THE PEOPLE, Plаintiff and Respondent, v. JOSEPH BERNARD MORSE, Defendant and Appellant.
Crim. No. 7339
In Bank. Supreme Court of California
Jan. 7, 1964.
60 Cal. 2d 631 | 388 P.2d 33 | 36 Cal. Rptr. 201
Stanley Mosk, Attorney General, William E. James, Assistant Attorney General, and Jack E. Goertzen, Deputy Attorney General, for Plaintiff and Respondent.
TOBRINER, J.--This case involves an automatic appeal under
The three separate counts of the indictment charged defendant with the murder of his mother and sister and with assault upon the person of one Ellen Young. To these counts defendant entered a plea of not guilty and not guilty by reason of insanity. Finding defendant both guilty and sane, the jury imposed the death penalty for each of the murders. The trial court thereafter denied defendant‘s motions for a new trial and for reduction of penalty.
Defendant, a young man of 18 1/2 years, became involved, prior to the murders, in an incident with a Miss Young. He
Defendant then went to his home, where he lived with his mother and a 12-year-old sister who suffered from cystic fibrosis. Somewhere outside the house he picked up a rock, concealing it under his shirt. His mother let him into the house. When his mother returned to her bedroom he called to her on some pretext, anticipating that she would get out of bed and come to the bedroom door. When she opened the bedroom door he was waiting in the hall; he hit her with the rock and killed her. The struggle awoke his sister and she started “yelling or something“; he struck her; later he secured a baseball bat from the kitchen closet and beat her until she was quiet.
When defendant related this episode to the police, he said he had felt the urge to kill or “snuff” someone, a recurrent urge with him. That night he had intended to kill his mother as well as the girl on the bus. The identity of his victim was of no consequence.
After the commission of the crimes, defendant roamed the city in the family car in search of companionship, but he found none. He considered and rejected suicide; he thought, too, of the possibility of successfully disposing of the bodies and decided that it would be futile. He did not sleep at all that night but finally about 4 or 5 p.m. on Sunday he visited the home of his sister-in-law, Gail Morse, and her mother, Mrs. Keating, whom he informed that he had found his mother and sister dead. Mrs. Keating sought the assistance of a neighbor who was a police officer; he called other officers to meet him, and they escorted defendant back to investigate the crime scene. The officers found the bodies and the murder weapons, the rock and a baseball bat, on the premises just as defendant had left them.
Defendant remained phlegmatic until one of the police officers in the car transporting him to headquarters mentioned that he would give defendant a pencil and paper so that he might make notes to refresh his memory. Defendant responded: “I don‘t think that will do me any good, and
At the trial defendant recanted some of the statements he had made in his confession. He asserted that he had procured narcotic drugs in Tijuana the Saturday preceding the killing and, contrary to his earlier denial, stated that during all of that evening and the next day he had remained under the influence of benzedrine and barbiturates. He denied that he felt an urge to kill but stated that he was “bombed out” from the effects of the drugs. He claimed that he kept this fact from the police because at the time of his confession he was so shaken that he wanted to die. Defendant further testified, in substance, that the crimes were not premeditated. He said that he intended merely to steal Ellen Young‘s purse. He was induced to strike his mother by her accusations when he tripped over the doorsill that “You are going back to jail because you are messing around with dope again.” He struck his sister to silence her screams.
We consider, first, the penalty phase of the trial and explain why we have concluded that the rendition of certain instructions, the introduction of certain evidence, and the presentation of certain arguments worked prejudicial error. We then examine the guilt phase of the trial and briefly point out that defendant‘s four assertions of error lack merit.
A. The penalty trial.
The trial court instructed the jury that “Every person guilty of first degree murder shall suffer death or confinement in the State Prison for life in the sole discretion of the jury. . . . In making your determination as to the penalty to be imposed, you may, in exercising your discretion to choose between different punishments, consider as a possible consequence that the law of this State provides that a defendant sentenced either to death or life imprisonment may be pardoned or have his sentence reduced by the Governor аnd that if this defendant is sentenced to life imprisonment he may be eligible for parole at the expiration of seven calendar years. A trial judge may also reduce the penalty from death to life imprisonment.” (CALJIC No. 306 (rev.).)
