People v. Nixon
209 P.2d 385
Cal.
1949
Check Treatment

*1 anticipated spiked heels, not from the mat. was from danger. spiked Those heels That their who walk it privilege, responsibility is also consider peculiarities shoes consequences, be aware of they Blumberg only everything that wear. Mrs. not could see by looking mat, had defendants at the over which she could building, but she knew as walked when she entered the type wearing. she An is en- of heel “owner perceive assume that such invitee will that which titled to ordinary to him use of his own would be obvious Go., 552, 555 (Shanley v. American Olive 185 Gal. senses.” Boyal Mazzei, Cal.App.2d ; Insurance Go. P. 793] Blodgett E. 549, 586]; see, also, v. B. 552-553 [123 Dyas Go., 512-513

Shenk, J., Schauer, J., concurred. Sept. 7, 1949.] 5012. Bank. No.

[Crim. al., PEOPLE, v. ALBERT E. NIXON et Respondent, THE Appellants. *2 Spagnoli Ernest Appellants. for Fred Howser, Attorney Bowers, N. L. General, Walter Attorney Linn, Deputy General, Assistant A. and Clarence Attorney General, Respondent. for

EDMONDS, Albert E. J. Nixon and Jesse A. Murphey pleaded guilty murder, to which was determined, after a full hearing, to be of the first degree, were sentenced to death by judgments which have become (People final. Rye, v. 33 Cal.2d 688 748].) days A few [203 before date execution, fixed for Nixon and Murphey, both in the court where the sentences were pronounced, (1) moved to vacate judgments and (2) to allow the pleas withdrawal of the of guilty, upon ground involuntary. that After hearing a full at which affidavits were admitted into evi dence and examined, witnesses denied the motion. appeal An was then taken from that order.

upon [1] ground attorney general that “the motion has moved to dismiss the appeal made the court below . . . was without merit interposed solely and was for purposes delay; appeal of that taken to this court from the denial of said solely motion is frivolous and taken purposes delay.” recognizes for of He the rule that ordi- narily appellate an court will not entertain a motion to dis- grounds upon requiring miss is based an examination disposition. But, the record its as stated in Hibernia Savings Society Doran, & Loan 161 Cal. P.

526], inspection “where ... a mere record discloses appellant that no relief be this court will can to the con- unnecessary delay. (See, question, sider the save ...” also, Duffy, Williams v.

[2] However, by time the motion dismiss came upon hearing, parties the merits and had filed their briefs stipulated might it was be submitted for deci- appeal that the By stipulation, ques- argument. sion further that without attorney general’s motion has presented tion become moot and need not be determined. that, upon appellants

The sole contention denying record, its discretion the trial court abused support guilty. To pleas the motion to withdraw the by the defendants position, a and letters series affidavits they repeat the same substance, were offered in evidence. story: to have “understood” Murphey Nixon and claim would not exceed life they pleaded guilty if punishment to trial the district imprisonment, but the case went attorney penalty. insist death *3 however, equivocal stating themselves, are in

The affidavits position. Murphey declared: “He district the defendants’ [the get penalty attorney] not tell us we would not the death plead guilty he not ask it. .” but if we would for . . story “The we wanted was the same effect: reason Nixon’s to attorney guilty said if we plead to is because the district penalty.” pleaded guilty not ask for the death ... he would degree hearing to determine the of the crime The record of the punishment. to In connection no recommendation as shows that, present motion, attorney testified with the district the ., however, to them . . at representation “I made no such argument penalty.” for death I made no the hearing, the “They Murphey said: had not come By also his affidavit supreme penalty promised get we would not the out and us two the ask for it and of they would not we were told but telling kept always jail to court us from escorted officers offering to bet get penalty and was us death we would not the penalty.” get the death we would ten to one in our favor present hearing the motions: the officer testified at a death many if I had ever seen asking me “They times were they never ex- And by were. gas, what the reactions and any- getting any time of hopes at pressed anything in I said, ‘Oh, once, I just I told them thing ... death . . . penalty.’ the get will extreme you think fellows don’t just before That was up. . . . to them trying cheer [I was] day sentencing way up the of to ... the the court. ...” pleas guilty This was almost a week the entered. after of were argument the defendants’ counsel stressed lack of the explanation quite pleas guilty. reasonable for the Two plausible hearing upon the the given during answers were way motion: (1) down, “On the asked ... to when plead guilty they said, get . . ‘Well, going . are the we to penalty, guess only death but I thing that is do. The the right thing do.’”; “. the are well (2) . . when facts grasp within prosecution, the the in case of a brutal kill- ing, by many it is profession of the easier members considered to save Judge a man’s life than the before the it is before Jury .,” . . by ap- this was advice counsel pointed for accused. in original

