short time before the shot was fired. Someone suggested that they go into the alley to “settle their differences” and something about a fair fight. The subject of their differences, if any, was not in evidence. The deceased wore gloves, and assumed a fist-fighting position. One or two blows were struck. The witness Hill testified that deceased said something about “not pulling a knife”; that defendant “reached for something . . . toward his stomach . . . about belt high” and he saw a black object which looked like a gun, and the next thing he knew he heard a shot and started to run. In the absence of the evidence indicating a motive for the shooting, there was no substantial evidence that the defendant formed or entertained any previous ill will against the decedent or that the killing was deliberate and premeditated, as those terms are defined in People v. Bender, supra.
In
People
v.
Isby,
The judgment is modified by reducing it to murder of the second degree and as so modified is affirmed. The cause is remanded to the trial court with directions to pronounce judgment on the defendant sentencing him for the term prescribed by law for murder of the second degree. (People v. Bender, supra, p. 187; People v. Howard, supra, p. 330.)
The order denying a new trial is affirmed.
Barnard, P. J., and Mussell, J., concurred.