The quoted instruction illustrates the last and most extreme stage in a progression of instructions in the penalty phase of capital cases. Our present concern as to the impact of the instruction compels us to review our past rulings on this subject and to make certain that the court‘s statements to the jury in its tragic task do not confuse but clarify its undertaking. Our original purpose in permitting the court to instruct the jury that, if it found for life imprisonment rather than the death penalty, the defendant could possibly be paroled,2 was to afford it the pertinent facts “to assist it in assessing the significance of a life sentence”
(People v. Purvis (1959) 52 Cal.2d 871, 885 [346 P.2d 22]).3
Although such information may havе been relevant, the instruction, abetted by the introduction of evidence as to the possibility of parole, has brought about untoward consequences to defendants. It has brought in its wake a trend of unremitting expansion in the scope of argument and evidence presented to the jury that has coincidentally produced and augurs future confusion.
The very introduction of the fact that a prisoner sentenced to life imprisonment became eligible to parole after seven years inevitably led to ramifications. Confronted with this bare instruction, defense counsel first countered by adducing evidence that the average and median sentences of defendants sentenced to life terms actually ran longer than the minimum of seven years.4
This evidence, in substance, may have induced some juries to weigh the alternative of a sentence of a particular number of years, rather than a life sentence, against the death penalty. In any event, the fear that such was the case induced defense counsel to attempt to reassure the jury that the Adult Authority properly performed its task of deciding whether a defendant should be paroled, and if so, when he should be granted parole. Thus defense counsel developed the practice of calling officials from the Adult Authority as witnesses to testify to the qualifications and background of its membership, the procedures and considerations involved in granting paroles, and the statistical showing of recidivism of prisoners released on parole.
The reaction by prosecuting attorneys to these developments took the form of an attempt to emphasize to the jury the possibility of error by the Adult Authority and the potential grievous harm that might result from the inadvertent
Concomitantly with permitting instructions as to the parole laws, this court accepted the procedure of informing the jury that the Governor could exercise the power, among other things, of reducing a death penalty to life imprisonment.5
The trend in this direction, which, as we shall develop more fully infra, may well tend to reduce the jury‘s sense of responsibility, was halted momentarily in People v. Linden (1959) 52 Cal.2d 1 [338 P.2d 397]. Linden held it improper to inform the jury about automatic appeals in death penalty cases. The present case, however, indicates that the thrust of expansion has fully resumed. Here the jury has been informed as to the trial judge‘s power to reduce a death penalty to life imprisonment.
In the recent case of People v. Purvis (1963) ante, pp. 323, 352 [33 Cal. Rptr. 104, 384 P.2d 424], we expressed serious doubt as to the reliability of statistics to show the probabilities that a sentence of life imprisonment will result in parole or to indicate the time when the Adult Authority will, if at all, grant parole. Thus far we have not been confronted with a case in which statistics and evidence have been introduced to show the probabilities of the trial judge‘s reduction of a death sentence or of the Governor‘s exercise of his power of commutation. If the present trend continues such cases surely will arise.
When we opened the door a slight crack to allow an instruction, and to admit an evidentiary showing, as to the realistic consequence of a sentence of life imprisonment, we had in mind a limited and legitimate objective. But various maneuvers have pushed the door so widely ajar that too many confusing elements have entered the courtroom. The
Before turning to a specific analysis of the case as it is now presented to us, we note the current posture of the decisions. As to the issue of presenting to the jury the possibilities of parole, California now stands in a striking minority position among other jurisdictions,6
although our earlier cases appeared more in accord with the majority.7
With regard to instructing the jury as to the trial judge‘s power to reduce sentence, prior decisions of this court, as we shall later ex-
We turn to an analysis of these two basic aspects of the problem: the instruction, evidence and argument as to the role of the Adult Authority, and the instruction as to the roles of the trial judge and the Governor.
1. Instruction, evidence and argument as to Adult Authority‘s possible grant of parole.
The Authority does not fix that period pursuant to a formula of punishment, but in accordance with the adjustment and
Hence the jury, in this whole field of crime, doеs not determine the penalty; the task of deciding the term of incarceration lies with an expert body. Yet in the instance of capital crime the jury must perform the function of defining punishment, which, in this case, includes the tremendous sanction of the death penalty.
The jury‘s task assumes formidable proportions because it far transcends the usual function of finding whether or not certain events occurred and certain consequences resulted from them. The jury in this instance performs no such circumscribed task; it must in each particular case, depending wholly on the kind of defendant and nature of facts before it, decide the issue of life or death. In reaching its crucial decision, although
The objective situation is difficult enough without blurring the functions. The function of the jury is to consider the facts surrounding the crime and defendant‘s background, and upon that basis, reach its decision. The jury should not be invited to decide if the defendant will be fit for release in the future; it should not at all be involved in the issue of the time, if any, when the defendant should be released; it should not be propelled into weighing the possible consequences of the Authority‘s administrative action.