The record case, stipulation which was being present considered as proceeding, evidence in the discloses repeatedly defendants warned serious charge; that, although nature was counsel waived, pleas accept competent refused to until counsel appointed had been and had the de- consulted with pleas fendants. After guilty hearing were made a was had to fix the hearing, of the crime. In this lasted days beyond for four full necessary went far inquiry, evidence guilt relevant to all of the elements of received. Although proceed there is conflict, some record of

ing in which the motion was denied contains substantial support Further, determination. there consider able affidavits, standing jus doubt whether the alone, would coram, tify relief in the a (Peo nature of writ of error nobis. ple Gilbert, 25 Cal.2d 422 ; Hough, P.2d In re [154 657] 24 Cal.2d 522 ; People v. Martinez, 88 Cal. 448] App.2d pointed As out this court’s prior opinion upholding judgment, “Throughout the en proceeding, tire scrupulous regard there was defend *4 ants’ rights.” (People Rye, 748].) The same careful consideration was when the motions now under review heard Judge Shepard, were Arthur C. who the denying sentenced defendants. the motions he proceeding summarized culminated in the death sentences as follows: “I did young not choose counsel [to represent just that had been to the admitted defendants] years bar. I chose counsel who had had some of criminal law They practice. and outs of the practice, who knew the ins experi- they had considerable men, were not all old had I did in cases. ence, they represented men serious and all appointed one for each appoint just counsel, I one [de- appeared had anywhere, it if, in the evidence ... fendant] degree guilty, or that they were not to the that Court would either have announced, Court was different than their would have set aside or announced a different I not. would not plea they wanted it set aside or whether any honorable Court accept plea I not think other a do they did not itself show plea a if the evidence accept would guilty . . . my but that the defendants and in mind “I have no doubt deep hoped down they pleaded guilty, when each them than the extreme they would receive less their hearts that they not have such a penalty. It would be unnatural say burden I it is not a Furthermore, cannot that hope. . . . burden, to have to be the a my mind. It is tremendous being. of a human On causes the death instrument that honestly say my mind tells me that that hand, I cannot other out . . . law should be meted any punishment under the other I have done in thing that could think of a “I cannot administration of the processes of the ordinary, reasonable protected rights properly have more law that protect- fact that we are Now, mere these defendants. they not receive should rights not mean ing their does merely It means crimes. for their nor answer punishment, crime, and did commit the be sure we should punished improperly they are not to be we should be sure ...” for the crime. order is affirmed. Spence, Traynor, J., and J., Carter, J., J., Shenk,

Gibson, C. J., concurred.

SCHAUER, J., law of this dissenting. Under the current appeals attorney general to dismiss motion of state the 502, (1948), 32 Cal.2d (People v. Shorts granted. should be ap Defendants, in their 512-513, any merit to show stay execution, failed plication reversal, ground or any probable cause appeals, appli showing made on stay execution. On for a granted have been stay should of execution cation no (People forthwith. dismissed have been appeals should *5 Shorts, supra.) subsequently filed record has not material either added to or detracted from the showing initially application stay made of execu- probable tion; cause appli- for reversal was shown on that (as necessarily cation majority) prob- held such able still exists judgments cause should be reversed. stays If the in granting execution, court erred whether through inspired by an excess caution nature penalty otherwise, acknowledge involved or it should now consistently and, stays the fact precedent, with the vacate the execution appeals. and dismiss the Sept. No. 5941. In Bank. [Sac. 1949.] al., D. R. McKINLEY Petitioners, et v. CALIFORNIA EM PLOYMENT STABILIZATION al., COMMISSION et Respondents.