People v. Howard

The defendant was charged with the murder of Victor A. Cooley. The jury returned a verdict of murder in the first degree, without recommendation. The court below denied motions for new trial and for reduction of sentence, and pronounced sentence and judgment imposing the death penalty. Defendant appeals from the judgment of' conviction and from the orders denying the said motions.

At the commencement of the trial, it appearing that the case would be somewhat protracted, two alternate jurors were duly selected, as provided by law. These alternates took the necessary oaths, assumed their places in the box with the regular jurors, and heard all of the evidence introduced upon the trial. At the conclusion of the evidence, and during the oral argument, one of the regular jurors sought the trial judge in chambers prior to the convening of court, and there disclosed to him that she personally knew two of the witnesses who had testified on behalf of the defendant in the cause, and that on account of certain facts which she personally knew concerning these witnesses, and which she disclosed to the judge, she was prejudiced against each of said two witnesses and their testimony. The judge thereupon called the attorneys for the prosecution and for the defense and also the defendant into his chambers and fully disclosed the situation to them. There was considerable discussion, in which the defendant personally took some part, concerning the situation in which the cause was placed, it

It is now contended by the defendant that, upon discovering the state of mind of the regular'juror, a mistrial should have been ordered, and that to substitute the alternate for the regular juror under such circumstances amounted to a reversible error, in that he was thereby deprived of a trial by jury as guaranteed by section 7 of article I of the Constitution. While the value and importance of the privilege thus guaranteed cannot be overemphasized, on the record now before us we cannot see how or wherein there was any invasion of the common-law right of a jury trial. The first essential of a common-law jury in criminal causes* is a jury of twelve citizens, no more nor less, drawn from the locality, duly examined and sworn to try the cause. No objection was offered to the panel in this case. The second requirement is that the jurors must be impartial. No claim is made that juror Shields, the alternate selected, was not in fact a fair and impartial person to act as a juror. While the record brought here does not contain the examination of the jurors on voir dire, it does indicate that the same proceedings were had in the selection of the alternate jurors as in the case of the first twelve who took their places in the box. We may assume that the defendant was satisfied that the alternate jurors thus selected would give him the fair and impartial trial to which he was entitled, should

While the circumstances of this case are not such as to bring it within the purview of section 1089 of the Penal Code providing for alternate jurors, we think the procedure by which the alternate juror was substituted in the place and stead of the regular juror was, at most, but an irregularity which in no way substantially affected the defendant’s rights. In the execution of the means which the lawmakers provide to enforce the guaranties of the organic law, the end to be effected must be through the adoption of a reasonable and practical method to secure attainable ends. When this has been done, nothing more can be demanded, from the very nature of things. It is not claimed that the verdict would have been any different had the alternate juror not participated in the deliberations of the jury. He was subject to the same challenge and took the same oath as the other jurors. We should assume that in all respects he obeyed his oath and that he well and truly tried all the matters in issue and rendered a true and impartial verdict in the cause. Defendant's right was to a fair and impartial jury, not to a jury composed of any particular individuals. (People v. Durrant, 116 Cal. 179 , 199 [ 48 Pac. 75 ].) The situation here presented is not one in which a waiver- of the right to a jury trial in a felony case enters into the consideration.

No case has arisen in this state, or perhaps elsewhere, precisely like the case at bar in its facts. Earlier cases, in which disqualification of a juror has been raised after verdict in criminal causes, are reviewed in People v. Duncan, 8 Cal. App. 186 [ 96 Pac. 414 ], In that case, one Bernard Sherry appeared at the trial and substituted himself as a juror in place of John H. Sherry, whose name was upon the jury list, and who had been regularly subpoenaed to attend court as a trial juror. Upon the impanelment of the jury, the name of the rightful juror was drawn, and in answer thereto the other Sherry took his place in the box and, after- due examination as to his qualifications, was accepted and sworn as a juror and acted throughout the

We find no merit in defendant’s first contention.

