People v. Barclay

Defendant Lovell Barclay was charged by indictment with the murder and robbery of Alson G. Smith. He pleaded not guilty and admitted two prior felony convictions of robbery and one of manslaughter. A jury returned verdicts of guilty of murder in the first degree without recommendation and of robbery in the first degree. Defendant’s motion for a new trial was denied, and he was sentenced to death on the murder conviction and to prison on the robbery conviction. The appeal to this court is automatic. (Pen. Code, § 1239b.)

Defendant operated a restaurant concession at the Hilltop Club in Crockett, owned by Smith. On the evening of March 6, 1952, Daniel Ortiz, James Davis, and William Hatfield, three acquaintances of defendant, drove to Crockett in Davis’ car. They found defendant repairing his ear and after some conversation the four men went to defendant’s room in Crockett. The conversation turned to the subject of robbery, and Hatfield and defendant discussed the possibility of robbing a place about 100 miles away. Defendant said that his car was in poor mechanical condition, and the two men asked Davis if they could use his car. Davis refused. After some discussion, defendant suggested that Davis drive him to the Hilltop Club so that he could borrow the car of a bartender who worked there. Davis agreed and the four men arrived at the Hilltop Club at about 3 o ’clock in the morning.

Davis and Ortiz waited in the car. Hatfield and defendant forced open a window and entered the club. Knowing that Smith kept most of his money in his room, the two men went upstairs. Hatfield entered the room first and found Smith asleep: He beat Smith until he was unconscious. The two men then ransacked the room and found Smith’s wallet and several bags of silver. While their attention was distracted Smith recovered consciousness and sat up in bed. Hatfield, using defendant’s nickname, called out: “Frisco, what should I do?” Defendant said: “Man, you shouldn’t have said my name ... I’ll take care of him.” Defendant threw a blanket over Smith’s head. Hatfield turned his

Ortiz and Davis asked about the bartender’s car, but defendant and Hatfield laughed and told Davis to drive back to defendant’s room. After they arrived, Davis and Ortiz saw Hatfield wash blood off his hands and watched the two men divide the money. Realizing that a crime had been committed while Hatfield and defendant were in the club, Ortiz and Davis complained that they had become involved. They were given about $10 apiece and told to keep quiet. The four men separated and went home.

Smith never regained consciousness and died the day after the robbery. The injuries received from the beating were the direct cause of his death. When Davis and Ortiz read in a newspaper that Smith had died, they informed the police of the crime, and Hatfield and defendant were apprehended.

Hatfield and defendant were tried jointly. Ortiz and Davis testified as witnesses for the prosecution. Midway through the trial Hatfield withdrew his plea of not guilty and pleaded guilty. Subsequently he testified as a witness for the prosecution. An expert witness testified that he found fibres on defendant’s clothes that matched fibres from the bedding on Smith’s bed, and that he found dust on defendant’s clothes that matched dust on the roof of the Hilltop Club taken from the point where defendant and Hatfield made their entry. Defendant took the stand in Ms own behalf and testified that on the night of the murder he completed his work at the club at about 1:30 and then went home to bed. He contended that Hatfield, Ortiz, and Davis liad falsely accused him of the crime in order to avoid responsibility for themselves. The jury rejected his defense and found him guilty.

Since the evidence in the present case shows that defendant Mlled Smith in the commission of a robbery, it is clearly sufficient to support the conviction of murder in the first degree. (Pen. Code, § 189; People v. Coefield, 37 Cal.2d 865 , 868-869 [ 236 P.2d 570 ].)

