People v. Schwab

Pursuant to a verdict, appellant was convicted of burglary in the first degree and of assault with a deadly weapon with intent to commit murder. He seeks a reversal of the judgment which sentenced him to prison for two consecutive terms and from the order denying his motion for a new trial on the grounds that (1) the evidence is insufficient to sustain the judgments as to either count and (2) errors in giving and refusing instructions.

The Evidence

Appellant knocked down and cut William Duncan about 1 o’clock in the morning of July 3, 1954, in the latter’s home. In view of his contention that he was unconscious at the time of his crime, it is necessary to review the occurrences of the

Appellant and his wife Irene were married in 1940. Their two children were Johnny and Carol, aged 9 and 10. Prior to May 1954 they had resided in San Pedro, but at that time, Irene sued for divorce and Schwab moved to Buena Park. After the action was filed, Irene’s lawyer requested Mr. and Mrs. Duncan to call the police if appellant should disturb his wife and children. This the Duncans undertook to do. About the middle of June 1954 after Mrs. Duncan observed appellant enter his wife’s home, she telephoned Mrs. Schwab, inquired as to her safety. Mr. Duncan and his father-in-law approached the rear of the home to watch. Within 10 minutes appellant departed for his automobile parked about three blocks away. To be sure that appellant was out of the way, Duncan walked along the same street on the opposite side, but did not speak.

Prior to Saturday, July 3, Irene confided to the Duncans that appellant had beaten her and that she feared her husband would kill her. On Sunday, June 27, while the Duncans were at Peck’s Park, appellant and his friend Gutierrez found Carol and the Duncan child at play in the Duncan car and questioned them. When Duncan saw appellant and his companion approaching, he went forth to meet them, followed by Mrs. Martin, his mother-in-law. When asked by Duncan what they were doing, unpleasant words passed between them. Duncan became angry and told them to leave. Mrs. Martin told Gutierrez that he was the same man that had called at her house and asked questions, she was called “a damn liar.” More angry words passed and Duncan told them to leave. They made their exit with the declaration they were going for the police. Instead, they obtained an order for Duncan to show cause why he should not be restrained from interfering with appellant’s reasonable visits to his children. Such order was served on Duncan about 6 p.m. on July 2. That same evening, little Carol retired about 9:30 and was awakened by a knocking on the back door. When she heard footsteps coming to the front door, she looked through the window and saw appellant as he entered the front. Carol made her escape through the back door and attempted to open Duncan’s rear door. Thereupon, appellant came out with an open knife and a flashlight in his hands, threw down the knife and opened Duncan’s screen door. With his left hand he then picked up the knife and ordered Carol to go into her house.

About the time he was pushing into the home of the Dun-cans, they were awakened by Irene’s rapping on their window as she asked them to call the police. While the women were trying to reach the police by telephone, Mr. Duncan dressed, passed through his living room and dining room where he turned on the light and saw appellant enter the kitchen with an open knife in his right hand and a flashlight in his left. Having first inquired, “Where is Irene?” appellant said, “This is it. I am going to kill you.” With that he kicked Duncan in the groin, causing him to double up with pain. As appellant followed with blows and cuts with his knife, Dunean went from dining room to a bedroom and back to dining room where the wretched man collapsed. Appellant then stood over him and said: “There, I guess that will take care of you.” As appellant was leaving the house, Mrs. Dunean pointed at him an unloaded .22 rifle she had gotten from her closet, and with emphatic speech ordered him to get out. That he hastily did.

Duncan was bleeding from multiple lacerations. He was conveyed under an oxygen tent to the hospital and given blood transfusions. It required two doctors and three and a half hours to sew up the wounds with about 200 sutures. One cut extended 34 centimeters from the base of the neck down the left side, severing all the superficial posterior neck muscles. Ugly wounds had been inflicted upon the left wrist and the deltoid muscle. An eight centimeter deep cut severed most of the left trapezius muscle. The left jaw was cut “from the ear lobe to the mandibular notch” slicing a salivary gland and causing it to atrophy. A seven centimeter furrow on Duncan’s left forehead severed face muscles. Cuts sliced through the left lower anterior chest, and the base of the right heel. The victim of this frenzied panther passed near death’s door. Although treated with antibiotics, his condition was precarious. Five days later he suffered a pulmonary embolus. Only by the ministrations of oxygen and indicated remedies were the doctors able to control the blood clotting in the lungs.

Schwab testified that he had gone to the Dunean home to talk to his wife; that he had no intention of injuring either her or Dunean; that Dunean met him in the kitchen and hit him in the face; that the next thing he remembers was his

By virtue of appellant’s testimony that he had no memory of any of his acts after meeting Mr. Duncan in the latter’s home about 1:30 a.m. July 3, he contends that he could not be guilty of either burglary or assault with a deadly weapon. A determination of that fact is not as easy as it appears to appellant. If the jury had had no proof before them except his testimony, they might have made a finding favorable to appellant’s claim. But it was their duty to consider all the facts detailed from the witness stand. They were cognizant of the long controversy of appellant and Irene; of his having been ordered not to molest her; of counsel’s request that Duncan watch over her and notify the police in the event appellant should disturb her.

