People v. Nielson

This is an appeal from a judgment of the Mendocino County Superior Court based upon a jury verdict finding appellant guilty of murder of the second degree, and from the order denying motion for new trial.

On November 30, 1959, appellant was residing in a trailer. The deceased, Lew Poster, accompanied by one Sally Brown, visited the trailer of a Mr. Richardson, which was located about 40 feet distant from that of appellant. Theretofore appellant and Sally Brown had lived together for several years without marrying, but recently she had left appellant and taken up with Poster who was separated from his wife and family. Poster, Sally and Richardson engaged in conversation and card playing. They drank several drinks of hard liquor. Appellant came to the Richardson trailer about 45 minutes after Poster and Sally had arrived. Upon entering the trailer he greeted the others amicably and the group talked and visited for a while, then appellant and Sally left the Richardson trailer, she having said something to him about taking her to his trailer. Appellant testified that she said she had a message from her children to give to him. Appellant told Foster they would return in a few minutes and the record does not show that Foster objected to her leaving with appellant. Upon arriving at appellant’s trailer, Sally, who was intoxicated, went to sleep on the daybed. Appellant turned out the lights and began watching television. In about 30 minutes Foster left the Richardson trailer, remarking that he was “going to go over and try to get Sally to come home” with him. Richardson testified he said to Foster, “Look, you have been drinking. Just leave them alone and come back tomorrow and talk it out.” Foster nevertheless went to appellant’s trailer. His attitude as he left Richardson did not appear unfriendly or belligerent. He was, however, grossly intoxicated. A blood analysis taken after his death revealed an alcoholic blood com

Later he wrote out a statement for the officers and signed it. It was introduced in evidence. In substance it was as follows: Appellant, who was unemployed at the time, had driven to a neighboring town and had come home around 5 p. m. He went to his trailer and turned on television. About 6 p. m. Sally came over and fell asleep on the daybed in the front of the trailer. About 8 p. m., with all the lights out, he heard someone knocking on the door, which he didn’t answer until it got louder and louder and someone began trying to pull the door open. He got up and unlocked the door to see who it was. As he unlocked it a man pulled the door open and started to step in. He grabbed one of the knives lying on a table next to the door and stuck it in the man’s stomach. Neither said a word to the other. The man looked at him with a blank stare, turned and walked away. Appellant closed the door and sat down. When the trailer camp manager knocked on his door, he answered the door, this time with a knife in his hand. He was told that he was wanted across the driveway, and when he arrived there the police were there and the man he had stabbed was lying in front of Richardson’s trailer.

Appellant assigns error in the court’s refusal to give certain instructions and in the giving of certain instructions on confessions and admissions and also argues that the court should have, at the close of the state’s case, directed an acquittal. Appellant further contends that the evidence was insufficient to support a conviction of murder of the second degree and that the court should have limited the issue to manslaughter. Further, appellant contends that the court unduly limited his voir dire examination of the jury panel and was guilty of misconduct during the examination of the jury panel and was guilty of misconduct during the trial.

The court instructed the jury that the evidence was

Appellant contends the court erred in refusing to give at his request the following instruction:

"In considering whether the circumstances surrounding the killing of the decedent were such as to excite the fears of a reasonable man placed in a similar position, you are entitled to take into consideration the following evidence in this ease:

“1. That, approximately two weeks before the episode in

volved in this ease, the decedent had made a physical attack upon the defendant.

“2. That, approximately one week before the episode involved in this case, the defendant had suffered a heart attack and, at the time of the episode involved in this case, the defendant was concerned about the effect upon his physical condition of a physical encounter with the decedent.

“3. That the defendant is, to some extent, disabled by an acute arthritic condition.

“4. That the decedent was apparently a robust, energetic, younger, and heavier man than the defendant, who is a slightly built person in poor health.

“5. That the decedent was apparently intoxicated.”

