People v. Purvis

Defendant was charged with the murder of Mrs. Hazel Wilson. He entered pleas of not guilty and not guilty by reason of insanity. A jury found him guilty of murder of the first degree, fixed the penalty at death, and found that he was sane at the time of the commission of the crime. The trial court denied defendant’s motion for a new trial and sentenced him to death. This appeal is automatic. (Pen. Code, § 1239, subd. (b).)

In 1950 defendant was convicted of the second degree murder of his wife and sentenced to prison. He was paroled in 1954 and returned to Oakland. On December 19, 1957, he killed Mrs. Wilson. He met her in June 1957, and the next day she moved into his apartment and stayed for several

Mr. Wilson discovered where defendant lived and that his wife was being unfaithful. He first met defendant on the street early in July and told him to stay away from his wife. He asked what defendant woxild do if he came to defendant’s apartment, and defendant replied, “I guess I’d kill you; I have a gun in my house.” Another time, defendant went to the Wilson apartment when Mr. Wilson was the only one present. He told Mr. Wilson that he had come to get a clock, and Mr. Wilson told him to take what was his and get out. In the course of their conversation, defendant stated that he had killed once and could kill again.

In the latter part of July, defendant and Mrs. Wilson decided to separate temporarily, and defendant told her to return to her home until the situation improved. On July 31st he went to her home to return clothes she had left at his apartment. He testified that she accused him of asking her to leave his apartment so that another woman could move in and told him she was going to call the police and tell them that he had been threatening her. According to the testimony of the children who were present, defendant became extremely angry and made jabbing motions at Mrs. Wilson with a knife. Mrs. Wilson said to her son, “He is trying to kill me, call the police. ’ ’ Mrs. Wilson and the children left her apartment, and defendant returned to his home. Shortly thereafter the police arrived and arrested him. They asked him where the knife was, and he pointed to a paring knife in his kitchen. He pleaded guilty to disturbing the peace (Pen. Code, § 415) and was sentenced to 90 days in the county jail. His parole was not revoked.

Defendant was released from jail on November 13th. He had lost his apartment and moved into an apartment with his son and daughter-in-law. He resumed seeing Mrs. Wilson and spent the night with her at a hotel near her home on several occasions, the last about a week before the homicide. During this period defendant was unemployed, and he passed worth

The tenant who rented defendant’s apartment after he had been sentenced to the county jail testified that two or three weeks after his release from jail, he came to the apartment and gave her a set of keys. He asked if she found the gun he had hidden above the transom and told her that he would kill Mrs. Wilson because she had him sent to jail. The tenant found no gun in the apartment. Defendant denied the conversation about the gun and Mrs. Wilson.

About the end of November defendant purchased a 22-cali-ber pistol and some shells from a person he met in a bar. He testified that he paid $15 for the gun with the understanding that the seller would buy it back later for $20. He also testified that he tried several times to sell the gun, but statements he made to the police tend to contradict this testimony.

Mrs. Wilson’s son Charles testified that about a week or 10 days before the homicide, defendant came to their home in the evening while he and his mother were watching television. Mr. Wilson was asleep in another room. Defendant told Mrs. Wilson that he loved her and that “if you ever leave me, I will kill you.” Charles became annoyed at defendant’s behavior and compelled him to leave.

On December 17th defendant wrote Mrs. Wilson a letter, which was postmarked 1:30 a.m., December 18th. It stated: “Haze Darling: I am writing this to let you know that I love you, sweetheart, and always will. Until I die your lovely face will always be before me. Thanks honey for the wonderful hours you have given to me. Your love has been the sweetest and best that any man could ever receive from a woman. Honey, as you have probably heard by now, I am in trouble. I will not be able to see you or write to you again. My darling, forget you ever met me. I am no good for you. Eemember this my darling, I love you forever. Mom dear, please, please don’t be too angry with me. What I have done is wrong but I done these things so I could be with you. Haze darling, I love you with all my heart and soul. Goodbye, my darling. I love you, my angel. Tom Purvis.”

In the daytime on December 18th, however, defendant visited Mrs. Wilson at her home with his son. The visit was amicable, and Mrs. Wilson apparently expected defendant to return the next day. She told her son Charles the next morn

Defendant left his son’s apartment about 9 a.m. on December 19th and took the 22-caliber pistol with him. He went to Mrs. Wilson’s apartment and was admitted by her 10-year-old daughter. Mrs. Wilson had gone back to bed after preparing breakfast for Charles and her husband, who had left before defendant arrived. The daughter took defendant into the bedroom, and he told her to leave. She went into the hall and played with some other children and then went upstairs to the apartment above. Before she left the hall she heard defendant speak of a letter and heard Mrs. Wilson tell defendant to “sign it” and heard defendant say, “no, you sign it.”