Prior to his untimely death, the decedent was engaged in the automobile rental business in the city of Pasadena. In the early part of January, 1928, the defendant was employed by him, and by mutual agreement went to live with the decedent and his wife. The Cooleys became estranged, and separated in September, 1928, whereupon the defendant and decedent took an apartment together. They were apparently on good terms and quite friendly. At about 12:50 A. M. on the morning of. April 17, 1929, the defendant telephoned to the Pasadena police station and stated to the officer responding to the call: “This is Jack Howard. There has been a murder committed in my apartment. I have called the ambulance. I wish you would send a couple of the boys over.” Upon arriving at the apartment the officers found the decedent sitting on the edge of the bed in a semiconscious condition. The room was in a state of disorder, personal belongings having been upset and scattered about, giving evidence of the perpetration of a robbery. The injured man was removed to the emergency hospital, and from there to the Pasadena hospital, where he was operated on to relieve paralysis resulting from a blow on the skull with a solid instrument. It was the doctor’s opinion, given at the trial, that the blow had been struck while the decedent was lying down. The decedent never regained consciousness, and passed away three days later.. Shortly after reporting the matter to the police, the defendant stated that he had no definite idea as to the identity of the perpetrator of the crime, but mentioned the name of a person who was supposed to have previously threatened the decedent’s life. At that time the defendant also stated that he had driven the decedent home from the garage on the night of the homicide

The defendant took the stand in his own behalf and related many of the matters already narrated. He reiterated his original story to the effect that he had found the apartment disordered and the decedent injured when he returned after closing the garage. He did not deny making the confession, but testified that the story therein related was concocted by him, upon suggestion of the police, in order to clear the decedent’s estranged wife, whom he claimed was innocent, and still leave himself open to no greater charge than that of manslaughter. Defendant admitted having

The defendant contends that the evidence does not warrant a verdict of first degree murder because of the asserted absence of a showing of express malice. Murder is defined as the unlawful killing of a human being with malice aforethought. (Sec. 187, Pen. Code.) Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow-creature, and implied when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart. (Sec. 188, Pen. Code.) All murder which is perpetrated by means of poison, or lying in wait, torture, or by any other kind of wilful, deliberate, and premeditated killing, or which is committed in the perpetration or attempt to perpetrate arson, rape, robbery, burglary or mayhem, is murder in the first degree; and all other kinds of murders are of the

In the present case, the prosecution relied principally on the defendant’s confession to prove his connection with the offense. If the confession be disregarded, the record is entirely destitute of evidence tending to establish the circumstances and conditions actually existing just prior to and at the time of the striking of the fatal blow. If, as urged by the People, the jury in weighing and considering the evidence might properly reject as untrue that portion of the confession wherein defendant charged the decedent with having been the aggressor in a quarrel which led up to the homicide, there remains no evidence from which it might reasonably be deduced that the killing was the result of a wilful, deliberate and premeditated intent to kill. We do not question the propriety of the jury’s action in rejecting any portion of the defendant’s evidence or confession which to it was unworthy of belief. However, if it be assumed that this was done in the present case, there is a dearth of evidence tending to show the conditions as they existed at the time of the homicide, and from which it might reasonably be held that the murder was, in fact, wilful, premeditated and intentional. In this regard, the state failed to satisfy the burden of proof. On the other hand, if it be assumed that the jury accepted defendant’s confession in toto, the offense would still be that of second degree murder, for defendant did not satisfactorily establish such provocation as would excuse the homicide or reduce it to manslaughter.

Section 1181 of the Penal Code, as amended in 1927 (Stats. 1927, p. 1037), provides, in part, that if the evidence in a criminal cause shows the defendant to be not guilty of the degree of the crime of which he was convicted, but guilty of a lesser degree thereof, or of a lesser crime included therein, the trial court or any court to which the cause may be appealed may modify the judgment accordingly without granting or ordering a new trial. This court had occasion to consider the amended section in the case of People v. Kelley, 208 Cal. 387 , 391 [ 281 Pac. 609 ], We are of the view that the record now before us establishes murder of the second degree. We entertain a 'doubt as to its showing murder of the first degree. Our attitude of mind seems to be shared by the prosecution. While contending that the evidence is amply sufficient to support the verdict, the People concede that it is “not as strong as that usually accompanying first degree murder cases”. Under no theory, they state in their brief, can it be said that the evidence does not “support a judgment of second degree murder”. What has been said under this assignment sufficiently disposes of the defendant’s contentions touching asserted errors of the court below in charging the jury upon first degree murder, and in denying his motions for new trial and reduction of sentence. We have examined the remaining assignments of error, including those having to do with the trial court’s rulings on the evidence, and find nothing approximating prejudicial error.

The judgment of the lower court of murder of the first degree is modified. The cause is remanded to the trial court with directions to enter a judgment against the defendant finding him guilty of murder of the second degree, and to thereupon pronounce judgment upon him as prescribed by law.

Preston, J., Langdon, J., Curtis, J., Shenk, J., and Seawell, J., concurred.

