*1 imрosition hardly proper We case for the think demands, respondent but penalty appeal, a frivolous questions raised. we see merit in no real judgment appealed from affirmed. Houser, J., J., and concurred. Conrey, P. April 25, District, Appellate Second Division No. 2316.
[Crim. Two. 1933.] ROBERTS, Appel- PEOPLE, Respondent, v. JOHN THE lant. *2 Douglas Coger E. for Appellant.
Edwin S. and Albert Webb, Attorney-General, and Belford, U. S. Albert Deputy Respondent. Attorney-General,
WORKS, guilty P. J. Defendant was found of murder. was a filicide. That defendant The crime shot his son to plea undisputed. Under of not guilty death was his the sole firing action in defense was that his fatal shots was com- lie entered a plea guilty in self-defense. also mitted insanity. appeals He judgment reason and denying order of the trial court from an his motion for a new trial. theory appellant, of the defense that day
It previous killing pursuant and engagement, walked office his son at the business a time when into the latter then, relin- using telephone, without his that the son receiver, pointed quishing telephone auto- his hold on the pistol pulled trigger, matic but that at his father and weapon snapped discharged, then shot his son down. by appellant
The first contention made is that erroneously right him introduce evidence denied showing animosity per- feeling toward him his sisting day of continuously long and for a time before the shooting. evidence, permitted, is said that snapped would the son theory have sustained pistol father, theory supporting at thus turn self-defense. The thus father shot the premising killing presented wise, in this first arose July 26, 1932: occurred on At the close of the evidence presented by prosecution, counsel for the defense made preliminary jury. Immediately after the statement commencement of the statement counsel the defense said: going this defendant “We to show to left are children, one whom first wife and two was Earle Roberts ” *3 son], point 1893. . in . At this counsel decedent [the prosecution interrupted the statement with the re- object any proof People mark that “the to such on the immaterial, any ground open- and therefore to it would be respective ing regard”. in that The counsel statement then purpose of approached discussing the bench for the with presented, judge the situation thus and a some- colloquy lengthy then and there occurred out of the jury. During it, hearing although, strictly speaking, of the introduction of evidence on the the time for arrived, judge permitted yet not his proof. The an offer of offer to make was thus counsel then, “Well, offer, prove to that we the defendant couched: married, children, had two one of which was the de- Roberts; ceased, that the defendant left Earle his wife and Illinois, 1893', Chicago, about and went in to St. children $2,000 accumulated about and He there came here Louis. contractor; a successful and became that California he to Chicago and educated his Earle back to Rob- then went wife, having for the first she a home erts, and built married completed his son’s education was again; that Chicago, brought he then the son to Cali- Institute Armour him; son’s fornia and that the took him into business with by his con- mother and poisoned by mind had been so great been a thought sideration analysis of what avenge purpose to wrong to his mother that the son’s subsequently he wrongs father; his mother’s on his made ob- prosecutor made statements to that effect.” jection People will “The to the offer and in addition: object any not on behalf proof any statement offer of threats against in the nature deceased father ruled, italics bodily injury.” to do The court then course, supplied objection good. “I by us: think the Of I time, your at see your develops, a later defense I present I will have to view, but at the time think require you your threats.” Counsel for the proof to limit proceeded complete opening defense statement then jury. to the objection sustaining correctly
The court ruled proof. much it which could the offer of There was material, possibly been unless whole have offer was proper objection good. of course If we assume some- trial, decide, thing necessary is, seems that the wrong saying present that “at I time require you think will have to limit proof threats”, must at once remark that we the observation was What judge’s not final. we italicized above from the sufficiently entire demonstrates the statement truth of the only present ruling assertion. The then judge’s effect of the place a limitation was to statement of the jury, and it not contended that from nor, harmed, indeed, imposi- aspect All the limitation was error. tion of as to the admissibility concerning the matter as evidence to which jury wаs left sought open to address the counsel effectually Disposition judge. possible is thus when claim error occurred at the time counsel for *4 interrupted opening in his address. Immediately following the discussion brief above, quotation by is made episode appel- discussed is claimed the record and it lant from erred quotation. Appellant ruling included was on He testified that he and his the witness-stand. together time, in business had remained until