Defendant contends that the court erred in not instructing the jury that Davis, Ortiz, and Hatfield were accomplices as a matter of law. An accomplice is “one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.” (Pen. Code, § 1111.) If the

The People concede that Hatfield was an accomplice as a matter of law and that it was error not to so instruct the jury. The court, however, clearly and correctly instructed the jury on the definition of an accomplice. The jury knew that Hatfield had been indicted with defendant; they had heard his testimony that he committed the crime; they knew that he had withdrawn his plea of not guilty and entered a plea of guilty.' The district attorney stated in his argument to the jury: “With Mr. Hatfield we feel that he was an accomplice, there is no doubt about it. As to Davis and Ortiz, you

The only evidence before the grand jury to connect defendant with the crime was the testimony of Ortiz and Davis. Defendant contends that the trial court erred in denying his motion to set aside the indictment, on the ground that it was not based upon evidence that would warrant a conviction by a trial jury. (Pen. Code, § 921; cf. Lorenson v. Superior Court, 35 Cal.2d 49 [ 216 P.2d 859 ] ; People v. McRae, 31 Cal.2d 184 [ 187 P.2d 743 ].) It is unnecessary to pass upon this contention since, as we have seen, whether or not Ortiz and Davis were accomplices of defendant was a question of fact to be determined by the jury at the trial.

At the request of the People, the jury was instructed that: “It is the law that the testimony of an accomplice ought to be viewed with distrust. This does not mean that you may arbitrarily disregard such testimony, but you should give to it the weight to which you find it to be entitled after examining it with care and caution and in the light of all the evidence in the case. ’ ’ Defendant criticizes the italicized part of the instruction, on the ground that the jury should have been instructed only in the language of section 2061 (4) of the Code of Civil Procedure, that “the testimony of an accomplice ought to be viewed with distrust,” and that the additional words “care and caution” prejudicially weakened the instruction. It is error to instruct the jury that an accomplice’s testimony should be viewed with “caution” without also instructing the jury in the language of the statute. (People v. Hamilton, 33 Cal.2d 45 , 51 [ 198 P.2d 873 ] ; see, also, People v. Dail, 22 Cal.2d 642 , 653 [ 140 P.2d 828 ].) The instruction given in the present case, however, read as a whole, is a correct statement of the law. (People v. Hess, 107 Cal.App.2d 407 , 430 [ 237 P.2d 568 ]; People v. Chapman, 93 Cal.App.2d 365 , 381. [ 209 P.2d 121 ].)

The jury was instructed that: “If either the crime of murder or robbery, the commission of which is alleged in the indictment, was committed by any of the witnesses in this case, then as a matter of law such witness was an accomplice, assuming that you find that the defendant Bar

The jury was instructed that: “In determining whether or not the testimony of an accomplice has been corroborated as required by law, you must, for the purpose only of your consideration of that question, assume to be removed from the case the testimony of the accomplice, and then examine all other evidence with a view to determining if there be any inculpatory evidence, that is, evidence tending to connect the defendant with the commission of the offense. If such other evidence does do that, then the testimony of the accomplice is corroborated; if it does not, then there is no corroboration, although the accomplice may be corroborated in regard to any number of facts sworn to by him.” Defendant contends that the instruction erroneously permitted the jury to find corroboration of the testimony of one accomplice in the testimony of other accomplices, on the ground that it told the jury that the test of corroboration was whether, aside from the testimony of “the” accomplice, “all other evidence” tended to connect the defendant with the commission of the offense. Defendant contends that “all other evidence” would include testimony of other accomplices so that the jury, even though it found Davis and Ortiz to be accomplices, might nevertheless have considered their testimony as corroborative of the testimony of Hatfield. In the instruction following that quoted above, however, the jury was told that: “The corroboration of an accomplice required

Early in the trial a confession by Hatfield was admitted in evidence. The jury was instructed that it should not consider the confession as evidence against defendant. (See People v. Wade, 71 Cal.App.2d 646 , 652-653 [ 163 P.2d 59 ].) Subsequently, Hatfield withdrew his plea of not guilty. The court denied defendant's motion for a mistrial and instructed the jury that the testimony regarding Hatfield’s confession was struck from the record and must be disregarded. Hatfield later testified regarding all the matters set forth in his confession. Defendant now contends that his motion for a mistrial should have been granted, on the ground that the confession of Hatfield was admissible at the trial of defendant only if Hatfield and defendant remained jointly on trial until the cause was submitted to the jury. Since all matters set forth in the confession were subsequently in evidence when Hatfield testified as a witness for the People, the error, if any, was not prejudicial to defendant. (People v. Simmons, 28 Cal.2d 699 , 721 [ 172 P.2d 18 ] ; People v. Higbee, 78 Cal.App. 455 , 459 [ 248 P. 927 ].)