Defendant testified that he went into the bedroom and talked with Mrs. Wilson about a crash helmet that he was going to buy for Charles. Mrs. Wilson said she was not feeling well, and they went into the kitchen so that she could take some medicine. They returned to the bedroom and again discussed the crash helmet and a radio defendant intended to buy Mrs. Wilson for Christmas. He told her he could buy the crash helmet and radio if he received an unemployment check and could sell the pistol, which he took out of his belt and laid on a dresser. Mrs. Wilson then asked defendant to sign another fictitious check, and he said that if any more checks were to be signed she would have to sign them. She asked him if he were “going to do as she told me to, ’’ and he said “no.’’ Sometime during the conversation he left the room while she dressed. They argued further about who was to sign the check, and she asked him to go to a liquor store and get some whiskey, but he refused. She then told him that she was going to call the police and tell them that he had been threatening her again. She did not threaten him physically, but she said that she would send him back to San Quentin “for good.”

The next thing defendant remembers was walking down the street with the pistol in his belt. He went into a bar, ordered a glass of beer, and told the bartender to call the police. He put the pistol on the counter, and when the bartender told him that he would get in trouble if the police saw him carrying a weapon, he said “Well, it doesn’t matter.” Then he said, “There is a dead woman up there.” Under questioning by the police and on cross-examination at the trial, defendant was unable to remember what happened after Mrs. Wilson told him she would have him returned to San Quentin.

When the police officers arrived at the bar, they searched defendant and removed the gun. He directed them to Mrs. Wilson’s apartment, where the officers found her body on the floor. She died as a result of multiple gunshot wounds from bullets fired from defendant’s gun. He told the arresting officers, “I loved her, I shot her, and she will never drag another man down.” Later on the way to the police station, he said, “I pumped seven bullets in her and that ought to do the job.”

Defendant contends that the evidence is insufficient to support a finding that the killing was “willful, deliberate, and premeditated” (Pen. Code, § 189), and that since it could not be murder of the first degree under any other theory, the court should reduce the degree of the crime to murder of the second degree. (See Pen. Code, § 1181, subd. 6.) Defendant concedes that standing alone the threats to kill and the purchase of the gun followed by its intentional use to kill would support an inference of deliberation and premeditation. He contends, however, that such an inference is wholly dispelled by other evidence in the record. (See People v. Holt, 25 Cal.2d 59 , 69-70 [ 153 P.2d 21 ].) He points out that he vacillated in his attitude toward Mrs. Wilson and contends that at the time of the killing the evidence establishes that any preexisting hostility toward her had been dissipated. Accordingly, he concludes that the only reasonable inference is that the killing was the unpremeditated result of the sudden quarrel that immediately preceded it and Mrs. Wilson’s threat to send him back to prison for good.

The jury was not compelled to draw that inference. Defendant had threatened to kill Mrs. Wilson for sending him to jail, and he knew before the killing that his writing of fictitious checks could result in the revocation of his parole. His statement following the killing that “she will never drag another man down” indicates that he held her responsible for his difficulties. Whatever his feelings toward her may have been at the time he wrote the farewell letter of December 17th, the jury could reasonably infer that by the 19th, defendant had decided that Mrs. Wilson was responsible for the check writing that could return him to prison, and that the revenge, threatened before, should now be carried out.

Even if the jury rejected revenge as a motive for the killing, it could reasonably conclude that the killing was deliberate and premeditated on the ground that defendant

The jury was not compelled to believe defendant’s testimony that he took the gun with him on the day of the killing solely to sell it, that a serious argument developed over who should sign a check, and that Mrs. Wilson threatened to send him back to prison. Moreover, even if Mrs. Wilson made such a threat, the jury could reasonably discount it as a cause for a sudden attack, for defendant believed that his parole would soon be revoked. Whatever the motive for the killing may have been, the evidence fully supports the jury’s conclusion that it was “willful, deliberate, and premeditated,” and was therefore murder of the first degree.