a certain “the part latter 1915, just or the of 1916. I first do not Q. recall you? the date. And did differences arise between Q. Q. A. Yes, Leading Yes, sir. And to lawsuits? A. sir. Well, you what kind A. of business Earle in? were and just Q. Well, we were into several kinds during that time. your Objeсtion tell way.” us about them was made own objection question that this last was immaterial and the error, sustained. It ruling but we is insisted that the think it been was not. We have do not see how it could for material to tell kinds of about the several If engaged. business which and had been he his son fail preliminary—and was intended as we see intended—appellant how could been shows have so nothing from the court of record which informed the trial objection The fact. sustained. Appellant following quotation in his inserts brief the “ transcript Q. Now, of the evidence: lady was with you, right? Yes, along; Q. and Earle A. came is that sir. happened occasion, Now what on that he tell did Q. Well, stopped before, said. I him, dunned as I had money, him for some At- gave he me— District [The : torney] I immaterial, may move be stricken out as please the court. I now, think defendant]: [Counsel your please—I your Honor ruling; can understand Honor’s in 1916; very year— mean back but are in we here The It Court: is not The de- of remoteness. by way ceased is not on trial. What he said other than yourself threats is immaterial. Just confine to what anything. got if he A. He said said. ‘I’ve no money money, lay and if it will don’t off that stuff ” you.’ too bad It is contended trial court here committed error same which is claimed to have prosecutor halted, by objec- occurred at the time when the tion, jury statement made to the on behalf of appellant. quotation just we have made from the brief complete. appel- is not shown from the record that expected lant’s counsel stated to court what to show interrupted the answer of which was which, attorney, indeed, that officer district well objected proper time that the at the witness stated judge said, true mere conclusions. It is as he during episode, effect, remarked earlier that what *5 way said “other It than of threats is immaterial’’. will be remembered, however, the occur- that at the close of rence, jury, while the appellant addressing. counsel was judge the made аt advocate his remark notified the final, change mind time and that was he particular as the developed. time defense was As the to discussion, now under in brief nothing there is any to to the show counsel made remonstrance as court’s language threats, with reference to he then discussed or that subject spoken, to leave, after the court discuss it. him- Indeed, any time availed counsel never at self, present so shows, opportunity far as the to brief point. respective the court their When counsel and colloquy episode, during at the bench no authori- the earlier presented ties were involved judge upon the in his to statemеnt to a limitation the evidence as the defense— n be introduced. duty of counsel for was nay, required it was they of them to save if desired point—later present reopen and to authori- necessary. ties to the if from court, Judging portions record in appellant, the brief of his counsel shown ease, colloquy bench, tried if he after the at the as were entirely judge upon satisfied with the view of the the sub- ject. Certainly, court, shows, so far the brief as was contrary. never informed to the
Under the well-known rule that the burden is appellant judgment error before can reversed, to show be disposed we have claims of error above discussed. not, however, permit We shall matters so rest. The case pitiful from enough, is view. It would be bad standpoint killing father of both if occurred pitiful degree case in self-defense. The to a the father self-defense, jury in his son not shot determined. Furthermore, nearly appellant seventy-three years age. imprisonment was sentenced to for life. Under all He these go requires shall further circumstances we than the law fairly order to demonstrate tried. things
We have said above that certain do appear reason appellant’s brief. One for a failure to show them in they appear brief do not is that the record. The two points arose last discussed above while was on the very witness-stand, lengthy and his in the record no perused we care. Counsel with meticulous them us “Well, just assertion tell about query, ’’ which way, preliminary anything own- material he expected defense, ever nor did to be shown present question whether court the right tentatively when interrupted, jury address of appellant’s counsel placed upon limit *6 appellant. throughout by what of years was the son said the that show Moreover, only fail to appellant’s, not brief does court's the trial theory cause upon not tried the was during remark of the made the address actually that the jury shows correct, was but the record рre- failed This, was so because counsel only tried. by the open sent at left them time the by the specific judge, but shown also because of situations objection to the First, record. the sustained when “Well, just your own question, us them the tell about immediately way,” examining the counsel who was Roberts, Earle right. Then, you and went on: “All Mr. part the relations, severed latter of business about right?” 