The vice of placing such issues before the jury reaches deeper than the promulgation of confusion; it frames questions that no human mind can answer, and it, in substance, transposes the task of the Adult Authority to the jury.
The questions are unanswerable because they rest upon future events which are unpredictable. The jury‘s attention may be focused, as it was here, upon whether the Authority will release the defendant into society at some uncertain date in the future, such as “eight, nine, ten years from now.”
To propose such questions to the jury is to present to it problems that the Legislature has entrusted for solution to the Adult Authority. The Legislature established the Authority as a specialized body, aided by a trained staff, to decide such questions. It reaches its decisions after the prisoner has received treatment at a corrective institution, has been carefully supervised and has been afforded an opportunity to attempt to understand his maladjustment. From years of annotated observation of the defendant the Authority can render an informed prognosis as to his potential. The jury, on the other hand, must plunge into a judgment based upon conjecture; it must attempt to perform a function which the Legislature expressly granted to another institution and impliedly denied to it.
The final and most dangerous error of permitting the jury to consider the Authority‘s possible grant of parole is to induce it to pass judgment upon the very issue foreclosed to it and to prevent the proper body from deciding the issue at the proper time. The jury can conclude that the Authority will improperly grant defendant parole in the future; it may fear that the Adult Authority will permit a “dangerous” defendant to walk the streets; it may then foreclose the authority from ever granting parole by imposing the death penalty. The jury would thus improperly preempt the whole parole system and defeat the legislative design. The jury would then utilize the death penalty for fear that the Adult Authority will not properly perform the function that the Legislature has specifically delegated to it.10
The vices which we have described above find dramatic illustration in the prosecutor‘s argument to the jury in the instant case: “And I frankly believe, based on the evidence that we have heard here, that he is never going to change. Twelve years from now, or seven, eight, nine, ten years from
We have pointed out that the majority of other jurisdictions hold that the possibility of parole is not a proper matter for the jury‘s consideration in the instant situation. We turn to an exposition of the reasoning of some of these cases.
The leading case on the subject demonstrates that we would not be the first jurisdiction to reconsider its earlier position on the point. In a learned opinion by Chief Justice Weintraub the New Jersey Supreme Court in State v. White (1958) 27 N.J. 158 [142 A.2d 65], overruled a body of settled law that had been reaffirmed in numerous cases during an interim of over 40 years. The court in White stated that “upon a re-appraisal of the problem, we cannot escape the conclusion that the course heretofore approved is erroneous.” (P. 72 [142 A.2d].) On the merits of the issue White held that “[T]he Legislature committed to the jury the responsibility to determine in the first instance whether punishment should be life or death. It charged another agency with the responsibility of deciding how a life sentence shall be executed. The jurors perform their task completely when they decide the matter assigned to them upon the evidence before them. What happens thereafter is no concern of theirs. It is no more proper for a jury to conclude that death be the penalty because a life sentence may be commuted or the defendant paroled, than it would be for a trial judge in other criminal causes deliberately to impose an excessive sentence to frustrate the statutory scheme committing parole to another agency.” (142 A.2d at p. 76.)
Broyles v. Commonwealth (Ky. 1954) 267 S.W.2d 73 [47 A.L.R.2d 1252], involved a case in which the jury exercised the duty of fixing the sentence. The prosecutor argued to the jury that a life sentence meant the possibility of parole after eight years, that a 21-year sentence meant the possibility of parole after six years, and that defendant was eligible for parole after the expiration of one-third of any sentence of
In Williams v. State (1950) 191 Tenn. 456 [234 S.W.2d 993], the responsibility of choosing between the death penalty and life imprisonment likewise was reposed in the jury. The Tennessee Supreme Court found prejudicial error in the trial court‘s discussion of parole laws with the jury; the court emphasized that the jury could not properly inflict the death penalty only because it opposed the defendant‘s possible parole under a life sentence. (See Graham v. State (1957) 202 Tenn. 423 [304 S.W.2d 622].)