Police officers took the pillow and quilt from Smith’s bed and sent them to a laboratory for analysis. At the time of the initial investigation of Smith’s room, the pillow was covered with a slip, but the slip was missing when the pillow arrived at the laboratory. The absence of the slip was never explained. Defendant contends that it was error to allow the expert witness to testify regarding the similarity of fibres swept from the pillow with fibres swept from defendant’s clothes, on the ground that when examined by the expert the pillow was not in the same condition as at the time of the murder. Defendant, however, does not show how the absence of the pillow slip could have prejudiced him in any way.

Defendant next contends that his conviction of robbery in the first degree is unsupported by competent evidence. Robbery is of the first degree when it “is perpetrated by torture or by a person being armed with a dangerous or deadly weapon.” (Pen. Code, § 211a.) There is no evidence of torture in the present case, but Hatfield testified that he was armed wth a .38 revolver at the time of the robbery. Hat

When a defendant is convicted of murder in the first degree, the jury determines his punishment as well as his guilt. (Pen. Code, § 190; People v. Sainz, 162 Cal. 242 , 246-247 [ 121 P. 922 ] ; cf. Pen. Code, § 209 [kidnapping with bodily harm] ; Pen. Code, § 264 [rape of female under age 18].) Since the issues of punishment and guilt are determined at the same time, there is danger that evidence or instructions offered on the former issue may influence the verdict, on the latter issue. Accordingly, to avoid prejudice to either the People or the accused by injection of collateral issues into the case, evidence of the good or bad habits and background of the accused is generally held inadmissible (People v. Valenzuela, 7 Cal.2d 650 , 653 [ 62 P.2d 142 ] ; People v. Witt, 170 Cal. 104 , 110-111 [ 148 P. 928 ] ; see, also, People v. Larrios, 220 Cal. 236 , 241-242 [ 30 P.2d 404 ] [court in discretion may permit defendant to show ‘ ‘ something of his background”] ), and the consideration of the jury is limited to the facts and circumstances attending the commission of the of

For similar reasons of policy the jury is not allowed to weigh the possibility of parole or pardon in determining the guilt of the defendant, and it is therefore error to give an instruction that allows the jury to take into consideration the consequences of a recommendation of life imprisonment in arriving at that determination. (See People v. Letourneau, 34 Cal.2d 478 , 494 [ 211 P.2d 865 ].) To aid the jury in fixing the punishment of the defendant, however, the court may instruct the jury as to the consequences of the different penalties that may be imposed so that an intelligent decision may be made. (People v. Chessman, 38 Cal.2d 166 , 189-190 [ 238 P.2d 1001 ] ; People v. Osborn, 37 Cal.2d 380 , 384-385 [ 231 P.2d 850 ] ; People v. Caetano, 29 Cal.2d 616 , 619 [ 177 P.2d 1 ] ; People v. La Verne, 212 Cal. 29 , 31 [ 297 P. 561 ] ; People v. Hall, 199 Cal. 451 , 459 [ 249 P. 859 ] ; People v. Hong Ah Duck, 61 Cal. 387 , 393.) In the Osborn case, the court informed the jury that a recommendation of life imprisonment without possibility of parole would not be binding, thus impliedly answering in the affirmative the question of the jury whether a person sentenced to life imprisonment might be paroled. We stated: “It is understandable that jurors, who are charged with the duty of fixing the penalty in the event that they find a defendant guilty of first degree murder, should be interested in knowing the nature and effect of the penalties which they may impose; and neither reason nor authority indicates that the trial court should be prohibited from enlightening the jurors when questions are asked upon that subject.” (37 Cal.2d at 385.) Recently, in People v. Chessman, supra, it was held that there was no error in informing a jury that when a person is sentenced to life imprisonment without possibility of parole there nevertheless remains the chance that the defendant will be freed by pardon, commutation, or action of the Legislature. The recent decisions of this court thus establish that a jury may consider the consequences of a recommendation of life imprisonment in determining the punishment of the defendant, although it may not consider the possible penalties in determining the guilt of the defendant.

The question remains whether error was committed in the present case. The instruction suggested by defendant