People v. Fain

Defendant was charged with, tried and convicted of, manslaughter (violation Pen. Code, § 192, subd. 3(a)). Defendant’s motion for new trial was denied, and he was granted probation for a period of five years with the first six months in custody. He has appealed from the judgment and from the order denying his motion for a new trial. The facts shown by the record before us are as follows:

Immediately after midnight on December 20, 1958, the deceased, Donald Bruce Miehie, was at a Drive-In café called Lawton’s Drive-In on Morningside Way near El Cajon Boulevard in the city of San Diego in company of three of his friends. He was seen by one of them to enter a 1956 white convertible Chevrolet on the passenger’s side, with an unidentified person driving. At about this same time three other young men named Sweetland, Tenent and Phillips, all of whom were acquainted with this defendant, also departed from the same Drive-In by the same route, going toward El Cajon Boulevard on Morningside Way, thence west on El Cajon Boulevard. They were in a red Austin Healy sports car going about 35 miles per hour when the defendant overtook them on El Cajon Boulevard. He raced his engine, pulling forward and then dropping back even with them, repeating this procedure several times. The person in the passenger seat put his head out the window and is identified by the three persons in the Austin Healy as the deceased. The defendant during this time was clearly seen by the same

The defendant testified that he remembered nothing of what happened from the time he was at Lawton’s Drive-In until he woke up in the hospital sometime the next day.

Defendant’s first complaint is that the court erred in refusing to admit in evidence the testimony of the witness Buss to the effect that within five minutes after the accident occurred, while defendant was lying on the lawn in an appar

“The basis for this circumstantial probability of trustworthiness is ‘that in the stress of nervous excitement the reflective faculties may be stilled and the utterance may become the unreflecting and sincere expression of one’s actual impressions and belief’. To render them admissible it is required that (1) there must be some occurrence startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance; and (3) the utterance must relate to the circumstance of the occurrence preceding it. (Wigmore on Evidence, [2d ed.] § 1750.)”

The court quotes with approval from Roach v. Great Northern Ry. Co., 133 Minn. 257 [ 158 N.W. 232 ], as follows: “ ‘In passing upon the admissibility of testimony claimed to constitute a part of the res gestae, the trial court determines whether unsworn statements are so accredited that they may go to the jury and be weighed and valued by it, and in determining this it considers whether the statements are spontaneous, whether there was an opportunity of fabrication or

The court likewise quotes with approval from Coryell v. Clifford F. Reid, Inc., 117 Cal.App. 534 [ 4 P.2d 295 ], as follows: “ ‘Again we hold that the trial court before whom the witness appeared is better prepared to pass upon the evidence upon which the admissibility of such statements depends than is an appellate court, and his ruling should not be disturbed unless he has abused his discretion. ’ ”

The general rule adopted for California by the Showalter case regarding declarations as a part of the res gestae has been followed in numerous supreme and appellate court decisions since that time. (People v. Costa, 40 Cal.2d 160 , 168 [ 252 P.2d 1 ]; Dillon v. Wallace, 148 Cal.App.2d 447 , 451 [5] [ 306 P.2d 1044 ]; People v. Haag, 127 Cal.App.2d 93 , 101 [5] [ 273 P.2d 328 ].) In Lane v. Pacific Greyhound Lines, 26 Cal.2d 575 , 581 [ 160 P.2d 21 ], the trial court’s ruling, which was corrected by the Supreme Court, was not based on its own discretionary judgment as to whether or not the facts before it warranted the application of the res gestae principle to the statement, but was based on an entirely different ground, to wit, that a statement of an employee about the cause of an accident could not bind a principal. Thus the Supreme Court found that the statement involved was permissible as a part of the res gestate, which the trial court overlooked entirely. The necessity so clearly explained in the Showalter case of placing discretion in the trial judge, in admitting or refusing to admit declarations claimed to be a part of the res gestae, has been recognized and applied in later cases. (Dolberg v. Pacific Electric Ry. Co., 126 Cal.App.2d 487 , 489 [3] [ 272 P.2d 527 ].) Considering the lapse of time here involved, the doubt as to whether 'the defendant was conscious or unconscious, or even understood the officer’s question, the prior convictions for speeding, the loss of license and the recovery thereof the day before, all of which were likely to weigh heavily on the conscious or subconscious mind of the defendant, thus producing strong motives for fabrication and all the other attendant circumstances, we are unable to affirmatively say that the trial court’s discretion was abused or that prejudicial error resulted.