The appellate court found prejudicial error in Sukle v. People (1941) 107 Colo. 269 [111 P.2d 233], a case in which the jury, after being instructed that life imprisonment meant possible parole, rendered a death penalty verdict. The court stated that the jury was encouraged “to speculate on what the chief executive of the state, at some future time, acting pursuant to authority of law apart from the law under which the judiciary proceeds, might then conclude justice required at his hands. Prejudicial error is obvious.” (P. 235 [111 P.2d].)
In reversing a rape conviction which involved only imprisonment, and not the death penalty, as here, the court in Lawley v. State (1956) 264 Ala. 283 [87 So.2d 433], stated that “[I]n arriving at a proper sentence to be imposed on a defendant, the proportionate part thereof which probably or possibly might be deducted therefrom by the Parole Board was not a proper factor to be considered by the jury, and it is error for the court to instruct the jury as to the laws or customs governing the granting of paroles. . . . It is reasonable to assume that the jury wished to punish the defendant by having him sеrve a certain number of years in the penitentiary and in order to insure that he serve that length of
In view of these considerations we turn to the delicate problem of delineating the function of the jury in the penalty phase of the case and determining the kind of instruction that should be given to it. We have stated that enlightened legislation in California has advanced the treatment of criminals from the stage of mechanical punishment, based exclusively upon the crime, to an appraisal of the individual wrongdoer for the purpose of his possible reformation. The emphasis must be upon the individual rather than the offense; such insistence upon the importance of the individual symbolizes a basic value of our society that contrasts with a totalitarian denigration of the individual as an appendage of the state. Our insistence upon the dignity and worth of the individual must surely be strictly and steadfastly applied in the crucial context of the individual‘s life or death.
The jury decides whether the individual should be permitted to live upon the basis of a complete and careful analysis of that person as a human composite of emotional, psychological and genetic factors. The jury looks at the individual as a whole being and determines if he is fit to live. The jury is entitled to weigh psychiatric and other testimony as to his susceptibility to rehabilitation and reformation. It should not, however, attempt to appraise whether at some future date the Adult Authority may improperly release the defendant or speculate as to when he might be released.
In evolving a proper instruction for the jury, we recognize that individual jurors often entertain some ideas of parole laws and might erroneously consider the effect of such laws upon a term of life imprisonment. They may ask the trial judge for information upon the subject; it is not enough for the trial court merely to refuse the request and relegate them to ignorance. To avoid such unanswered queries and to prevent latent misconceptions, we believe the trial court, at the time of rendition of all instructions, should inform the jury in general terms that life imprisonment can result in parole but that such matters are of no concern to it.11
“So that you will have no misunderstandings relating to a sentence of life imprisonment, you have been informed as to the general scheme of our parole system. You are now instructed, however, that the matter of parole is not to be considered by you in determining the punishment for this defendant, and you may not speculate as to if, or when, parole would or would not be granted to him. It is not your function to decide now whether this man will be suitable for parole at some future date. So far as you are concerned, you are to decide only whether this man shall suffer the death penalty or whether he shall be permitted to remain alive. If upon consideration of the evidence you believe that life imprisonment is the proper sentence, you must assume that those officials charged with the operation of our parole system will perform their duty in a correct and responsible manner, and that they will not parole this defendant unless he can be safely released into society. It would be a violation of your duty as jurors if you were to fix the penalty at death because of a doubt that the Adult Authority will properly carry out its responsibilities.”
In the light of the foregoing discussion we disap-
2. Instruction as to the trial judge‘s and Governor‘s possible reduction of the death penalty.
We believe that the instruction that the trial judge has the power to reduce a death penalty to a sentence of life imprisonment may very well induce the jury to assume that its finding for the death penalty merely initiates a series of procedures which invoke a reconsideration of the penalty and which may result in its reduction to life imprisonment.
Since the jury undertakes the task of assessing the penalty in the wide latitude of absolute discretion and in the absence of statutory guide lines, the suggestion that higher authorities will review its decision must profoundly affect it. Upon the delicate scale of unbounded determination we add a new but definite weight. The impact of the instruction must necessarily weaken the jury‘s own sense of responsibility. Yet nothing should be introduced to the jury to detract from its most careful consideration of the choice of penalty. That effort should not be adulterated by the infusion of foreign and deflecting factоrs.