There is no merit in defendant’s contention that the verdict of guilty of murder of the first degree was induced by misconduct of the prosecuting attorney. In arguing the significance of defendant’s claimed lack of memory of the shooting, the prosecuting attorney pointed out that defendant’s only other failure of memory occurred when he killed his wife, and argued that there was no reason to believe he would fail to remember only these two events, that “He knows,” and that, “as an old pro that he is, he now figures out his conduct after it happens. ’ ’ This argument did not suggest to the jury, as defendant contends, that he should be found guilty of murder of the first degree because he had killed his wife or was not truthful in his testimony. It was directed to defendant’s credibility as a witness, it was based on evidence in the record, and it was within the scope of proper argument as to how the jury should view defendant’s testimony.

Penal Code, section 190.1, provides for further proceedings to determine the penalty after a defendant has been found guilty of an offense punishable by life imprisonment or death. “Evidence may be presented at the further proceedings on the issue of penalty, of the circumstances surrounding the crime, of the defendant’s background and history, and of any facts in aggravation or mitigation of the penalty. ...”

Defendant contends that the trial court erred in the penalty

When the issue to be determined is the penalty to be imposed for a subsequently committed crime, however, the rules of res judicata may not properly be invoked to foreclose inquiry into relevant circumstances surrounding an earlier crime of which the defendant was convicted, for the fact that a defendant’s criminal responsibility for an earlier crime has been fixed by a conviction does not justify denying to the jury charged with fixing the penalty for another crime relevant evidence bearing on that issue. (See People v. Friend, 47 Cal.2d 749 , 763, footnote [ 306 P.2d 463 ].)

In the present case there was a marked similarity between the circumstances surrounding the two murders. In both, defendant killed the woman with whom he had been emotionally involved at a time when separation was imminent, in the former case because his wife had ordered him to leave so that she might pursue an affair with another man, and in the latter because defendant expected to return to prison. In both he armed himself with a gun on the day of the killing, and in both his explanation for so doing did not compel belief. In both the killing was preceded by an altercation with the woman involved that resulted in defendant’s criminal prosecution, and in both defendant testified that he could not remember the killing. The jury was entitled to consider this recurrent behavior on the issue of punishment, for it might conclude that the behavior would probably or possibly recur again were defendant given a life sentence and ultimately paroled.

Much of the evidence of the former murder was favorable to defendant. It indicated serious provocation on the part of his wife, her contempt for him and her unfaithfulness to him. Such evidence might lead the jury to conclude that the fact defendant had killed his wife did not support imposing the death penalty for the killing of Mrs. Wilson.

The jury could not have intelligently assessed the significance of defendant’s killing his wife had the relevant circum

To prohibit a jury from looking behind a former verdict might seriously prejudice defendants in other cases. A defendant convicted of murder of the first degree might have compelling evidence to prove his innocence of a prior crime of which he had been convicted. It might even appear that the motive for the killing was the victim’s false testimony that led to the .prior conviction. Surely such evidence would be admissible on the issue of punishment even though it required the impeachment of a former verdict to introduce it.

When a jury determines punishment in a case where the death penalty is permissible, it performs a function similar to that performed by the Adult Authority in fixing terms and granting paroles in other cases. To perform its function intelligently, the jury, like the Adult Authority, must be free to fix the penalty for the crime of which defendant stands convicted within the legal limits prescribed on the basis of its own evaluation of all of the evidence before it.

Defendant contends, however, that the best evidence of the circumstances of the former killing was the transcript of the testimony at the former trial and that it was therefore error to permit the witnesses at the former trial to testify at the present trial. There is no merit in this contention, for the testimony of witnesses who are available is preferred to the .record of their testimony given at another time. (Pen. Code, § 686; Code Civ. Proc., §1870, subd. 8; Blache v. Blache, 37 Cal.2d 531 , 535 [ 233 P.2d 547 ].)

Defendant pleaded guilty to being intoxicated in

In People v. Green, 47 Cal.2d 209 [ 302 P.2d 307 ], decided in 1956 before section 190.1 was enacted, we ordered a new trial in a death penalty case limited to the issue of the penalty to be imposed. We stated: “There arises the question of the character of the evidence to be received on the limited new trial for the determination of punishment. Where the question (together with the degree of the crime) is determined by the court on defendant’s plea of guilty to a charge of murder, the hearing ‘is not a trial in the full technical sense, and is not governed by the same strict rules of pro

Section 190.1 now sets forth the facts that may be proved in the separate proceedings on the issue of penalty, but it does not change the rule of the Green case as to how those facts are to be proved. Acordingly, the trial court did not err in excluding the offered documents.