Next the defendant contends the court erred in denying the application of the appellant for a three-day adjournment to obtain the testimony of a witness. It must be remembered that this application for a continuance was not made until after the prosecution ease was all in, in spite of the fact that defense counsel by his own admission had known about this witness for a long time prior to the trial. Defense counsel orally represented to the trial court that he had attempted two days prior to the trial to have the witness subpoenaed and had been unable to do so. No affidavits were presented, a detailed statement of exactly what the witness would testify to was not presented, and even the statements of counsel were third-hand and somewhat nebulous. Defendant’s application for a continuance could easily have been presented to the court prior to the commencement of the trial. It was not a case of emergency so that it was perfectly feasible to present affidavits. Had the application been made prior to the commencement of the trial on adequate affidavits no doubt the trial court would have granted the continuance, but since the application was presented at a time when the trial was nearly over and without exact statements of what the witness would testify to and without appropriate affidavits, we cannot say that the court in any way abused its discretion. (People v. Rokes, 18 Cal.App.2d 689 , 694 [8] [ 64 P.2d 746 ]; People v. Beal, 108 Cal.App.2d 200 , 205 [11] [ 239 P.2d 84 ].)

Next the defendant contends that the court erred in its discussion with the jury after they retired for deliberation and before returning a verdict. The jury retired at 10:44 a. m. At 4:40 p. m. they were brought into court and they were asked if there was any possibility of their reaching a verdict. They weré also asked how they stood numerically, without respect to whether they were for conviction or acquittal. The foreman stated he believed they were hopelessly deadlocked and that “One of the jurors has admittedly had

“The Court: I will again tell you, you are supposed to consider the evidence in the case that was elicited from the witnesses on the stand and not any prejudices you may have. We are not here to try prejudices. I have instructed you that you are not to try prejudices you may have against any of the witnesses or the defendant or anyone else. You are supposed to consider the evidence and weigh it in accordance with the rules I gave you. That is all I am asking you to do and I think any reasonable person can go out and lay aside their prejudice and consider this evidence as to the manner in which I told you to consider it. If you have any objection to the evidence, if you think the evidence is insufficient, that is up to you, but consider the evidence in the light that I instructed you previously. Go out and deliberate.”

The defendant does not contend that the above-quoted statement is erroneous as a proposition of law. What he does contend is that at the particular time the question was asked and answered and under the particular circumstances that the direction was given by the court it amounted to an instruction of one juror to change her vote. With this we cannot agree. The court did not direct the jury to bring in any particular verdict, it did not direct them to agree at all, and it did not threaten to keep them out for any unreasonable length of time nor even suggest that they would be kept out for any considerable further time. The court did not indicate what it thought of the evidence nor did it add any argumentative voice or suggestion that they ought to agree. It may be that the judge could have guessed as to how the jury stood, but the judge did not suggest that the evidence pointed in any particular direction or that he had any views on it being all one way. Nor did he suggest that the jury reach a verdict promptly nor that the jury ought to agree. The eases cited by defendant are all distinguishable from the case at bar. People v. Crowley, 101 Cal.App.2d 71 [ 224 P.2d 748 ] contains severely argumentative material from the judge to the jury as to why they ought to agree, coupled with a specific limitation of time. In People v. Walker, 93 Cal.App.2d 818 [ 209 P.2d 834 ], the court again indulged in strong argument

Defendant next contends that the court erred in not granting a new trial on the ground of newly discovered evidence.

“To entitle a party to a new trial on the ground of newly discovered evidence it must appear that the evidence is not merely cumulative, but is material, and that it is such as to render a different result probable on retrial; and that the party could not with reasonable diligence have discovered and produced it at the trial.” (People v. Sheran, 49 Cal.2d 101 , 111 [10] [ 315 P.2d 5 ].)

“ It has been repeatedly held that a motion for a new trial is addressed to the sound discretion of the trial court, and its action will not be disturbed except for a clear abuse of discretion.” (People v. McGarry, 42 Cal.2d 429 [ 267 P.2d 254 ].)

The affidavits presented by defendant in support of his motion are merely an elucidation of the basic material upon which he had defectively asked for a continuance. His