People v. Isby

Defendants George Isby and Robert Shorts were jointly charged with the murder of Jerome Willingham. Upon arraignment, each of the defendants pleaded “not guilty” and “not guilty by reason of insanity” but before trial, each withdrew the latter plea. Respective motions of defendants for a separate trial were denied. In the course of the ensuing joint trial the question of the present sanity of defendant Shorts arose, the jury was excused, and the matter was determined by the court sitting without a jury. The court found defendant Shorts sane. Defendants’ joint trial then continued and the jury returned against each defendant a verdict of murder of the first degree, without recommendation. Separate motions by defendants for a new trial were made and denied. Judgment was thereafter pronounced, and each of the defendants was sentenced to suffer the extreme penalty. The cause comes to this court upon an automatic appeal. (Pen. Code, § 1239, subd. (b).)

The principal point to be considered is the contention that the evidence was not sufficient to support the verdicts and judgments in that there was no proof of deliberation and premeditation essential to justify a conviction of murder of the first degree; that there was no showing of motive or intent in the commission of the killing to warrant its classification as other than ‘ ‘ a crime of passion, ’ ’ the outgrowth of a quarrel following a card game when “all the parties involved were under the influence of alcohol to some extent”; that the offense could not be regarded as more than murder of the second degree; and that unless this court remands the case for a new trial, it should so modify the judgments in pursuance of its statutory authority. (Pen. Code, § 1181, subd. 6.) The following points are also urged: error in the instructions on the elements of deliberation and premeditation;

Prom the evidence adduced at the trial, it appears that on the morning of November 10, 1946, the lifeless body of Jerome Willingham was found near a railroad labor camp maintained by the Santa Fe Railroad at Emeryville in Alameda County. The autopsy disclosed “many wounds over the [deceased’s] entire body,” including “nineteen stab wounds,” particularly in the region of the lungs, and numerous “contusions, lacerations and abrasions”; a “comminuted fracture” of the skull; “second and third degree burns” of the head, face and neck, both arms and hands, the chest and back; a “burned” condition of the “mucous membrane inside of the nose,” discovered upon the removal of certain “black burned material protruding from the nostrils”; and a “torn and macerated” liver. The autopsy surgeon testified that it was his opinion that this latter condition “could have been caused by a kick in the abdomen or any heavy blunt blow” and that the “death was due to shock from multiple injuries and burns.” Each of the defendants, who are colored men, admitted that he was present at the commission of the crime and that he had inflicted some of the wounds upon the deceased, a white man, but each sought to place the blame for the actual killing upon the other.

The labor camp consisted of a number of bunk cars, commissary cars, and a kitchen maintained by the railroad for the quartering of its employees. Defendant Shorts and Willingham, the deceased, worked for the railroad and lived at the camp. Shorts and one Mack Hughes, also a colored man and a railroad employee, shared the same bunk car. Defendant Isby had formerly worked for the railroad and had then become acquainted with Shorts and Hughes, but Ms first meeting with Willingham occurred but a few hours prior to the commission of the crime in question.

In a few minutes Shorts asked Willingham to leave also, to “go over to [his own] bunk car,” but Willingham refused. Thereupon Shorts “walked over behind” Willingham, “hit him with [a] stool” and “knocked him on the floor.” Willingham still persisted in his refusal to leave the ear, although Isby, too, had begun to urge him to go. Then Isby took a knife out of his pocket and opened it. Shorts took the knife from Isby, “hit Willingham again and knocked him down again,” and then putting both his hands against the side of the car, Shorts jumped up and down on Willingham’s stomach, “stomping and screwing his heels around.” Isby pulled Shorts off of Willingham. Then Shorts “got a piece of paper,” “twisted it up,” “lit it at the stove,” and “put it down in his [Willingham’s] nose,” saying, “This is the way to kill him quick.” Isby claimed that he took the paper out of Willingham’s nose. (The autopsy surgeon testified that “black burned material [was] protruding from the nostrils” of Willingham at the time he examined the decedent’s body.) Shorts then poured gasoline from a jug on Willing-ham, lit a match and set him on fire. Willingham managed to “get up on the floor,” pulling off his burning coat and shirt, when Isby finally smothered the fire. Thereupon Shorts hit Willingham with a lamp, “stabbed him twice,” and then threw “the knife in the heater.” Shortly thereafter (about 2 o’clock on the morning of November 10), Mack Hughes “came in” and asked, “What’s going on?” Not receiving a reply, Hughes said, “You-all better do something with that man before the other fellows come in.” Then Hughes, at Shorts’ request, got a towel. Shorts tore it in half, gave one