1916, There was part or the first is that of opportunity the whether the court here test right saying thought testimony concern- that he the showing threats, be of for ing the son should limited a assigns sustaining objec- appellant now as error just passed upon, theory which the court had on tion wrong. Nevertheless, judge was with an “all point. On deserted the another right”, counsel occasion spoken meeting a His of son. coun- appellant had “Well, occasion, on tell said sel then query attorney To district Mr. Roberts.” made the object objection, “I conversation, to the entire peculiar ex- portion containing threat,” a leaving thus cept part to determine himself what witness of the conversa- However, a threat. awaiting tion “contained” without a objection—and it never ruling upon— on was ruled appellant proceeded: “All right-. What counsel did Roberts, on that say, Mr. occasion the nature a of ’ threat ?’ whole, unnecessary we think On the decide whether wrong, when he said judge two occasions utterances should testimony concerning the son’s trial, taking the showing threats. The limited to a of theory that together, entire record was conducted opportunity to rule He right. never had an question. Further, however, testimony tending feeling father animosity of toward the to show a younger showing limited to of threats man, who, time his death observed, be it was at the here forty-four recite the forty-five years age. or We shall testimony subject feel appellant upon of the son’s ing of animosity, including, threats made however, the part picture. the entire recital will show what an extrеme state of affairs was exhibited to the jury by the father. These are different subject: sections of the on the Father contractors, and son together entered into business in other endeavor, in They lines of 1910. severed their 1915, business part relations “the latter the first “Q. appears: of 1916”. Then this And did differences you? Yes, Q. arise A. Leading between sir. to lawsuits? Yes, A. sir.” The witness was asked whether after *7 severance of their business affairs the relations between him friendly unfriendly. and his son were “A. Unfriendly. Q. any against And did Earle ever make you? threats . . . Yes, A. sir.” Father and son in met on a road Antelope Valley 1916, in “the latter have been the forepart of 1917”. Each driving a car. “I wanted speak him, stopped I in so and road he attempted got go around me stalled in and the sand stopped. and got I stopped my After he out of car and went over to near I him car, his and asked when he was going pay gotten money me the he had out of the Lancaster Cattle I Company. a him, ... made move towards knowing that in pocket, he had a check-book his and when I made that pulled gun move toward him pointed he out and it at my head, he you and ‘If any come nearer to me I will ” Appellant thought brains out.’ blow then he “had separated. quit” May and the two In better of 1932, prob ably 18th, a little more than two months before killing, appellant waited for his son in the hall of the build ing in the office of the latter which was located. This was “I him evening. met
shortly after 6 o’clock money, and spoke paying I him me some hall and about money. no gave conversation, he had he me the usual hold him, I took course, Of I and agree then couldn’t with him if First, I asked his arm to him lead into his office. I him office, going no. took and he said office, arm, I I him towards thought and could turn some and we would go there, that he and would badly. money awfully He I settlement, of a kind as needed tight, guess go I arm kind would not in. And I held his kicking after he me; and and he me started to strike and pocket into his coat kicked me times he reached a few me pullеd me, it at and told pointed and aout revolver and I was killed stop. before the son did.” About a week Angeles, Square, Pershing in Los he and his father met building where across street from which was situated him; I him “I and stopped the son had his office. money; I was hard going pay me when he was some ‘I up some; says, and he am hard and that I had to have ” too, money.’ up, pay you After an in- and can’t terruption gave son, “I have the witness the remark money money, off stuff I got lay no don’t and you.” probably fix occasion will This the same opinion, already when somewhat similar referred to although language son, the record is not ascribed subject. some time clear Fаther killing—the length not clear record is before the engagements period—repeatedly made to meet affairs, but the son their financial did not meet discuss keep appointment “He would not engagements. feeling strong The between the two was so me.” son. never visited home of his The father latter was daughters, two one and had seventeen and married one years. father in fear life, fourteen of his be- animosity him, toward son’s “most of cause the time” “about or 1917”. deplorable showing In such this, the face of in *8 attempt on any part the absence of appellant’s counsel expected they what addition prove, to show to and in attempt present legal question to the default which the open, judge left we can see no trial had harm that could judge the said resulted from as the have to limitation testimony of thought which he the placed should be Anything son. the utterances of the more would the mass of almost have been but cumulative of unimaginable appellant’s counsel matter in record. the If thought they evidence under the law of were entitled present they testimony upon subject more the should given it. opportunity to admit and