In previous cases we have condemned the introduction of considerations of less consequence than instructions which have brought to the jury‘s attention a postsentencing possibility that might diminish its sensitivity to its task. In People v. Linden (1959) 52 Cal.2d 1 [338 P.2d 397], we found error in the prosecutor‘s argument that, “in California we have a law that where a death penalty is imposed . . . it goes immediately to the Supreme Court of the State of California. They review your decision if a death penalty is imposed, and they determine from the law whether such a penalty is justified, or if they believe the evidence is such that only a second-degree murder was committed, or they could determine that there was prejudicial error.” (52 Cal.2d at p. 26.) In condemning this type of argument, Linden stated that “a jury should approach the tasks of finding facts and exercising discretion as to choice of penalty with appreciation that their duties are serious and that they are accountable for their decisions, not with the feeling that they are making mere tentative determinations which the courts can correct. The jury have no concern with and should nоt be informed of the automatic appeal where judgment of death is imposed, and of course they should not be misinformed (as they inferentially
While Linden relied upon two propositions, the second, and more significant, developed the danger of involving the jury in matters with which it had no concern. The court first explained that the argument misinformed the jury as to the power of this court. In particular, the contention improperly implied that this court could substitute its judgment as to choice of punishment. Thus Linden stated that “of course they should not be misinformed . . . concerning this court‘s powers.” The court‘s second and more basic point was simply that the automatic appeal in death penalty cases should be of no concern to the jury, since to inform it of the possibility of this appeal improperly diminished its own sense of responsibility.
The latter reasoning in Linden finds support in People v. Sampsell (1950) 34 Cal.2d 757 [214 P.2d 813], in which case the prosecutоr argued that “the State of California has what is known as an automatic appeal in a death case, and it is not entirely your responsibility. Your verdict must be approved in a death case by the Supreme Court of the State of California . . . to be sure that the Supreme Court is in agreement with your verdict. So it is not all your responsibility.” (34 Cal.2d at p. 762.) Of this argument the court said “the district attorney‘s remarks concerning the function of this court where an automatic appeal is taken . . . constitute reprehensible conduct which is not to be condoned.” (Id. at p. 765.)
If Linden and Sampsell condemn the argument which may diminish the jury‘s sense of responsibility, the instruction which works that result is necessarily erroneous. Words of instruction of the trial judge are more likely to effect prejudice than the words of argument of the prosecutor. Moreover, if the jury cannot be told of the automatic appeal which does not enable the Supreme Court to reduce the penalty, it should not be told of a procedure which permits the trial court to change with finality the very decision rendered by the jury.
The recent case of People v. Ashley (1963) 59 Cal.2d 339 [29 Cal.Rptr. 16, 379 P.2d 496], does not affect the rulings of Linden and Sampsell. The defendant in Ashley, an automatic
The theoretical considerations which lie behind the prohibition of the introduction of alien matters in the guilt phase of the trial may very well apply to the penalty phase. In the guilt phase the accepted rules forbid the jury from resolving doubts in favor of conviction upon the hypothesis that an appeal can cure the possible error or that the defendant may obtain parole or a pardon. Indeed, the clear weight of authority holds that the jury should not reach a compromise of the issue of guilt and find a conviction because appeal may cure this error,12
or because the Governor may grant a pardon,13
or because a defendant may obtain a light sentence or parole.14
California decisions accord with this view.15
Some cases extend this philosophy to the function of the
Thus, on the specific point of imposing the death penalty, the Supreme Court of New Jersey in State v. Mount (1959) 30 N. J. 195 [152 A.2d 343], held that the court improperly instructed the jury that its choice of the death penalty was not necessarily conclusive. The court stated that “when the trial court interrupted to stress that the jury‘s omission of a recommendation would not necessarily mean death to the defendant beсause ‘we have appeal courts and everything else, so a lot of things could happen,’ . . . it tended to dilute the jury‘s crucial sense of responsibility.” (152 A.2d at p. 351.) The North Carolina Supreme Court in State v. Little (1947) 228 N. C. 417 [45 S.E.2d 542], found prejudicial error in the prosecutor‘s argument that even if the defendant were sentenced to death there would be a 40 percent chance that his sentence would be commuted to life. (See State v. Hawley (1948) 229 N. C. 167 [48 S.E.2d 35].)