Shorts testified at first that Isby “told the truth” when on the witness stand, but then he proceeded to give an account which varied in several particulars from Isby’s story. Shorts stated that in the early part of the evening of November 9, 1946, he went to town and visited ‘ ‘ three beer gardens, ’ ’ where he drank “some beer and wine,” “got drunk” but “not too drunk. ’ ’ He then returned to the camp, went to his bunk car, found the door closed and Isby opened it for him. Willing-ham was lying on the floor. Shorts claimed he then saw Isby kick Willingham, stab him “in the back” and slam him against the floor. Shorts admitted that he hit Willingham with a stool and also stabbed him “a few times” with “Isby’s knife,” which he then returned to Isby. Shorts agreed with Isby in his statement that after the fracas had progressed that far, Hughes came into the car and told them that they “better get [Willingham] out of there”; but Shorts insisted that as he and Isby carried Willingham outside, it was Isby who suggested that they “put him on the railroad track.” Shorts said that he then cleaned up the car.

Mack Hughes was called as a witness on behalf of the prosecution. He testified that he arrived at the bunk car about 2 o’clock on the morning of November 10, 1946; that he knocked on the door, which was closed, and that Isby opened it. Inside the car he saw Shorts and “a white man sitting on the floor . . . bleeding,” whom Hughes did not then know but who was later identified as Willingham. Hughes said he asked, “What’s going on here?” and Isby replied, “I caught this man messing up, so I messed him up.” According to Hughes, Isby thereupon “kicked the man side the head,” “picked him up and slammed him back to the floor” while

Following their arrest at the camp on the morning of November 10, 1946, each of the defendants made several statements in response to separate questioning by the police and the district attorney on successive occasions. After the usual proof as to the voluntary character of such statements, testimony as to their content was admitted in evidence. It appears that each of the defendants at first denied having any knowledge at all of the crime but that each later admitted that he had taken an active— though subordinate—part in a so-called “fight” with Willingham. Thus after “the fight started,” Isby admitted that “he had drawn [his] knife across the throat of the deceased Willingham, and had cut the man’s throat just a little bit”; and Shorts confined “his part in the fight” to kicking “the man [Willingham] up the side of the head.” Both defendants admitted to having “assisted in moving the body out of the car over to the next car track near where the body was found.” Neither defendant claimed, either at the trial or in extrajudicial statements, that he acted in self-defense or that Willingham made any attack or threat of any kind. During the trial the court carefully admonished the jury that “the statement of either of these parties, made either in the way of an admission or confession, is binding only on the man that makes that admission or confession, and not on the other.”

In this state of the record, defendants unavailingly argue that the evidence was insufficient to sustain their conviction of murder of the first degree. Murder is defined as “the unlawful killing of a human being, with malice aforethought.” (Pen. Code, § 187.) 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 it is implied when no considerable provocation appears or when the circumstances attending the kill