After the had been closed prosecution case of the attorney after rested, had the district defense also testimony logically leave to a examine witness whose for People. the main case Counsel for objected attorney testimony. The district then “I said: state the court this witness I us; me to ex unknown to and if wants can counsel plain why testimony were unknown witness’ facts this game, People Therefore, being us. this ask permission, justice, reopen the case interest of purpose testimony.” Ap for receiving this witness’ pellant’s argued objection support counsel then attorney say and “I court, the district further said: People court, as an did officer of the not know of Saturday significance testimony of this until witness’ standing spot, afternoon. It is true I on am and ’’ put my can оn prove evidence to it counsel doubts word. permitted testimony given court then now granting request contended that emphasis” placed error. that “more insisted the testimony production its late than if it gone We prosecution before the rested: fail to see how over emphasis given testimony, unless was caused argument presented by counsel the defense statement, attorney district made his first and that emphasis appellant. During was favorable to argument counsel said that be unfair to it would admit the provides, at time. Section 1093 the Penal Code prosecution effect, after the chief of received, case been dеfense in a criminal has parties “The may rebutting testimony offer only, court, then unless the good reason, justice, permit in furtherance of them ’’ upon their original offer evidence case. "Under this section allowed we think the introduction of *9 386 attor- testimony. the district of belated The statements it took.
ney course gave reason” for the “good the court under argued appellant is point The next failure show inquiries to directed heading “Exclusion of inquiries experts of examine defendant.” We in the brief. out to us pointed thus are not referred to addressed, are nor experts they were are not to what told questions transcript placеs in where we referred to nearly After three objections may be found. them say: “The court however, counsel do pages argument, of the ascertainment whether inquiries directed to excluded change tissue, organic in the brain there had been an produced insanity. The syphilis, which result of prove intended to the exist that, unless ruled questions improper.” were We syphilis, these shall of ence stated, regard thus without proceed to discuss questions which supposed of the are form or character court. to the trial presented in a of determination plea In order to aid of insanity reason guilty appointed one, alienists, attоrney district three to examine testify his state of appellant and to mind. Three sane, he was one that he was testified that insane. The appellant upon argument of now under con upon portions principally is based sideration the testi experts who was of the mony opinion of one alienist, This whom appellant was sane. we shall call O., pupillary reflexes of appellant Dr. testified that light”. sluggish in their reaction to He rather “were also jerks” subject. found an absence of “knee He then conditions, observed, these because of “were private mine I them patient of would advise to have spinal fluid. He also . examination” testified: . . absolutely positive person in order whether a [A]nd syphilis you spinal is known has have to what make per puncture ? accurate. A. You should. It is not cent requires Q. should do good practice But medical Q. puncture spinal will show A. Yes. And a test that? germ syphilis present ? A. That or absent present. it is even when for. Sometimes it does show very they repeat repeated it. The say that because often does not.” will what the first examination show examination Immediately following quotation from the O., appellant says respect all Dr. “with due experts, know whether de they of them do not tissues, degenerated fendant has such condition of thе brain produce insanity”. Indeed, entire syphilis, under appellant’s argument burden on the head now inquire attempts consideration is that he halted in steps experts they some of the taken all whether necessary afflicted ascertain whether syphilis. dur *10 with Further, only subject dealt that is the ing quoted portion.of O., Dr. the the examination of pages. brief, the printed which one-half covers about two and purpose But whether experts the of the was ascertain not to appellant was syphilitic, he was a to whether but ascertain course, and the legally insane. They qualified, were all Indeed, qualifications disputed. of none of are them qualifications appellant. Being of Dr. O. were admitted qualified testify sanity insanity or appellant, they ineontrovertibly necessarily qualified were all such appellant conduct an examination of as enable would them testify upon question the ultimate at issue under appellant’s special plea. out experts, Three of four of the qualifications their disputed, not being appellant examined words, and testified he In that was sane. other effect testimony experts was, of the he syphilis whether not, or that he sane. was These observations would seem to point