People v. Turner

The defendant was convicted upon an information charging her with the offense of manslaughter, and appeals from the order denying a motion for a new trial and from the judgment of conviction.

Upon this appeal the principal grounds urged for a reversal are that the verdict is not sustained by the evidence ; that the court erred in its instructions to the jury; and that prejudicial error was committed in calling in a person, who was not a judge of any superior court of the state of California, to pass upon the defendant’s motion for a new trial. Several minor points are also set forth as reasons why the judgment herein should be reversed. By rea

The record shows that on and for a short period prior to the sixteenth of February, 1928, the defendant (an Indian girl), and the deceased, Robert DeClute, had been occupying a railroad car, used as a residence. On the evening of the sixteenth of February, 1928, the defendant and another Indian girl named Dressie Dickens spent a considerable time at a place referred to in the testimony as the Turner cabin, in the town of Alturas; that while they were at the Turner cabin, the deceased and the two Indian girls managed to consume^ a bottle of rubbing alcohol which the deceased brought with him to the Turner cabin; that the three remained in the Turner cabin until about 1 o’clock of the following morning, playing cards and drinking the alcohol referred to; that at about 1 A. M. on the seventeenth day of February, 1928, the deceased and the two Indian girls left the Turner cabin and went to the railroad car occupied by the deceased, as hereinbefore referred to, upon the request of the deceased and upon his statement that he had some more liquor there; that upon reaching the railroad ear, the deceased produced a gallon jug of liquor mentioned in the testimony as “Jackass Whiskey” and “Jackass Brandy,” and from this all three of the parties drank more or less, the deceased drinking until he became drunken. At about 2:30 A. M. the Indian girl named Dressie Dickens left the railroad car and went home. The deceased and the defendant remained in the car, and when the witness named Dressie Dickens departed therefrom, were sitting on a bed, apparently friendly. From this time on, as to what occurred depends entirely upon the testimony of the defendant, and occurred while both of the parties in the car were in an intoxicated condition. From the testimony of the

The record shows, as the foregoing summary indicates, that the only question to be decided by the jury was whether the defendant acted in necessary self-defense, or whether the circumstances were such as to justify a reasonable person in so acting. To aid the jury in answering this question, the court gave the jury, among others, the following instructions :

“Instruction No. 8.

“You are instructed, lady and gentlemen of the jury, that the defendant in this case has sought to justify the killing of Robert DeClute, by attempting to show that she acted in self-defense.

“You are further instructed that the burden of proving justification is upon the defendant.

“Instruction No. 9.

“You are instructed, members of the jury, that to justify the commission of a homicide in self-defense, there must exist a necessity, actual or apparent. The danger must appear to the person assailed to be so urgent and pressing that in order to save his own life or to prevent his receiving great bodily harm, the killing of his assailant is absolutely, or at least reasonably necessary. A defendant may not justify the taking of human life upon the belief that danger is about to become imminent, or that it will in the future become imminent; it is not enough that there should exist in the mind of the defendant a belief that he is in actual peril. It must appear that he believed himself in such peril, but that, as a reasonable person, he had sufficient grounds for his belief. The killing must be done under an honest and well founded belief, that it is necessary for the party killing, to take the life of the deceased at that time,

to save himself from great bodily harm. If the circumstances as they appear to the defendant, would have induced a reasonable man, so situated, to believe that there was a reasonable mode available to him to escape from danger of death or great bodily harm, the danger thereof would not then be imminent, and the killing would not be justifiable. It is for the jury to determine whether, as a reasonable man, the defendant was justified in believing himself in danger.”

“Instruction No. 12.

“The court instructs you that the duty of the defendant to flee rather than to kill, if retreat is possible, only applies where the defendant is the assailant; but when a defendant who is himself without fault, is suddenly attacked in a way that puts his life or bodily safety at imminent hazard, he is not compelled to fly (flee) or to consider the proposition of flying (fleeing), but may stand his ground and defend himself to the extent of taking the life of the assailant, if that be reasonably necessary.”

