People v. Williams , 32 Cal. 2d 78 ( 1948 )

SHENK, J.

The defendants were charged in Alameda County with the murder on January 19, 1947, of Arthur C. Nichols, a taxicab driver. The jury returned verdicts finding them guilty of murder of the first degree without recommendation. They appeal from the judgments imposing' the death penalty and from orders denying motions for a new trial.

In December, 1946, the defendant Bowie came to California from Louisiana with Mrs. Belle Jarrett whom he had “bailed out” of jail on some charge in that state and who was married to a man in the United States Army serving overseas. They took a room together on the second floor of a rooming house on Hannah Street in Oakland. Very soon they met the defendant Williams with whom they became friendly.

Bowie and Williams were together in San Francisco on Saturday evening, January 18, 1947. To satisfy their mutual need for money they decided to “hold up” somebody. They returned to Bowie’s rooming house in Oakland and Bówie obtained his .25 caliber pistol while Williams waited outside. Bowie and Williams then walked to a taxi stand and hired a Yellow Cab driven by Arthur C. Nichols, the victim. Nichols was directed to drive to a fictitious address in West Oakland. After a short ride the cab was stopped near 28th and Union Streets. Bowie, who was sitting in the back seat on the right, brandished the gun and declared it was a holdup, whereupon Williams, who was sitting to the left, reached forward and caught hold of Nichols. Nichols resisted and was struck on the head with Bowie’s gun. The taxicab continued in motion. At least two shots were fired.

One bullet was imbedded in the left front door of the cab, the other entered the body of Nichols and caused his death almost immediately. The defendants fled from the scene. The uncontrolled car collided with a fire box at 30th and Union, causing the alarm to sound. The driver was found dead. The left rear door of the cab was jammed open against the side of the car.

Williams spent the rest of the night with Bowie and Mrs. Jarrett. They learned early the next morning by radio that the cab driver was dead. The defendants were arrested four days later, the gun was recovered from a bureau drawer in Bowie’s room, and Mrs. Jarrett was taken into custody as a material witness.

Williams and Bowie were interrogated separately. At first Williams denied that he had been in or near the cab, claiming that he hadn’t been within 8 feet of a cab for two months. He stated that he did not see Bowie at all that night, that he visited several bars in Oakland, then went home and slept until 9 o’clock Sunday morning. He changed his story when he was confronted with the fact that his fingerprints were found on the left rear door of Nichols ’ cab. He then said that he saw Bowie riding in the cab, that Bowie stopped the cab and that he, Williams, rode with him a few blocks, got out, and Bowie rode away. Two statements were made by Bowie which were not introduced in evidence. He made another statement after hearing in Williams’ presence the reading of a statement by Williams in which the latter admitted that he told the driver to “hurry up and give me your money,’’ but in that statement Williams sought to lay the entire blame on Bowie for the homicide. Bowie’s third statement developed the facts substantially as above outlined, with the further explanation to the effect that the first bullet was discharged accidentally when he was getting out of the cab and the left rear door swung back against his right arm and knocked the gun out of his hand; that Williams who was already out of the cab picked up the gun, ran alongside and fired a shot in the direction of the driver. Bowie’s testimony at the trial was substantially to the same effect. Williams testified that he was in the cab with Bowie; that he intended going to a birthday party on Adeline Street; that he didn’t know Bowie had a gun; that he didn’t see the gun until the time of the trial, but that he heard a shot and saw flame issuing as from a gun. It was conclusively established that the homicide occurred in the course of an attempted robbery in which both defendants participated, an unquestionable case of first degree murder (Pen. Code, § 189). In fact guilt was and is conceded. The effort of each defendant was directed toward placing the blame on the other in order to influence a recommendation of leniency for himself. The alleged errors relied on are claimed to be prejudicial in that they adversely affected the particular defendant’s chance for such a recommendation.

The first alleged error is concerned with the examination of the witness Belle Jarrett who, at the request of the prosecuting attorney, was permitted by the court to sit facing the jury but with her back toward some of the spectators in the courtroom. This appears to have been done in an effort to protect the witness from intimidation by spectators. It was represented that she had been threatened and had received a knife jab by some supposed friend of one of the defendants, stated to be Williams. It is contended that the arrangement deprived the defendants of confrontation of the witness. Defendants and their counsel moved their chairs to an oblique position from the witness. Counsel for one of the defendants accepted the offer of the prosecuting attorney to occupy the latter’s chair which was almost directly in front of the witness and he cross-examined her from that position. Counsel for the other defendant also cross-examined her and made no objection to the seating arrangement. It is argued that this change in the usual arrangement affected the chances of the defendants for recommendations of leniency. Much stress is laid upon the materiality and importance of the testimony of the witness Jarrett, but the record shows that the defendants were convicted by their own admissions in prior statements and on the witness stand, and by independent evidence other than from this witness. The seating arrangement adopted should have been avoided, but it did not deprive the defendants of the rights of confrontation and a public trial. In view of the entire record, the incident should not be held to have resulted in prejudice to the defendants.