In the instant case the circumstances that were shown to have surrounded the' homicide—the vicious form and the long duration of the assault, the type of weapon employed and the manner of its use, the nature of the multiple wounds inflicted, the fact that the attack was unprovoked and that the deceased apparently was unarmed at the time—furnished ample justification for the indulgence by the jury in the inference that defendants were possessed of a willful, deliberate and premeditated purpose to kill the deceased. (13 Cal.Jur., § 73, p. 684; People v. Cook, 15 Cal.2d 507 , 516 [ 102 P.2d 752 ] ; People v. Smith, supra, 15 Cal.2d 640 , 647; People v. Campos, 10 Cal.App.2d 310 , 316 [ 52 P.2d 251 ].) It does not aid defendants in their attack upon their conviction to argue that there was no proof of a- motive for the killing. The presence or absence of a motive is only one factor to be considered by the jury in connection with the other factors in the case. (13 Cal.Jur., § 74, p. 685; People v. Durrant, 116 Cal. 179 , 208 [ 48 P. 75 ] ; People v. Weston, 169 Cal. 393 ,

As was recognized in the case of People v. Wells, 10 Cal.2d 610 , 616-617 [ 76 P.2d 493 ], when an unlawful killing and “nothing further is shown, the presumption of law is that it was malicious and an act of murder; but in such a case the verdict should be murder of the second degree, and not mur

Nor in connection with defendants’ challenge of the propriety of their conviction of first degree murder is there merit in their claim that the court erred in refusing to give an instruction offered by the defense on the subject of “premeditation.” The court very carefully instructed the jury on every phase of murder, and in giving appropriate emphasis to the matter of the deliberation and premeditation necessary to constitute murder in the first degree as differentiated from murder in the second degree, it embodied in its charge not only the substance, but much of the language approved by this court in the recent case of People v. Bender, 27 Cal.2d 164 , 178 [ 163 P.2d 8 ]. Since the jury was thus fully and fairly informed on this essential point, defendants cannot complain because the court did not adopt the particular phraseology of the refused instruction. (24 Cal.Jur., § 79, p. 806; People v. Donnelly, 190 Cal. 57 , 59 [ 210 P. 523 ] ; People v. Rowland, 207 Cal. 312 , 313 [ 277 P. 1041 ] ; People v. Addington, 43 Cal.App.2d 591 , 593-594 [ 111 P.2d 356 ].)

Taking up the other above-mentioned contentions urged by defendants, the first is the alleged error of the court in receiving in evidence an enlarged photograph showing the locale of the railroad labor camp, with the deceased’s body lying in the foreground. Defendants maintain that the photograph was not admissible because it was taken after the police had taken charge of the situation at the camp and had moved certain railroad ears on the track, thus reflecting “a change in the view” of the premises from the condition prevailing when the deceased’s body was found. But at the trial in the

Defendants’ next contention rests on the claim that a portion of the trial was held in their absence, in violation

Defendants rely on the well-settled rule that if the prosecution be for a felony, the accused must be personally present at the trial to validate a conviction. (14 Am.Jur., §189, p. 898; 7 Cal.Jur., §75, _p. 928; Pen. Code, § 1043.) Accordingly, it has been held in this state, as defendants properly note, that in the trial of a felony the accused must be personally present during the presentation of evidence before the jury (People v. Kohler, 5 Cal. 72 ), or when the verdict is returned (People v. Beauchamp, 49 Cal. 41 ;

Defendants further contend that the jury was guilty of misconduct “by which a fair and due consideration of [their] case [was] prevented.” (Pen. Code, §1181, subd. 3.) Defendants’ conviction here is the outcome of a second trial; the first trial ended in a disagreement. Defendants now claim that two or three jurors from the first trial visited the court room in the present trial and there in the presence of the jury, stated to the prosecuting attorney: “We are here to help you. . . . We came to root for” you. Classifying such remarks as an improper influence on the acting jury to bring in verdicts against them, defendants cite the general rule that it is “the duty of the court to see that public sentiment is not expressed to, or in the presence of, the jury in such a way as to be likely to influence their determination.” (23 C.J.S., § 970, p. 298.) But the record does not contain the slightest proof in substantiation of defendants’ complaint. Their reference to certain portions of the reporter’s transcript relating to the argument of opposing counsel on defendants’ motions for a new trial only emphasizes the lack of evidence on the point, assuming that the alleged remarks were in fact made. Thus it appears that one of defense counsel, in correlating his successive contentions with the statutory