While there is some doubt as to the state of the record concerning the giving of instruction number 8, whether it was consented to by counsel for the defendant, we are satisfied that the record is in such condition that the defendant is not bound by anything that appears therein. This instruction appears to have been given on the theory that section 1105 of the Penal Code, which reads as follows: “Upon a trial for murder, the commission of the homicide by the defendant being proved, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable,” is applicable where an information or indictment charges manslaughter. This, however, is not the law. The section applies only where murder is charged, and the circumstances do not show any mitigating or justifying facts. The rule is aptly stated in 13 California Jurisprudence, page 736: “If the proof on the part of the prosecution tends to show that the homicide amounts only to manslaughter, or that it was justifiable or excusable, then no burden is placed on defendant to prove any circumstances or mitigation or that justify or excuse it.” Here, the charge against the defendant is that of manslaughter

Section 1105 of the Penal Code has been considered a number of times both by the supreme court and district court of appeal, and the holding in all of the cases is to the effect that the burden does not shift when the testimony introduced on the part of the People shows that the offense amounts only to manslaughter, or that there are mitigating or justifying circumstances, and, also, that when the testimony introduced on the part of the prosecution shows that the offense amounts only to manslaughter, section 1105 of the Penal Code is inapplicable and should not be given even though in some of the cases the giving of the instruction is held not to be erroneous. There is no California case holding that when a defendant is charged only with manslaughter, the burden of proof rests upon the defendant. Such is not the meaning of the section, as we interpret it, and the giving of the instruction in this case we think prejudicial error.

Again, in instruction number 9, we find the following sentence: “If the circumstances, as they appear to the defendant, would have induced a reasonable man so situated, to believe that there was a reasonable mode available to him to escape from danger of death or great bodily harm, the danger thereof would not then be imminent and the killing would not be justifiable.” While in some states this rule is followed, the modern trend is to the contrary, and the

In the case of People v. Maughs, 149 Cal. 253 [ 86 Pac. 187 ], an almost identical instruction was given to the jury, and in an elaborate opinion the supreme court, in the Maughs case, held the giving of such instruction prejudicial error, and further held that the giving of an instruction, as we find in instruction number 12 in this case, not sufficient to cure the error. The court, in considering the subsequent instruction given in the Maughs case as to the nonnecessity of retreating, used the following language: “Nor is it any answer to this objection that the court elsewhere gave a correct instruction upon the subject. The result served but to confuse the jury and to render it impossible to determine whether, in their deliberations, they followed the law as correctly or as incorrectly set before them.” (Citing People v. Campbell, 30 Cal. 312 , People v. Anderson, 44 Cal. 65 , People v. Wong, etc., 54 Cal. 151 [ 35 Am. Rep. 69 ], People v. Messersmith, 57 Cal. 757 , People v. Thompson, 92 Cal. 506 [ 28 Pac. 589 ], and People v. Pearne, 118 Cal. 154 [ 50 Pac. 376 ].) The further objection that the language which we have just quoted "from instruction number 9 is indefinite and uncertain as to its meaning, we also think well taken. Just what is “the reasonable mode available to him to escape from danger of death, etc.,” is not specified. Was it by retreating, or was it by using other available means to repel the threatened assault of the deceased, such as by striking him over the head with the rifle instead of discharging the load therein contained i We conclude that it means that the defendant should have retreated, if possible, which, of course, is not a correct statement of the law.

The arriving at a conclusion in this cause necessarily depending upon the interpretation and credibility to be given to the testimony of the defendant, as she was the sole witness to the affair, it follows that there is no room for the application of section 4½ of article VI of the constitution. Upon the record, the testimony would as readily lead to the conclusion that the defendant was justified, as to the conclusion that she was not. While the words used by the deceased, taken alone, were not sufficient to justify the acts of the defendant; yet, in view of the threats of the

Pinch, P. J., and Hart, J., concurred.