although answer the made appellant, the instance O., testimony point Dr. whose based, may is be pointed specific to as a illustration situation. In of the testimony doctor, addition of the which we men have above, “good tioned he also said practice that medical re quires” specimen spinal that a of the fluid should taken patient determine order to whether a is with afflicted Nevertheless, already observed, syphilis. he that testified although appellant sane, was he had specimen. taken no such testified that And he effect no uncertain terms. He always “he said has been that sane. He never has been medically legally.” either insane or The fact that experts were qualified, threе they fact that made an appellant, examination of they the fact that swore that he go sane, together was all question to show that the whether he syphilitic or not was was an immaterial in is no perhaps case. well to here that there It observe appellant was testimony in the record to effect that syphilis had ever had disease. afflicted that he There the father was that that at during the latter of his life and insane prior period time of his death and for a considerable the care of event he was in an institution devoted to confined a witness A brother of such unfortunates. “ question to him: at the trial. was addressed This [C]an symptoms or form something the particular tell us Objection was insanity father manifested?” objection was immaterial and in the brief was sustained. It is contended an witness as inquiry addressed acquaintance” father. This contention “intimate of his nothing in the unsound for the reason that there is his father after to show that he ever saw witness reply brief that became insane. is insisted only objection question should been because the allowed objection immaterial. think was that it was We Certainly, law, good. improper under having qualified expert or as an witness either acquaintance, prop and an answer it could intimate jury. erly have aided the The trial would have *11 question province his if to be been within he had ruled objection. improper, The of not without a lawsuit is game chess, a party, a not even a defendant of and no case, testimony is entitled to of a re criminal witness quired possess qualifications by law to certain before he can qualifications. testify, possess does not The who by ques present crux of the situation shown entire testify symptoms a man or can as to form of tion: How person a he never saw after he insanity demented whom of said we do decide insane? In what we have became be proper would particular inquiry now before us admittedly ac if to one who was an intimаte addressed inquired quaintance about. person of produced The a who asked witness was change demeanor been a whether there had period compared an earlier and actions at a as with certain questions without of this nature were answered one. Two “Q. objection, I re- Well, and then came this: mean with mind, spect to his whether he was more preoccupied mind more he had The on himself than before?” objected calling was for a to as conclusion Objection Yes, witness. “The Court: sustained. obvi- ously proper. The ruling calls for a conclusion.” witness,
Another expert, an was asked certain questions aсquaintance appellant. her She was sanity then if “any opinion she formed to his insanity”. or The for the ruled out testimony reason that witness, which we have in full, read failed to show she was intimate ac quaintance plain of appellant. is so that it This is unneces sary to recite her testimony here.
Judgment and order affirmed.
STEPHENS, J., Concurring. I concur. judgment concur not in parts but those opinion main wherein attorney it is de held fendant at effectively rul consented to the court’s ing the offer proof. I think the reopened showing attorney when the make offered to a through him of the son’s father’s statements to personal existing relations between them short but a tragedy. time before the anything remarks were court’s tentative, concluding with, but indefinite or said “What he other way than threats immaterial. Just confine ’’ yourself to what anything. he said While attorney matter, pressed could have rul the court’s ing enough argument intimation cared for no authority, certainly attorney and most was under no pain losing exception by accepting ruling final in the trial. right or not the court
Whether seems of little conse- quence appeal, giving very for much description complete of the father’s and son’s difficulties feelings jury. ill and mutual reached Craig, J., concurred. petition rehearing
A of this cause was denied *12 Appeal May 9, 1933, the District Court of and the follow- ing opinion then rendered thereon:
