279 P. 145 | Cal. | 1929
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *509
The defendants were convicted of murder in the first degree without recommendation by the jury and were each sentenced to suffer the extreme penalty of the law. The offense of which they were found guilty arose out of the following state of facts, which are practically undisputed: On the twenty-fifth day of July, 1928, at or about the hour of 11:40 A.M., the three defendants entered a branch bank situated on Seventh Street, in West Oakland, within which at the time there were five persons who were either officials in charge of said branch bank or were engaged in the transaction of business with it. Upon entering the bank the defendant O'Brien drew a pistol and going to a window where one Charles McFarlin was acting as teller and was engaged in a business transaction with a customer ordered McFarlin and the customer to throw up their hands. In the meantime the other two defendants exhibited weapons and gave like orders to the other employees and customers in the bank. McFarlin did not obey promptly the order of O'Brien, whereupon the defendant Lazarus fired a shot which penetrated McFarlin's head, from the effects of which he died. The three defendants immediately fled, but were presently apprehended while in flight and were positively identified as being the three men who had taken part in the attempted holdup of the bank. They were each charged with murder by an information filed by the district attorney of the county and were in due course brought to trial thereon jointly. [1]
Upon the examination of the jurors upon their *510 voir dire the trial court undertook to conduct an examination of the prospective jurors under the provisions of the recently enacted section
[2] Counsel for the appellants urges as a further objection to the language of the court in its preliminary instructions to and inquiries made of the jurors upon their voir dire examination that it made frequent reference to what it stated to be the "demand" of the district attorney for the imposition of the death penalty in the event the jurors should find the defendants to be guilty of the crime of murder in the first degree. It is true that the trial court did at times refer to the attitude of the prosecution upon that subject as a "demand." But it is also true that such was the attitude and insistence of the prosecution with respect to this aggravated and indefensible crime. It is also true that no objection was urged at the time by counsel for the defendants against the use of that term by the trial judge, and we are unable to perceive how any prejudicial error could be predicated thereon or could now be available to the defendants under the fully proven circumstances of this particular case. With respect to the measure of punishment to be meted out to them by the verdict of the jury or sentence of the court the final instructions of the trial judge were eminently full and fair to these defendants, and whatever erroneous impressions the jury, or any member thereof, might have gained in the course of their voir dire examination we are satisfied were entirely explained and removed. [3] The foregoing statement has particular application to the objection which is now urged by the appellants to the general form and course of the voir dire examination, but which was not presented and urged while such examination was in progress, which is *512 that the defendants were not afforded an adequate opportunity to conduct an examination on their own behalf of the prospective jurors. An examination of the record, however, discloses that after the trial court had conducted and completed its own inquiry into the qualifications of the jurors through a series of questions directed to them as a whole, and also through a series of particular inquiries addressed to each individual juror, counsel for defendants was offered an opportunity to examine each prospective juror as to his or her qualifications and that he took advantage of that opportunity by an examination which occupied the better part of two days and in the course of which whenever any serious question arose as to whether the juror had not been sufficiently interrogated the trial court permitted counsel for the defendants to proceed at length with his examination of the juror, and that in no instance was he unduly hampered or interfered with in the course of such examination. With respect to any other objections which the appellants now urge to the conduct of the voir dire examination, we do not deem them to be of sufficient importance or significance to require particular designation or treatment in this opinion.