Concluding for the foregoing reasons that the instruction improperly called to the jury‘s attention the judge‘s power to reduce the death sentence to life imprisonment, we note that the instruction additionally stated that the jury could also consider the possibility that the Governor could so reduce the sentence. The vice of the latter instruction parallels that of the former. Both statements tend to diminish the jury‘s sense of obligation; they both infuse into the issue factors that do not belong there. To the extent that previous cases permit instruction or argument that the court or Governor may reduce a death sentence to life imprisonment, they erroneously permit thе importation of extraneous matter to the jury rooms; they should accordingly be disapproved.17
We have no doubt that these errors in directing the attention of the jury to the roles of Adult Authority, judge and Governor, by means of argument, evidence and instruction in the instant case, prejudicially influenced the jury. Moreover, after deliberating for one day, the jury specifically asked “to hear again the court‘s instructions re the third phase, in
In view of the prior decisions as to the subject matter of the instruction, defendant‘s failure to object to it should not foreclose his opportunity to present these issues on appeal. Such an objection at the trial level under the existing rulings would have been useless and unavailing.
In conclusion, we believe that the instructions as to the judge‘s and Governor‘s possible reduction of the death penalty tend to mislead the jury into assuming that the rendition of the penalty initiates a chain of proceedings by the court and the Governor which will achieve a reweighing of the sentence and possibly produce its nullification. The instructions and evidence of the Adult Authority‘s possible grant of parole invite speculative аrgument to the jury and surmise by it of the possible improper release of a defendant to society in the future; yet that matter does not truly lie in its province but in the expert judgment of the Adult Authority. In sum, the instructions foster the dual vices of foisting upon the jury alien issues and concomitantly diluting its own sense of responsibility.
Our rule is a minority one which we have only lately adopted. One jurisdiction has reversed its former approval of these instructions even though they had been given for a longer period than here. These erroneous instructions should be uprooted from our law before they become a verbal jungle of error; planted in the jurors’ minds, they bear their own fruit of confusion.
1. Prosecutor‘s charge of false testimony.
The court did not err in overruling a defense objection to the prosecutor‘s charge in oral argument that defendant testified falsely. In view of defendant‘s conflicting statements, the prosecutor drew a legitimate inference from the evidence that defendant falsely stated that during the weekend of the crimes he had used dangerous drugs. Such inferences, limited to the evidence adduced at trial, constitute propеr argument. (People v. Terry (1962) 57 Cal.2d 538, 562 [21 Cal.Rptr. 185, 370 P.2d 985]; People v. Lopez (1913) 21 Cal.App. 188, 191 [131 P. 104]; People v. Glaze (1903) 139 Cal. 154, 159-160 [72 P. 965].)
The prosecutor emphasized that defendant had told the police that he had not been under the influence of drugs or narcotics. At that time defendant volunteered “If I thought it would do me any good in court I would tell you I was really strung out.” Subsequently defendant testified that on the Saturday afternoon immediately preceding the crimes he had obtained a quantity of dangerous drugs in Tijuana, had taken an excessive dosage, and would not have committed the crimes if he had not been under the influence of the drugs. Yet Jack Drummond, his companion on the Saturday in question, testified that he and defendant had been together most of the day; such testimony practically nullified defendant‘s opportunity to leave the country to purchase the drugs. The only testimony in support of defendant‘s contention that he had obtained and consumed drugs that Saturday was that of a fellow tankmate, facing trial for a felony narcotics violation, who maintained that he and defendant had been in Tijuana. The prosecution, however, seriously impeached that testimony. Undеr the circumstances, the prosecution merely emphasized one reasonable interpretation of the evidence.
2. Instruction as to intoxication.
The court refused to give defendant‘s requested instruction based upon People v. Gorshen (1959) 51 Cal.2d 716, 727 [336 P.2d 492]. The instruction read as follows: “You are further instructed that expert evidence of unconsciousness resulting from voluntary intoxication is received, not as a ‘complete defense’ negating capacity to commit any crime, but as a ‘partial defense’ negating specific mental state essential to a particular crime.” (Italics added.) The court, however, instructed the jury that: “Specific intent to kill is not a necessary element of second degree murder, but is a
Without passing on the merits of the requested instruction, we believe that the complete answer to defendant‘s contention lies in his failure to adduce expert evidence of unconsciousness resulting from voluntary intoxication. In fact, the opinion of the expert witness, as implemented by thе testimony of defendant‘s acquaintances who observed his relevant behavior, defeated any possible inference of defendant‘s voluntary intoxication to the point of unconsciousness. Several witnesses testified that defendant‘s behavior in their presence during the weekend in question appeared normal.