On cross-examination the defendant Bowie was asked if he had ever been convicted of a felony. He admitted that he had been convicted in Oklahoma of the offense of importing marihuana in violation of federal law, but he denied that the conviction was of a felony. The court permitted the prosecution over objection to introduce the record of conviction which showed that Bowie had served a term of 23 months in a federal reformatory. This constituted the offense a felony under federal law (35 Stats. 1152; 18 U.S.C.A. § 541). It is claimed that in view of Bowie’s admissions the record of conviction was unnecessary and that its introduction in evidence amounted to prejudicial error. The qualified admission was in effect a denial of the felony nature and character of the judgment and justified the introduction of the record in order to establish the effect of the prior conviction.

Defendant Bowie assigns as prejudicial error the ruling of the court denying his offer to introduce in evidence his statements made to officers prior to the statement introduced in evidence by the prosecution. The legal basis or right for the introduction of these prior statements containing self-serving declarations is not disclosed. The order excluding them shows no error.

Prejudice is charged because of a delayed ruling of the court in admitting in evidence the factual background of Bowie’s life. Objections to the introduction of such evidence were at first sustained. Later the court reconsidered its ruling and evidence on that subject was admitted. It does not appear that any relevant testimony offered in that connection was excluded.

Prejudice is assigned because of the court’s refusal at the commencement of the trial to order a daily transcript. Defendants’ counsel did not object to the ruling since at first it appeared that the trial would not be prolonged. However, the trial occupied the court days between June 23d and July 7th, and the reporter’s transcript consists of 1,100 pages. The request for a daily transcript was not renewed. During his closing argument the prosecuting attorney made reference to some testimony which he appeared to be reading from a transcript. At the close of that argument counsel for Bowie called attention to that fact, but also from his own recollection or notes he supplied additional matter which he deemed material on the point. There is no showing that either a partial or a full daily transcript was made to which the prosecution had access or which was denied the defendants. No error, misconduct or prejudice is shown in this regard.

The defendant Bowie charged that he was prejudiced by the taking of a short recess during the course of his counsel’s argument, and that upon completion thereof on the afternoon of July 3d, the court did not require the prosecuting attorney to commence his closing argument that day, even though it appeared that it could not be completed before the commencement of the holiday weekend. The court at first appeared to note no necessity for the usual afternoon recess, but it is reasonable to suppose that subsequently the convenience of the jury may have prompted a different conclusion. The next day, Friday, was a holiday and the case was continued to Monday, July 7th. The fact that the closing argument on behalf of the prosecution was to take place on the following Monday disclosed no undue advantage to the prosecution nor prejudice to the defendants. It was within the sound discretion of the trial court to govern the progress of the trial in conformity with the time element and no abuse of discretion is shown.

Defendant Bowie claims that various remarks of the trial court during the course of the trial constituted prejudicial misconduct. Fourteen occurrences are referred to. A review of the record and of each incident complained of fails to disclose any purpose to divert the course of the trial from its orderly progress. Some involved a tilt between counsel and the court about blood pressure; another was a caution to defense counsel against bantering a witness; another was a comment on the court’s failure to see anything wrong in the remark of the prosecuting attorney that the examination of the deceased’s widow was painful to her; another was an admonition in view of the imminent holiday to “get down to business”; and again, “the court is not going to continue the ease for years”; another, a remark that Bowie’s family and father were not on trial; two instances during Bowie’s examination by his counsel were rulings on objections given in the words, “Oh, let him answer”; another a ruling on an objection by the defense couched in the language, “Well, it is a wee bit argumentative”; two instances of some possible levity where the court, after a short recess, asked “May we have the stipulation that the jurors are still here?”; and when the court asked the witness Bowie if by “Frisco” didn’t he mean “West Oakland ... We call it West Oakland.” Others are of a similar nature and call for no further comment. We also include for disposition in this category the contention that the prosecution was permitted unduly to emphasize the relations between Bowie and Belle Jarrett. People v. Hidalgo, 78 Cal.App.2d 926 [179 P.2d 102], is relied on by defendant Bowie. Counsel representing him obtained a reversal of the judgment of conviction in that case because of prejudicial misconduct on the part of the district attorney. Considered singly and collectively the alleged acts of misconduct of the trial court or of the prosecuting attorney in this ease present no instance comparable in seriousness to the misconduct which resulted in a reversal in the Hidalgo case.