[4] The further objections which the appellants urge to the proceedings under the defendants' plea of "not guilty" and the trial thereon related to the instructions which were finally given by the trial court. It is urged that the court at the beginning of its charge to the jury admonished it "to pass upon and decide all questions of fact solely and entirely upon the evidence in accordance with the instructions as to the law." It is argued that by this statement at the inception of its charge the trial court undertook to invade the proper province of the jury in the course of a murder trial to determine by its general verdict both the law and the facts. We do not, however, find that the instructions of the trial court, when read as a whole, are subject to this obnoxious criticism, since the trial judge again and again instructed the jury not only that it was the exclusive province of each member thereof to pass upon the facts of the case, but that as to the law of the case the trial court was more than fair to the defendants in allowing the jury the fullest latitude in determining the extent to which they would give application of the law to the facts in their verdict. This is exemplified by the following statement of the court *513 to the jury: "Gentlemen of the jury: It is my duty to state to you the law applicable to this case. It is your duty, as jurors, without any suggestion from me, to pass upon and decide all questions of fact, solely and entirely upon the evidence in accordance with these instructions as to the law. The judge of this court has nothing to do with the questions of fact, the weight of evidence, or the credit you should give to any witness sworn in this case. These are matters entirely within your province and which you, as jurors, determine for yourselves. In the charge now being given to you the judge of this court in no manner or form intends or desires you to understand that he is expressing any opinion as to the guilt or innocence of any of these defendants, or upon the weight of evidence or as to the truth or falsity of the statement of any witness in this case, or as to any inference you should draw from any of the testimony, or as to whether any fact is or is not proven." [5] Notwithstanding the foregoing statement of the court at the inception of its charge to the jury it is insisted by counsel for the defendants that the effect thereof was removed by the forms of the verdict which the court submitted to the jury at the close of its instructions, one of which was the following: "We, the jury in the above-entitled cause, find the defendant . . . guilty of felony, to-wit: murder in the first degree as charged in the indictment." The obnoxious phrase which appellants' counsel finds in this form of verdict is "as charged in the indictment," but we are unable to discover in this phrase the evil effects or consequences which are sought to be assigned to it. It is a phrase which is almost universally in use in the forms of verdicts, and means no more than that the jury, in returning their verdict, are to render the same conformable to the particular offense and to the degree thereof with which the defendant has been charged and put upon his trial. In this, as in other respects, the instructions already given to the jury had fully clarified the duty which was about to be laid upon them in their consideration of both the form and extent of their verdict with relation to each of the defendants who was upon trial before them.
[6] The remaining objections which we deem of sufficient importance to require particular comment relate to the case of the defendant O'Brien, who, in addition to his plea of *514
"not guilty," was the only one of the defendants who also tendered the plea of "not guilty by reason of insanity." It is urged on behalf of this defendant that he was entitled under his said pleas to offer upon his trial upon the first of said pleas evidence as to his mental condition prior to the commission of the offense charged as bearing upon his intent at the time of his commission of said crime. The record discloses, however, that the evidence which said defendant thus desired to offer upon his plea of "not guilty" did not in any way involve the facts and circumstances immediately attending the commission of his crime, but related wholly to mental states and their causes existing and affecting the defendant during a period long preceding the date of his crime. As to this evidence the record discloses that he was allowed the fullest opportunity to present the same upon his trial upon the plea of "not guilty by reason of insanity," and his case in that respect is thus brought directly within and is fully disposed of under the recent decisions of this court in the cases of People v. Troche,
[7] The final contention of the appellants is the old and time-worn one that the court had no right under the law to inflict the death penalty upon defendants charged with capital crimes for the reason that the infliction of such penalty constitutes a cruel if not unusual punishment within the meaning of both the state and federal constitutions. It is not necessary to cite authorities for the purpose of showing that this contention has uniformly been held to be unmeritorious.
We have examined this record most carefully, in view of the elaborate argument of counsel for the defendants presented by both his original and supplementary briefs, and in *515 view also of the enormity of the defendants' alleged offense against the law. As a result of such examination we arrive at the conclusion that no prejudicial error was committed by the trial court in the course of the trial or by the jury in the form and application of their verdict of guilty without recommendation as to each and all of the defendants.
It follows that the judgment should be, and is hereby, affirmed.
Langdon, J., Curtis, J., Shenk, J., Seawell, J., and Waste, C.J., concurred.
Concurrence Opinion
I concur in this judgment but I do so solely because the evidence produced on the second hearing failed to show the existence of legal insanity. However, I am unable to come to the conclusion that a defendant may show intoxication for the purpose of reducing the degree of the crime but may not show idiocy or total insanity as a complete defense to it. It seems that on this issue of insanity we are being compelled to assume illogical and incongruous positions.
Rehearing denied.
All the Justices present concurred.