Appellant argues that since evidence as to matters contained in the instruction had been introduced it was error to refuse his request. But the court gave standard instructions on self-defense, including instructions on justifiable homicide by a householder in defense of his habitation and these instructions informed the jury that the person claiming self-defense or justification must act as a reasonable man placed in the same circumstances or a like situation as the appellant. Under these instructions the jury could consider the very circumstances which the requested instruction emphasized. We think the jury must have understood that if they accepted as true the testimony as to the prior attack and the state of health of defendant, the disparity in the size of the two men and the decedent’s intoxication they could consider all of these matters in determining whether or not the appellant acted in self-defense or the homicide was justified. Any needed emphasis could be, and in fact was, supplied by counsel’s argument to the jury and it is not to be supposed from the record that the giving of the additional and detailed instruction requested was necessary. We find no error in the refusal to give the requested instruction.

Appellant’s contention that the court should have ordered an acquittal at the close of the prosecution’s ease is without merit. His argument is that the corpus delicti had not been established independently of extrajudicial statements of the appellant and that, assuming that the corpus delicti had been so established, still the People’s proof showed that the killing was justified. The death of Poster had been shown and the other element necessary to prove the corpus delicti, that is, that the death had been caused by some criminal agency was sufficiently shown by the nature of the wound as described

Appellant’s contention that as a matter of law the People’s proof showed the killing was justified is untenable. We think it unnecessary to discuss this assignment at length since it is apparent from the record and the portions thereof already stated that it was for the jury to determine whether or not appellant acted with justification.

Appellant contends that the trial court unduly limited his counsel’s voir dire examination of the jury panel. It appears that when the jury box had been first filled and the remaining members of the panel were in the court room, the trial judge questioned those in the box concerning their knowledge of the case. Several said they had heard about the homicide or had read about it, but all stated they had formed no opinion on the issue of guilt or innocence. When the court had concluded its questions, counsel for the appellant began examining a juror who does not appear to have made any specific response and of this juror counsel asked if he had heard anything about the facts of the case or had read anything about it. The court informed counsel that the matter had been covered and counsel requested opportunity to ask the question individually of each of the members of the panel in the box. This was refused. Counsel thereafter, as appellant now argues, refrained from asking any other prospective juror whether he or she had heard anything about the ease, even though after a number had been excused on peremptory challenges, others had been called to the box from the body of the panel. The voir dire proceedings are a part of the reporter’s transcript and our examination thereof convinces us that there was no unfairness toward appellant in the selection of the jury. Counsel for the appellant examined the individual jurors rather extensively and announced himself as satisfied with the jury at a time when he possessed many peremptory challenges which he had not used. It is true that the question about knowledge of the ease was not repeated to the several jurors

Turning now to the charges of misconduct, appellant asserts that the trial judge misconducted himself in that whenever he addressed remarks to appellant’s counsel he did so in a gruff, curt, harsh and irritating tone of voice and used facial expressions of irritation and annoyance. Of course these matters do not appear in the record since there were no objections made during the trial to the alleged misconduct of the judge. It was only on the motion for a new trial that these contentions were presented. The proper time to present such matters is during the trial and counsel is not permitted to wait until the result of the trial is ascertained before acquainting the court with his belief that he is being unfairly treated. (People v. Cox, 174 Cal.App.2d 30 , 41 [ 344 P.2d 399 ].)

The court gave instructions defining the terms “confession” and “admission,” stating concerning confessions that the term meant declarations of participation in the crime for which the defendant is on trial of such nature that no other inference than the guilt of defendant may be drawn therefrom. The court continued as follows: “The law absolutely forbids you to consider a confession in determining the innocence or guilt of a defendant unless the confession was voluntarily made, and although the court has admitted evidence tending to show that defendant made a confession, you must disregard the asserted confession entirely unless you, yourselves, by your own weighing of all the evidence, your own judgment of the credibility of witnesses, and your own reasonable deductions conclude that the alleged confession not only was made, but was voluntary. ” It is clear from the record that no statement of the appellant in the nature of a confession was proved, although the appellant, as hereinbefore related, made various conflicting statements, some of which constituted admissions; none nor all of the statements could