People v. Lewis

Appellant was convicted of first degree murder and the penalty was fixed at life imprisonment. A motion for a new trial was denied. He has appealed from the judgment and the order denying the motion for a new trial.

At about noon on April 30th, the deceased, Wallace Millard Lucas, was seen by Sergeant Allen of the California Highway Patrol on United States Highway 40A some 3 or 4 miles west of Portola. At that time he was clothed only in his underclothing, socks and shoes. He was literally covered with blood. The traffic officer immediately took him to the Western Pacific Hospital in Portola, where he received emergency medical treatment from Doctor Charles W. Brown. On the way to the hospital he became unconscious and upon entry thereto he was in a state of deep shock. Doctor Brown testified that he had three distinct wounds on his body, consisting of a scalp wound on the back of his head, which was a stellate type of laceration, and two sharp lacerations, one on each side of his chest. The laceration on the right side extended down through the skin, muscles, ribs and into the chest cavity, while the one on the left side extended through the chest wall to the ribs. The chest wounds were inflicted by a sharp instrument. The laceration on the back of his head extended down to the skull. He remained in a critical condition and in immediate danger of death from the time he was received at the hospital until the time of his death which occurred at 5:30 on the afternoon of May 3, 1959.

An autopsy performed by Doctor V. A. Salvadorini, a pathologist, on the body of Lucas disclosed that he had received a lacerated wound at the back of his head, a clear cut fracture of the skull extending from the area of the laceration on his scalp to just beyond the midpoint of his head on the right side. His brain was swollen and there were areas of contusion at several points. There was a bruise on the top of the left shoulder of Lucas and on his left chest just below

It was also Doctor Brown’s opinion that the injuries sustained by Lucas helped precipitate the coronary thrombosis which was the immediate cause of death.

Likewise, in the opinion of Doctor Willard S. Bross, another attending physician, the injuries sustained by Lucas could have precipitated a heart attack and in fact did.

After Lucas was taken to the hospital Sergeant Allen returned to the point on the road where he had picked up Lucas. The footprints of Lucas were discovered and traced back through the adjoining woods to the Schulz home where the attack had taken place.

The area near the Schulz home was such as to indicate that it was uninhabited, as a second house near the Schulz home was boarded up and had the appearance of not being lived in. There were no vehicles parked at the houses on that day, nor was anyone at the scene. Mr. and Mrs. Schulz had left their home at approximately 10 a. m. on the morning of the 30th and did not return until after 1 o’clock that afternoon.

In front of the Schulz home was found a large pool of hlood. There were blood stains from the front corner of the

On May 1st, the day after the robbery, two men from the sheriff’s office conducted a search of the area near the scene of the crime. They proceeded east from the scene along both sides of United States Highway 40A. They checked all culverts and brush on both sides of the road. When they arrived at a creek which traversed this road, they discovered the victim’s pants and shirt, a shingling hatchet, and a cigarette lighter. There was still blood on the shirt and pants. The hatchet appeared to be wrapped in the shirt. The hatchet contained a piece of tissue, a trace of blood and several short grey human hairs. When examined with a microscope the tissue had the appearance of flesh. In the pocket of the shirt was discovered a bus ticket and a property receipt which contained the victim’s signature. In the pocket of the trousers were found the victim’s keys and a credit card. A hatchet similar to the one found had been used by Mr. Schulz in the garage at his home, and this was the last place he had seen it.

Shortly after noon on April 30th, Officer Gamble of the California Highway Patrol was on duty about 10 miles east of Portóla, and at that time he observed appellant driving east in a grey Plymouth station wagon.

When appellant arrived in Reno he was placed under arrest. At that time he was wearing a white shirt, a pair of pants, and a pair of shoes. There were splatters of blood in the area of the cuffs of the trousers worn by appellant. There was blood on the shirt worn by the appellant and on his shoes.

At the time of his arrest the appellant had in his possession the wallet of Mr. Lucas which contained various identification and credit cards, as well as other papers. He likewise had in his possession two bail receipts which contained the signature of Mr. Lucas, and a $50 traveler’s check which also contained his signature and which had been given to Lucas the previous day. In addition, he had ten $100 bills and $64.96 in other change, making a total of $1,084.96. Mr. Lucas had been in Modesto, California, and had left there some time during the late afternoon of April 28th to return to Quincy. At that time he had $1,073.98 in his possession.

Just a few weeks before the murder the appellant found it necessary to borrow clothes to wear to work. He twice asked to borrow money from his roommate. The last such

When he was being booked the appellant gave the name of Lucas and claimed that the various identification cards which bore Lucas’s name were his. In the course of checking the wallets which the appellant had in his possession, two fishing licenses were discovered, one issued to Mr. Lucas and the second to the appellant. The obvious discrepancy in age which appeared on the Lucas license and the age of the appellant was pointed out to appellant who continued to insist that he was Lucas. Eventually, after some discussion he admitted his identity.