Finally it is contended that the trial court erroneously instructed the jury on the matter of punishment to the prejudice of the defendants. The jurors were told that if, as to either defendant, they found some extenuating fact or circumstance, it was within their discretion to relieve him from the extreme penalty; but that the discretion should be employed only if they were satisfied that the lighter penalty should be imposed, and not unless some extenuating facts or circumstances were shown.

The giving of the same or a similar instruction has been assigned as error and ground for reversal in many cases, but in none has it been held to be erroneous. The earlier eases beginning with People v. Jones (1883), 63 Cal. 168, and People v. Brick, 68 Cal. 190 [8 P. 858], were reviewed and collected in People v. Casade (Oct., 1924), 194 Cal. 679 [230 P. 9], where this court said at pages 682 and 683: “It is urged that the instruction unduly and prejudicially affected the discretion to determine the penalty which said section has exclusively reposed in the jury. But by a long line of decisions in this state it has been held that the giving of said instruction is not erroneous. In the early case of People v. Jones, 63 Cal. 168, it was held that the discretion vested in the jury by said section 190 was not an arbitrary one. The instruction complained of was taken word for word from People v. Brick, 68 Cal. 190 [8 P. 858], where it was held that the giving of the instruction was not error. This instruction was again under attack in People v. Olsen, 80 Cal. 122 [22 P. 125], and the same conclusion reached. Substantially the same instruction was under review in People v. Bawden, 90 Cal. 195 [27 P. 204], and this court following the earlier decisions declined to reopen the question. In People v. Rogers, 163 Cal. 476 [126 P. 143], alleged error was predicated on the giving of this instruction, which is again set forth word for word on page 483, and the court, referring to the earlier cases, said; ‘The law of the state thus appears to be thoroughly settled to the effect that the instruction in question is not erroneous. ’ It was likewise held not to be erroneous in People v. Harris, 169 Cal. 53 [145 P. 520], in People v. Miller, 177 Cal. 404 [170 P. 817], in People v. Wolfgang, 192 Cal. 754 [221 P. 907], and in People v. Reid, 193 Cal. 491 [225 P. 859]. Further consideration of the contention would seem to be foreclosed.” About six months after the Casade case, in People v. Bollinger (May, 1925), 196 Cal. 205 et seq. [237 P. 25], this court criticized the continued use of such instructions ; but after much discussion concluded at page 209 as follows: “In other words, we consider as settled that the giving of such instructions is not error. ’ ’ Thus in that and subsequent cases, either with or without criticism, the instruction was held not to be error. (People v. Arnold, 199 Cal. 471, 500 [250 P. 168]; People v. Smith, 13 Cal.2d 223, 228 [88 P.2d 682]; People v. King, 13 Cal.2d 521, 525 [90 P.2d 291]; People v. Smith, 15 Cal.2d 640, 650 [104 P.2d 510]; People v. Kolez, 23 Cal.2d 670 [145 P.2d 580]; People v. Lindley (1945), 26 Cal.2d 780, 793 [161 P.2d 227].) Lack of unanimity in these views did not appear until the determination in the Kolez case in 1944 where a dissent by Mr. Justice Traynor was concurred in by Mr. Justice Schauer. But in the Bindley case in 1945 Mr. Justice Schauer concurred in the decision which “adhered to the long line of decisions” (p. 794) holding that the giving of such instructions was not error. Mr. Justice Traynor concurred only in the judgment. Thus, from the time that this instruction was apparently first assigned as error in the Jones ease in 1883 down through the years to the Bindley case in 1945 this court has consistently and uniformly held that the instruction was not erroneous.

By this long line of cases it has been held without deviation that the discretion conferred upon the jury by section 190 of the Penal Code should not be arbitrarily exercised for or against a defendant, but should be influenced by the evidence in the case. This application of the term “discretion” as employed in the code section is akin to that conferred by law on a court, to be exercised not arbitrarily but to be controlled by reason and justice under the facts of the particular case. The fact that this discretion, once exercised by the jury, may not as to the penalty be disturbed on appeal is because the law has always so provided. And this was true as to the degree of the crime prior to 1927, when section 1181 of the Penal Code was amended to provide in subdivision 6 that the court on appeal should have the power to reduce the degree of the crime notwithstanding the verdict of the jury to the contrary. (People v. Howard, 211 Cal. 322, 330 [295 P. 333, 71 A.L.R. 1385].)

Aside from any question of error the condition of the evidence in this case against the defendants as the perpetrators of an unquestioned and atrocious murder is so overwhelming as to render it very unlikely that the jury would have found any other verdict even if the instruction had not been given.

The defendants were ably represented by counsel who appeared to exert every effort to protect their interests. The defendants had a full and fair trial and no ruling or incident during the trial can be said to have reacted prejudicially to their rights.

The judgments of conviction and the orders denying a new trial are affirmed.

Gibson, C. J., Edmonds, J., and Spence, J., concurred.