Defendant called Warden Clinton Duffy, Vice-Chairman of the Adult Authority, as an expert witness to present testimony with respect to whether defendant would ever be paroled. During his examination it was brought out that under present law, if defendant was given a life sentence, he could be paroled after serving seven years. Warden Duffy testified, however, that the average time served by persons given life sentences for first degree murder was 12 years ; that the Adult Authority would “take a very dim view” of ever paroling a person who had been sent to prison for first degree murder with a prior conviction of second degree murder; and that although he did not have the statistics, of the two cases he remembered of persons who had committed a second murder, one died in prison and the other was still in prison after serving more than 25 years. Although Warden Duffy was familiar with defendant’s record, including many of the details of the second murder, he was not permitted to state his opinion as to how long defendant would serve or as to whether he would ever be paroled if given a life sentence.

It is settled that to assist the jury in fixing the penalty, it may be informed of the minimum term a person given a life sentence for first degree murder must serve and the minimum, average, and maximum terms actually being served for first degree murder in California. (People v. Friend, 47 Cal.2d 749 , 755 [ 306 P.2d 463 ]; People v. Green, 47 Cal.2d 209 , 217 [ 302 P.2d 307 ] ; People v. Barclay, 40 Cal.2d 146 , 158 [ 252 P.2d 321 ].) Although the practice of the Adult Authority and the law governing paroles may

Over objection, the prosecution was permitted to introduce nine records dealing with fourteen persons, some but not all of whom had been released or paroled by the Adult Authority after suffering two or more convictions of felonies. None of these persons had committed murder. Their crimes included robbery, burglary, escape, forgery, issuing worthless checks, using the mails to defraud, impersonating a government employee, petty theft, and damaging a jail. In admitting this evidence the trial court stated to the jury that “you as jurors having found this man guilty of murder of the first degree, obviously not only want to know, but it is your duty to know, what is going to happen to him in the future. So for that purpose I am admitting it.” Thus, the trial court in effect directed the jury that the Adult Authority’s release or parole of a few recidivists who were not murderers was relevant in determining its practice with respect to recidivist murderers. This direction is obviously a non sequitur. Murder is a far more serious offense than any of those reflected in the records introduced in evidence, and there is no basis in the evidence for assuming that the Adult Authority’s action in these few cases reflects its policy in dealing with first degree murderers, let alone such murderers who have murdered before.

The attorney general contends, however, that the records were admissible to impeach Warden Duffy’s testimony on cross-examination that the primary concern of the Adult Authority was protection of the public and that he did not

The determination of the relevancy of such evidence to the Adult Authority’s effectiveness in protecting the public and to its probable treatment of defendant would require an overall assessment of the operation of the Adult Authority. It would require knowledge of the bases of its action in these other eases and the policies such action reflected. Without such knowledge the jury had no way to determine whether such bases and policies reflected indifference to the public or might apply to defendant’s case and indicate a possibility or probability of his ultimate, parole.

We do not believe, however, that it would have been proper to admit the challenged records even if the prosecution had submitted sufficient additional evidence of the operation of the Adult Authority to establish the relevance of the records. To hold otherwise would turn every penalty trial of a person convicted of first degree murder into a trial of the Adult Authority and its wisdom in paroling any number of other prisoners. These consideratious compel limiting evidence of the Adult Authority’s practice in other eases to evidence of its practice in dealing with other first degree murderers.

In the present ease the error in admitting the challenged records was aggravated by the prosecuting attorney’s use of them in his argument to the jury to disparage the operation of the Adult Authority (People v. Caetano, 29 Cal.2d 616 , 619-620 [ 177 P.2d 1 ] ; People, v. Rogan, 1 Cal.2d 615 , 621-622 [ 36 P.2d 631 , 95 A.L.R. 560 ]), and his argument, unsupported by any evidence in the record, that the Adult Authority did not give proper consideration to recommendations of prosecuting attorneys with respect to punishment. (People v. Kirkes, 39 Cal.2d 719 , 724 [ 249 P.2d 1 ] ; People v. Evans,

The judgment and order denying a new trial are affirmed insofar as they relate to the adjudication that defendant is guilty of murder of the first degree and was sane at the time of the commission of the offense, but insofar as they relate to the penalty, the judgment and order denying a new trial are reversed and the cause is remanded for retrial and re-determination of the question of penalty only, and for the pronouncement of a new sentence and judgment in accord with such determination and the applicable law. (See People v. Green, 47 Cal.2d 209 , 236 [ 302 P.2d 307 ].)

Gibson, C. J., Schauer, J., Spence, J., Peters, J., and White, J., concurred.

I would affirm the judgment in its entirety.

Respondent’s petition for a rehearing was denied December 2, 1959.