Later that day the appellant was interviewed by Officer Gamble of the California Highway Patrol who asked him if he had earned the money in his possession by working. The appellant stated that he had brought it with him from Illinois. He denied ever having known Lucas. When asked where he had obtained Lucas’s wallet and papers, he stated he had found them on the seat of the car and put them in his pocket. When asked where he had been between the hours of 10 o’clock and noon, he said he was not sure but possibly in downtown Reno. When asked what his connection was with Mr. Sprinkel, the owner of the automobile, he stated that he and Sprinkel, together with a third party, were going into business together. When asked whether or not he had been near Portola, he said that he had not. As the officer had noticed blood on appellant’s shirt, he asked him if he had any fresh cuts on his body. Appellant replied that he had a cut on his back. The officer requested appellant to remove his shirt and when he acquiesced the officer attempted to discover a cut on appellant’s back but was unable to do so.

On May 12th the appellant was interviewed by Raymond J. Stonehouse, Special Agent for the State Bureau of Criminal Identification and Investigation for the State Department of Justice. At that time appellant stated that on the day of the crime he had not been in the vicinity of Portola and had not left Reno prior to his arrest. On May 15th Mr. Stonehouse again interviewed the appellant. At that time appellant stated that he had told his attorney that he was not in the vicinity of

On May 16th appellant was again interviewed and gave the following statement to the police: He arrived in Marysville in March, 1959, and worked in Marysville for one week during the first part of April. On April 28th or 29th he met a Mr. Sprinkel at Redding. From there they went to Chico, Marysville, Grass Valley, Truckee and finally to Reno. When they stopped at Marysville appellant had taken Mr. Sprinkel’s automobile and contacted several individuals whom he knew. He claimed that he had met Lucas in Reno. Lucas had informed him that he was going to Quincy. The appellant offered Lucas a ride. As they were driving Lucas pro

The appellant did not testify in his own behalf nor did he call any witnesses to testify for the defense.

The trial court instructed the jury that “Although there are two degrees of murder, the evidence in this case is such that the defendant is innocent of the charge of murder or the defendant is guilty of murder in the first degree, as charged in the indictment. ’ ’ The court also gave an instruction on justifiable homicide in self-defense. Defendant prepared and proposed an instruction informing the jury that the offense of violation of section 187 of the Penal Code (murder) necessarily included the crime of violation of section 245 of the Penal Code, i.e., assault with a deadly weapon or assault with means likely to produce great bodily harm. This proposed instruction the court refused to give. The trial court also refused a proposed instruction informing the jury that if they found the defendant guilty of an offense included within the charge of the indictment, but entertained a reasonable doubt as to the crime of which he was guilty, it was their duty to convict him only of the lesser offense.

A defendant “may be convicted ... of a lesser offense, if he was charged with felony which included the lesser offense.” (Becker v. Superior Court, 151 Cal. 313 , 317 [ 90 P. 689 ] ; citing Ex parte Donahue, 65 Cal. 474 [ 4 P. 449 ].) “Section 1159 of the Penal Code provides that the ‘jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense’; and this section has been construed to mean that ‘to be “necessarily included” in the offense charged, the lesser offense must not only be part of the greater in fact, but it must be embraced within the legal definition of the greater as a part thereof. ’ ” (People v. McGrath, 94 Cal.App. 520 , 522 [ 271 P. 549 ] ; citing People v. Kerrick, 144 Cal. 46 [ 77 P. 711 ].) Manslaughter is clearly recognized in California to be an offense necessarily included in murder. (People v. Huntington, 138 Cal. 261 , 264 [ 70 P. 284 ]; People v. McFarlane, 138 Cal. 481 [ 71 P. 568 , 72 P. 48 , 61 L.R.A. 245 ]; People v. Shimonaka, 16 Cal.App. 117 [ 116 P. 327 ]; People v. Borrego, 7 Cal.App. 613 [ 95 P. 381 ].) Therefore, under the indictment in the instant ease, which merely charges murder as defined under the statute, the defendant might have been