Dr. Lentz, who later testified as an expert witness for the defense, had, as a court-appointed psychiatrist, submitted to the court a report indicating that defendant‘s asserted intoxication from drugs during the weekend “although not exculpatory, might be considered mitigating.” At the trial, however, he stated that the benzedrine and barbiturate drugs which defendant claimed to have taken would be incapable of producing toxic psychosis and that unless defendant had reached a degree of drug intoxication readily apparent to lay observers he would remain capable of calculated judgment. “People on the street would be able to say, well, there was something odd about this reaction. . . . This state, or this severity . . . would surely show to anybody.” Dr. Lentz further testifiеd that in his opinion defendant, at the time of the perpetration of the crimes, possessed the ability to premeditate and deliberate.
3. Instructions as to murder by means of lying in wait.
Although defendant contends that the evidence did not justify the court in instructing the jury that “All murder which is perpetrated by means of lying in wait is murder in the first degree,” ample evidence supports this instruction; defendant confessed to conduct which justifies it.
The jury in its discretion could reject defendant‘s version of the criminal episode as described at the trial and accept, instead, his earlier tape-recorded statements to the police. Officer Morrison verified the transcript of the tape-recorded statements as required for its introduction. (People v. Wojahn (1959) 169 Cal.App.2d 135, 146 [337 P.2d 192]; People v. Wootan (1961) 195 Cal. App.2d 481 [15 Cal.Rptr. 833].) The tape recording and transcript were admissible evidence. (People v. Stephens (1953) 117 Cal.App.2d 653, 660 [256 P.2d 1033]; People v. Wojahn, supra, p. 146.) The transcript
Defendant, in his tape-recorded confession, stated that he picked up the rock in his front yard early Sunday morning with the intent to kill someone. After his mother let him into the house and they had each retired to their respective sleeping quarters, defendant called to her, perhaps saying “Hey, come here for a second.” He waited in the dark of the bedroom corridor until she arose and opened her bedroom door; then he struck her.
The instruction concerning murder by lying in wait appropriately stemmed from these events; the record affords evidence of defendant‘s intention to kill and of his perpetration of his mother‘s murder by means of lying in wait for the opportune moment to strike. (See People v. Sutic (1953) 41 Cal.2d 483, 492-493 [261 P.2d 241]; People v. Byrd (1954) 42 Cal.2d 200, 208-209 [266 P.2d 505]; People v. Tuthill (1947) 31 Cal.2d 92, 99-101 [187 P.2d 16].)
4. Instruction as to reasonable doubt as related to the degree of the murder.
Because defendant addressed his argument principally to the question of first or second degree murder, he maintains that the court should have specifically pointed the instructions concerning reasonable doubt and circumstantial evidence to the issue of degree. Defendant did not submit instructions in this regard but nevertheless contends that “By giving the circumstantial evidence instruction, said instruction discussed the fact of the defendant‘s right to acquittal. Since this was not properly before the jury, it is the defendant‘s contention that the instructions should have been made more understandable by relating them to the question of first or second degree:” (Italics added.)
Although in criminal cases the court must instruct the jury on its own motion as to applicable general legal principles, even though the parties fail to propose such instructions, the court need not render particular instructions as to specific points unless the parties request them or they are essential to a fair trial. (See People v. Jackson (1963) 59 Cal.2d 375, 379-380 [29 Cal. Rptr. 505, 379 P.2d 937]; People v. Warren (1940) 16 Cal.2d 103, 116-117 [104 P.2d 1024].)
The general instructions as to circumstantial evidence and reasonable doubt were, moreover, implemented by the following instruction as to the degree of the crime: “When, upon the trial of a charge of murder, the jury is convinced beyond a reasonable doubt that the crime of murder has been committed by a defendant, but has a reasonable doubt whether such murder was of the first or second degree, the jury must give to such defendant the benefit of that doubt and return a verdict fixing the murder as of the second degree.” The court thus apprised the jury that it should consider not merely the issue of first degree murder or acquittal but that, in determining the degree of the crime, it should give defendant the benefit of any doubt. We cannot, therefore, conclude that defendant suffered prejudice in the court‘s instructions.
The judgment is reversed insofar as it relates to the penalty. In all other respects the judgment is affirmed.
Gibson, C. J., Traynor, J., Schauеr, J., Peters, J., and Peek, J., concurred.
MCCOMB, J., Concurring and Dissenting.----I would affirm the judgment in its entirety, to wit: (a) finding the defendant guilty of murder in the first degree and (b) fixing the penalty at death.