People v. Smith

Defendants Smith and Allen, inmates of Folsom prison, were charged with having assaulted Willard Borton, another inmate, in violation of Penal Code section 4500, which makes it a crime punishable with death for a person undergoing a life sentence to assault another with a deadly weapon. In a second count, defendants were charged with having murdered Borton. They were convicted on both counts and were separately sentenced to suffer the death penalty for each offense. The appeal is automatic under section 1239(b) of the Penal Code.

At the time Borton was killed, Smith was serving a life sentence for first degree murder. Allen was then serving an indeterminate sentence of from five years to life for burglary, and the length of his sentence had not yet been fixed by the Adult Authority. It is settled that section 4500 is applicable to a prisoner serving such a sentence until there is a remission of part of the life term. (In re Wells, 35 Cal.2d 889 [ 221 P.2d 947 ]; People v. Wells, 33 Cal.2d 330 [ 202 P.2d 53 ].)

Charles Biersdorff, another prisoner, testified that on the morning of October 11, 1949, he heard someone shout, “Help, they’re killing me,” and looking in a window of the prison barbershop he saw defendants attacking Borton. He said that Allen hit Borton on the head several times with a hatchet, knocking him down, and that while Allen was striking Borton

A prison guard saw Borton fall to the ground with a knife sticking in his back. He died in the prison hospital a few minutes later. In addition to the knife wound in his back there were five knife wounds in his chest, two wounds on his head caused by a blunt instrument, several ragged lacerations toward the back of his head and slashes and cuts on his forearms. The chief medical officer testified that death was caused by the wounds and resulting loss of blood.

When defendants were examined by prison officers shortly after the assault was committed, there was a blood spot on Smith’s arm, Allen had a fresh cut on his hand, and both of them had blood on their clothing. A hatchet with blood on it was found in the barbershop, and a search revealed that a leg was missing from a low table in Smith’s cell. A criminologist testified that in his opinion the hatchet handle was made from the missing leg. He based his conclusion on similarities between the handle and the table legs as to length, paint layering and arrangement of mortices. The hatchet handle and the handle of the knife found in Borton’s back were wrapped with the same kind of tape, and the torn ends matched, that is, the outside end of the tape applied to the hatchet handle matched the inside end of the tape applied to the knife.

After defendants had been examined by prison officers they were placed in separate cells, and Sergeant Katsulis, of the prison staff, took a concealed position and listened to conversations between them. Katsulis testified that Smith said, “We knew what we were getting into, didn’t we Johnnie?” Allen replied, “That is right.” Smith said, “Any regrets, Johnnie?” Allen answered, “Hell, no.” In another conversation Smith told Allen that he had been questioned about the hatchet, and he asked Allen, “How do you suppose he [the warden] tied me in with the hand-axe, Johnnie?” Allen said he didn’t lmow. Smith then stated, “Maybe they found that table in my cell that I made the handle out of and the tape I wrapped the handle with. Johnnie, that is about it.”

Defendants took the stand in their own behalf and denied that they killed or assaulted Borton or that they were present

The evidence is clearly sufficient to support the conviction of defendants on both counts, and they base their claim for reversal of the judgments upon asserted errors in admitting evidence, in instructing the jury and in denying their motions for a new trial.

It is first contended that the court erred in admitting testimony over the objection that no proper foundation had been laid. James C. Dunn, a stenographic reporter called as a witness by the prosecution, was asked to read excerpts from his notes of a conversation between defendants which he overheard while they were confined in their cells after the assault. The evidence was offered for the purpose of rebutting testimony given by defendants. After the witness had been questioned on voir dire examination as to how he recognized the voices he heard as being those of defendants, objection was made to the introduction of his testimony because it was asserted his identification of the voices was based on information given him by prison officers that defendants were occupying the cells where the persons speaking were confined. The record shows, however, that a short time before Dunn overheard the conversation in question he was present while defendants were being examined in the warden’s office, and he testified that he heard defendants talle on that occasion and that he recognized their voices when he heard the conversation which he recorded. A sufficient foundation was laid, and the evidence was properly admitted. Defendants also objected to the testimony of Dunn, who acted as a court reporter during the trial, upon the ground that he had not been excluded from the courtroom as had other witnesses. In overruling the objection the trial court pointed out that since Dunn’s testimony consisted entirely of reading notes previously recorded, there was no reason for excluding him from the courtroom. This matter was within the discretion of the trial court, and defendants have not shown they were prejudiced in any way by the ruling.

Defendants next contend that the court erred in instructing the jury that they could be convicted or acquitted upon either or both of the charges, i. e., assault by a life term convict and murder. They argue that there can be but one conviction where the offenses arise out of the same act, and in support of their position they cite section 654 of the Penal

Section 654 prohibits double punishment for the commission of a single act (People v. Kehoe, 33 Cal.2d 711 , 713 [ 204 P.2d 321 ] ; People v. Knowles, 35 Cal.2d 175 , 187 [ 217 P.2d 1 ]), but it does not prohibit convictions for different offenses arising out of a single act unless one is necessarily included within the other. (Pen. Code, §§ 954, 1023; People v. Craig, 17 Cal.2d 453 ,457 [ 110 P.2d 403 ] ; People v. Kynette, 15 Cal.2d 731 , 761-762 [ 104 P.2d 794 ].) To preclude any possibility of the dual judgments working any disadvantage to the detriment of the defendant in the later fixing of his term, the judgment of conviction of the lesser crime has been reversed in several cases. (People v. Knowles, 35 Cal.2d 175 [ 217 P.2d 1 ] ; People v. Kehoe, 33 Cal.2d 711 [ 204 P.2d 321 ] ; People v. Clemett, 208 Cal. 142 [ 280 P. 681 ].) In the present case, since there can be but one execution of the death sentence for the violation of Penal Code section 4500 or for first degree murder, no purpose would be served by reversing either judgment to avoid any possibility of double punishment.

Defendants moved for a new trial upon the ground of newly discovered evidence, and in support of their motion presented an affidavit by the witness Biersdorff stating that

The judgments and the orders denying motions for a new trial are affirmed.

Shenk, J., Edmonds, J., Carter, J., Traynor, J., Schauer, J., and Spence, J., concurred.