It was proved that appellant had obtained a court order that he might see his children but had been frustrated in his attempts to visit them; that after his consultation with a neighbor of Mrs. Schwab, appellant and Gutierrez had gone to Peck’s Park and had seen one of his children and they were approached by Duncan who used abusive language to the men and threatened them with the police. At that time Mrs. Martin reminded Gutierrez how he, at her home, had called her a “damn liar”; how other vile words were then used and Duncan drove them from the park, followed them with his dog along the street to appellant’s automobile and ordered them to get out or they would get it; how the two men departed for the police station and reported the incident. About June 30 appellant talked with his son on the telephone and was told by the child the latter and his mother were going away and would not see appellant anymore. Such statement made appellant “feel very bad.” On July 2, appellant vainly attempted to engage Irene in conversation by telephone. Failing to do so, he drank six cans of beer. From that time, appellant pursued his purpose without success. About 12:30 a.m. he went to her place of residence, and thence into Duncan’s home where the tragedy occurred.

It follows that if the jury believed appellant entered Duncan’s home to murder or to assault the sleeping man with a deadly weapon, he was guilty of burglary the moment he entered. (People v. Franklin, 106 Cal.App.2d 528 , 530 [ 235 P.2d 402 ] ; People v. Stewart, 113 Cal.App.2d 687 , 690 [ 248 P.2d 768 ] ; People v. Smith, 84 Cal.App.2d 509 , 511 [ 190 P.2d 941 ].) Where the circumstances of a burglary reasonably indicate that the prisoner’s intention was to commit a felony, a conviction will not be disturbed on appeal. (People v. Swenson, 28 Cal.App.2d 636 , 639 [ 83 P.2d 70 ].) Even though there had been contradictory evidence such as to warrant a contrary finding, the reviewing court will not substitute its finding for that of the jury. (People v. Lynch, 60 Cal.App.2d 133 , 139 [ 140 P.2d 418 ].)

When appellant left the back door of his wife’s apartment, he picked up his knife he had just thrown down and put it into his right hand. When he met Duncan, his outcry did not sound like that of an unconscious person. Eather did it express a heart of purpose and resolve: “This is it. I am going to kill you.” Slamming his boot into Duncan’s groin looks more like the act of a cool, calculating, vengeful killer, aiming to mow down his antagonist at a single blow. Neither does the phenomenon of an angry person’s entering the home of his enemy at midnight appear to have been the result of a paralyzed brain; nor do the vicious cuts and blows rained by him on a fallen foe evidence a benumbed

Appellant’s contention that he testified that he was unconscious at the time of his crimes and therefore should have been acquitted is answered by the law that the jury were not obliged to believe him. (People v. Marble, 8 Cal.2d 139 , 140 [ 64 P.2d 135 ].)

Instructions Not Prejudicial

Appellant assigns as prejudicial the giving of the following instruction:

“The flight of a person immediately after the commission of a crime, or after he is accused of a crime that has been committed, is not sufficient in itself to establish his guilt, but is a fact which, if proved, may be considered by you in the light of all other proved facts in deciding the question of his guilt or innocence. Whether or not evidence of flight shows a consciousness of guilt, and the significance to be attached to such a circumstance, are matters for your determination.”

His argument is that inasmuch as the proof was that he departed from Duncan’s home under the emphatic command of Mrs. Duncan and her rifle, that he ambled into the dark hills near San Pedro and later surrendered to the police, he

There was no error in the instruction. The facts are some proof of a purpose to escape detection. While his flight may not have been sufficient in itself to establish guilt, his movements were such as to justify their consideration as evidence of a consciousness of guilt and the finding of the weight to be given them was a function of the jury. (Pen. Code, § 1127c.) The jury were not arbitrary in reasoning that his flight to the sombre hills and his loitering there or elsewhere in secret for many hours indicated his own belief that he was guilty. (People v. Easton, 148 Cal. 50 , 53 [ 82 P. 840 ].)

The following instruction is assigned as prejudicial: '

“When a person commits an act without being conscious ; thereof, he does not thereby commit a crime even though such j an act would constitute a crime when committed by a person ; when conscious.

“Although the law recognizes insanity, when pleaded, as | a defense to a charge of crime, it deals with the question raised by such a plea in an independent proceeding and you are not concerned with such a question in this trial.

“There is no plea of insanity in this case!”

No prejudice could have resulted from such instruction. It did not direct the jury that appellant must have pleaded insanity to entitle him to a consideration of his argument that i he was unconscious. The mention of “an independent proceeding” under an insanity plea did not tend to relieve the ¡ jury of the duty to determine whether appellant was uncon- ' scions. The jury are presumed to have been intelligent, endowed with fair understanding, capable of interpreting ■ English words in ordinary use. (People v. Glaze, 139 Cal. 154 ,164 [ 72 P. 965 ].) There is nothing in the instruction calculated to induce the jury to believe that the word “unconsciousness” is synonymous with “insanity.” The in- ¡ struction was not such as was calculated to advise the jury that the asserted unconsciousness was not an issue.

There is too much direct evidence in this record to warrant such an instruction as that proposed. Appellant entered the apartments of Irene, his estranged wife, at midnight after futile efforts to visit her. Disappointed at not finding her, he armed himself with a knife and marched to the nearby home of Duncan who had frustrated his recent attempts to converse with Irene. When he called his wife’s name, Duncan appeared, to resist the intruder. Promptly he laid Duncan low with his kick in the groin, and, slashing with his knife until Duncan was a mutilated beaten man at death’s door. That is not circumstantial evidence; it is direct.

Whatever might be said of the instructions given or rejected, it cannot reasonably be said that any ruling with respect to instructions resulted in a miscarriage of justice. (Const, art. VI, § 4½.)

Judgment and order denying motion for new trial are affirmed.

McComb, J., and Pox, J., concurred.