I dissent. It is conceded in the foregoing opinion that the circumstances of this case are not such as to bring it within the purview of section 1039 of the Civil Code, which has reference to the substitution during a criminal trial of alternate jurors. The case stands therefore as though there existed no provision of law permitting substitution of ánother person in the place and stead of a regularly drawn and impaneled juror. In the absence of such legal warrant, the person introduced into the jury in the midst of the trial in this case was nothing more than a mere bystander. It is also practically conceded in the foregoing opinion that the defendant did not expressly consent in open court to the substitution of such bystander in the place and stead of the regular juror during the trial of the cause. This to my mind under authorities hereinafter to be cited amounted to a violation of the constitutional right of the defendant to a trial by jury. The argument that the substituted person was otherwise qualified to act and serve as a juror, that he took the usual oath and that it must he assumed that he obeyed the same to the extent of joining with the regular jurors in rendering a just and impartial verdict is utterly sophistical, and if permitted to pass without protest would permit any number of bystanders to be introduced in the regular panel during the trial of criminal causes, and would entirely subvert the constitutional guarantee as to trial by jury.

Section 7 of article I of our state Constitution provides in part that, “The right of trial by jury shall be secured to all and remain inviolate”. The value and importance of the right thus guaranteed cannot be overemphasized. It has always been considered as one of the principal bulwarks of liberty under both the English and American systems of government and constitutional law. "While the origin of this institution may be uncertain, it has been so long and so deeply rooted in the institutions of the English people that neither conquest nor change of sovereignty ever operated to either abolish it or even to work its material modification. We find in Blackstone not only the most correct estimate of this institution, but also its greatest encomium, when he states: “The trial by jury has ever been and I trust ever will be looked upon as the glory of the English law.

Prior to the amendment of the state Constitution in 1928 it was well settled by the decisions of this court and of the appellate court of this state that neither the defendant nor his counsel could waive the right to a jury trial in a felony case. (People v. Deegan, 88 Cal. 602 [ 26 Pac. 500 ] ; People v. Metropolitan Surety Co., 164 Cal. 174 [Ann. Cas. 1914B, 1181, 128 Pac. 324 ]; People v. Nakis, 184 Cal. 105 [ 193 Pac. 92 ]; Amos v. Superior Court, 196 Cal. 677 [ 239 Pac. 317 ] ; Ex parte Bracklis, 52 Cal. App. 274 [ 198 Pac. 659 ]; People v. Garcia, 98 Cal. App. 702 [ 277 Pac. 747 ] ; People v. Spinato, 100 Cal. App. 600 [ 280 Pac. 691 ].) In the year 1928, however, section 7 of article I of the state Constitution was amended so as to read in part as follows: “The right of trial by jury shall be secured to all and remain inviolate; but in civil cases three-fourths of the jury may render a verdict. A trial by jury may be waived in all criminal cases by the consent of both parties expressed in open court by the defendant and his counsel.” In the ease of People v. Garcia, supra, it was held that under the foregoing provision of the Constitution as thus amended the defendant in felony cases must personally and expressly consent to the waiver of trial by jury, and that the consent of the defendant’s counsel, even though expressed in his presence, was not sufficient to constitute such a waiver. In the case of People v. Spinato, supra, the case of People v. Garcia, supra, was cited with approval, in the face of the strenuous insistence on behalf of the people that under the decisions of federal and other state courts an express waiver of this constitutional

The Supreme Court of the United States has had occasion in a recent and very well reasoned decision (Patton v. United States, 281 U. S. 276 [ 74 L. Ed. 845 , 50 Sup. Ct. Rep. 253 ]) to pass uopn the right of a defendant to a common-law jury of twelve persons, wherein it was held that this right on the part of a defendant was of such importance that he alone could personally stipulate it away by his express agreement in open court to be tried by less than twelve jurors. It would seem to be axiomatic that if a defendant may only by his personal and express agreement in open court waive the right to trial by a common-law jury of twelve persons, he cannot, without such express waiver and consent, be put upon his trial before any less number than twelve jurors, since, as was held by the Supreme Court of the United States in Patton v. United States, supra, no distinction can be drawn between the effect of a complete waiver of a jury and consent to be tried by a less number than twelve, but that both forms of waiver amount in substance to the same thing. In the light of the foregoing decisions and of the admitted facts of the instant case I am constrained to hold that in the absence of an express agreement on the part of the defendant himself, consenting to the substitution of an alternate juror in the place and stead of one of the regular jurors impaneled to try the cause, and who was shown to be neither dead nor ilTso as to be unable to proceed with the trial, it was prejudical error on the part of the trial court to undertake to make such substitution and thereafter to proceed with such trial before eleven regular jurors and one alternate juror, with the result of the defendant’s conviction.