WORKS, petition rehearing appellant P. J. for In his joined concurring opinion Stephens, of treats the Justice something by Craig, brought new into the in Justice concurring The effect of the case. This view is unsound. agreed justices everything con- opinion was two concurrence, one opinion preceding in their tained They the writer exception. dissented what appellant had either opinion effect main had said to the question which present failed waived or attorney open judge district by the when the was left jury being made to interrupted address counsel. grounds upon which its writer opinion took two The main neces- was not аttempted to base the determination limiting in tes- the trial erred sary to decide whether threats. It was concerning timony the son of Stephens Craig grounds of these that Justices as to one course, presented law dissented, dissent, their main question. What writer of the the case naught. subject for upon the went opinion said through dissentients, that the reason determined, first the two opinion ten- main was not a assigned by the writer of the judge, ground refusing decide whether able did, limita- saying twice, what he in error son. placed tion to be opinion main given by the writer of the reason The second that, point to decide for the declination though said and even counsel for despite the court give opportunity decide did the court far, far and went question, went showing other than threats. the son’s conduct enough, in opinion, main fully forth set This state of affairs writing concurrence, referred to Stephens, in his and Justice stating the state parts except those the record no here made clear matter referred to. This affairs rehearing. petition ground taken because of the general appellant, the first under trials of There were two against him, in a verdict guilty, resulted plea which guilty reason special plea of not under the second taken at evidence no insanity. is obvious or overthrow uphоld affect, work either can second trial under rendered already been which the verdict *13 plea. general rehearing It is said in the for petition the in the evidence record as to the acts and conduct of the son, found threats, other than as to is in that of the record made the commencement insanity. the asser- making trial under plea In the in tion counsel are in error. All the evidence referred pro- question, main opinion, upon particular was this plea duced at of us guilty. the trial None under the of not read, rehearing, had petition before filing of the for given the testimony of issue upon the trial insanity. As opinion the writer of the main adheres 'still early upon view ground the first he set down as a reason for passing upon not judge’s trial the correctness of the two remarks as to placed upon the limitation to be say proper he thinks it something subject. more petition In his for re- hearing appellant upon the remark in naturally seizes concurring opinion reopened that “the when attorney offered showing through to make a the father’s testimony of the son’s personal to him statements existing relations between them but short time before the tragedy”. Appellant then support cites instances assertion. One of by these thus shown the record : “Q. And what kind of business were and Eаrle ini Well, A. we were into during several kinds time. Q. Well, just tell your way. us about them own [The Attorney] object District : To which we as immaterial. The Objection Court: sustained.” This matter surely does support the assertion concurring opinion. contained in the objection plainly good, pointed out the main opinion.
In petition appellant, rehearing support language quoted concurring opinion, above from the also portion quoted recites that main opinion, record ‘‘ containing question this: The Court: of remote- It is not a ness: The deceased is What he said other trial. by way yourself than of threats is immaterial. Just confine anything.” to what Then came he said witness, showing There by answer son. a threat departed nothing here to show that the expressed just the evidence before tentative view he opened. the defense was question He had then left the open, appellant’s misled, counsel could not have been the court’s remark, latest longer into a belief that no it was open, if the whole During record be considered. the entire never counsel to which objection made, single point. raised Not a occurrence had place taken during the trial either to stiffen or to judge’s relax the attitude assumed when up. first came subject. The record is a blank doubt, There no thе main mind of the writer of opinion, from judge, the early statement made that he ready at point presented time to have the *14 and discussed; nor, ap- considering record, could whole pellant’s counsel contrary have been As misled to a belief. was remarked in opinion, the main was never given an opportunity point. finally pass upon
Strange say, questions, petition rehearing, following the ruling of the trial court “ inquiry appellant: addressed to the brother of [C]an tell something us particular symptoms or form of insanity father manifested?” The immaterial, put because one of that nature cannot be acquaintance”, assigned “intimate as well as for the reasons opinion. our may The provides statute that “evidence given upon a trial” intimate opinion of “the of an ac- quaintance respecting sanity person, the mental of a (sec. reason for opinion given” 1870, Code being Civ. Proc., 10). quoted subd. The neither above opinion sanity reasons which an expected,- opinion been later itself. nor did it for the ask insanity question, presupposed by father was nothing and under the for the statute there left witness to answer.
Rehearing denied. J., Concurring.
CRAIG, J., We con- STEPHENS, denying cur in the adhere to rehearing, order but we expressed in heretofore concurring opinion views our ren- dered. petition by
A to have the cause heard in the Court, Supreme judgment District Court Appeal, Supreme May 25, Court 1933. was denied