Nor is there any force to defendants’ specification of misconduct on the part of the prosecuting attorney by reason of his remarks in his opening'statement to the jury. The record discloses such statement to be no more than a recital of the facts which it was his purpose to establish by evidence during the progress of the trial, “to the end that the jury [might] more clearly sift and digest” the case before it. (8 Cal.Jur., § 322, p. 259.) Moreover, defendants made no objection to the statement at the time (People v. Tedesco, 1 Cal. 2d 211 , 221 [ 34 P.2d 467 ]), and they neither offered nor requested from the trial court an instruction admonishing the jury that said “opening statement . . . did not constitute evidence.” (People v. Chilcott, 18 Cal.App.2d 583 , 588 [ 64 P.2d 450 ].) Nevertheless, they now claim that the court should have so instructed the jury on its own motion, but they cite no authority in support of their position. Disregarding the tardiness of defendants’ complaint, and in answer thereto, it need only be said that the trial court did cover the subject in its instruction to the jury that “the statements and arguments of counsel . . . are not evidence in this case and . . . any statements made by counsel either during the trial or argument which are not supported by evidence or which are inconsistent with my instructions as to the law, are to be disregarded by you.” As was said in People v. Burkhart, supra, 211 Cal. 726 , at page 733: “It will be presumed that the jurors were true to their oaths and

There is likewise no merit to defendants’ position that the court erred in refusing to grant their respective motions for a separate trial. The code section bearing upon this subject provides that when two or more defendants are jointly charged with a public offense, whether felony or misdemeanor, “they must be tried jointly, unless the court order separate trials.” (Pen. Code, § 1098.) And it has been held repeatedly that a defendant so charged is not entitled as a matter of right to a separate trial (People v. Rocco, 209 Cal. 68 , 73 [ 285 P. 704 ] ; People v. Eudy, 12 Cal.2d 41 , 45 [ 82 P.2d 359 ]), but that the question of severance is one that must be left necessarily to the determination of the trial court in the exercise of its sound discretion. (People v. Bringhurst, 192 Cal. 748 , 753 [ 221 P. 897 ] ; People v. Goold, 215 Cal. 763 , 766 [ 12 P.2d 958 ; People v. Tinnin, 136 Cal.App. 301 , 317 [ 28 P.2d 951 ] ; People v. King, 30 Cal.App.2d 185 , 206 [ 85 P.2d 928 ].) It is not an abuse of discretion to refuse to grant a demand for separate trials because damaging testimony, admissible against one defendant and not against the other, may be received in the case, but it is then incumbent upon the court to limit such evidence in its application to the defendant to whom it is referable. (People v. Erno, supra, 195 Cal. 272 , 277; People v. Perry, 195 Cal. 623 , 633 [ 234 P. 890 ]; People v. Booth, 72 Cal.App. 160 , 165 [ 236 P. 987 ].) As above noted in the recital of the evidence in the forepart of this opinion, defendants’ respective rights in this regard were carefully preserved throughout their joint trial.

The final point to be considered is defendant Isby’s claim that the court erred in admitting in evidence his confession because he did not have sufficient mentality to understand its purport. He bases his argument upon the testimony of a psychologist, a witness on his behalf, that he was “well down the scale of feeble-mindedness . . . near the imbecile classification,” according to her use of a Stanford-Binet intelligence test on him, showing that while “his actual age was given ... as 26 years, his mental age was found to be 8 years and 8 months . . . and ... his intelligence quotient was 58.” But defendant does not dispute the fact .that he knew “the difference between right and wrong,” nor does he

The judgment of conviction of each defendant and the order denying the motion of each defendant for a new trial are, and each is, affirmed.

Gibson, C. J., Shenk, J., Edmonds, J., Carter, J., Traynor, J., and Schauer, J., concurred.

Appellant Isby’s petition for a rehearing was denied December 15, 1947.