As pointed out in People v. Carmen, 36 Cal.2d 768 [ 228 P.2d 281 ], instructions must be responsive to the issues as determined by the evidence. In that ease the defendant specifically submitted an instruction on manslaughter which was refused by the trial court. At page 773 the court cites from People v. Burns, 88 Cal.App.2d 867 , 871 [ 200 P.2d 134 ] : “ ‘It is elementary that the court should instruct the jury upon every material question upon which there is any evidence deserving of any consideration whatever. [Citing cases.] The fact that the evidence may not be of a character to inspire belief does not authorize the refusal of an instruction based thereon. [Citing eases.] That is a question within the exclusive province of the jury. However incredible the testimony of a defendant may be he is entitled to an instruction based upon the hypothesis that it is entirely true. [Citing eases.] It is the duty of the court to instruct the jury in regard to any included offense which the evidence tends to prove. [Citing cases.] In People v. Carroll, supra [ 20 Cal.App. 41 ( 128 P. 4 )], the court said (p. 45) : “It is undoubtedly the rule that, where there is any evidence from which a reasonable inference may be drawn that the crime of which the defendant was convicted was of a lesser degree ... it is prejudicial error to withdraw from the jury the consideration of such evidence and confine the instructions to the crime [charged].” ' ” (In the Carroll ease the question was whether an instruction on petit larceny should be given, where the crime charged was grand larceny.) In the Carmen ease the court continued: “It has been repeatedly held that it is reversible error to refuse a manslaughter instruction in a case where murder is charged, and the evidence would warrant a conviction of manslaughter. [Citing cases.] ”

It might be said that the present case is distinguishable from the Carmen ease in that here the defendant made no specific request for an instruction upon manslaughter but only generally requested an instruction as to lesser included offenses. This might be treated as the equivalent of no request at all, but if such is the case, the rule enunciated in People v. Wade, 53 Cal.2d 322 [ 1 Cal.Rptr. 683 , 348 P.2d 116 ] ; People v. Manzo, 9 Cal.2d 594 , 598-599 [ 72 P.2d 119 ]; People v. Best, 13 Cal.App.2d 606 , 610-611 [ 57 P.2d 168 ] ; People v. Warren, 16 Cal.2d 103 , 117 [ 104 P.2d 1024 ] ; and People v. Scofield,

Applying the above rules to the evidence in the instant case, we are of the opinion that defendant’s request for instructions upon the lesser included offenses was sufficient to bring this case within the rule announced in People v. Carmen, supra, and as a consequence the trial court committed prejudicial error by failing to instruct upon manslaughter. Taking the defendant’s statements as true the jury could have found that the defendant acted under the influence of fear which was not reasonably justified by the circumstances. This result is inferable from defendant’s statement that he kicked the deceased, who was momentarily stunned, and then ran to the barn where he found the hatchet. A jury might well find that defendant was acting in mortal fear, but that under the circumstances he, being a younger man, and the deceased in a stunned condition, ivas not acting in a reasonably founded belief of imminent peril to life or great bodily harm. As said in People v. Best, 13 Cal.App.2d 606 , 610 [ 57 P.2d 168 ] : “. . . If the circumstances are both adequate to raise and sufficient to justify a belief in the necessity to take life in order to save oneself from such a danger, where the belief exists and is acted upon, the homicide is excusable upon the theory of self-defense [citing cases] ; while, if the act is committed under the influence of an uncontrollable fear of death or great bodily harm, caused by the circumstances, but without the presence of all the ingredients necessary to excuse the act on the ground of self-defense, the killing is manslaughter.” Under the Carmen case, supra, it is

Assuming that defendant’s request was not sufficient under the Carmen rule, the result here should be the same under the rule announced in People v. Wade, supra. In this case the issue of manslaughter arose and was “closely connected” to the evidence introduced concerning defendant’s statements as to what occurred at the scene of the crime. That evidence, if believed, suggests the possibility of a verdict of manslaughter, and it is believed that this hypothesis is not so abstruse as to require a request for the instruction to have been made by the defendant. It is immaterial that a defendant’s main defense is based on the theory of self-defense. Under Penal Code, section 1127, the trial court must state to the jury all matters of law necessary for their information. (People v. Wright, 167 Cal. 1 , 4 [ 138 P. 349 ].)

The above holding is in no way contrary to the decision in People v. Mitchell, 14 Cal.2d 237 , 242 [ 93 P.2d 121 ], where the court stated that it was not prejudicial to refuse an instruction on manslaughter. In that case, under instructions calling for a verdict of first degree murder or an acquittal, the jury found murder in the first degree, calling for the death penalty and not life imprisonment. Also, it should be noted that in that case the court found defendant’s evidence supporting manslaughter “beyond belief.” In People v. Mott, 211 Cal. 744 [ 297 P. 23 ], no evidence was offered to support a finding of manslaughter, and refusal of a proposed instruction was held to be proper.

Under the evidence before the trial court in this case there could be doubt whether or not the defendant’s acts were the proximate cause of the death of Lucas. There was evidence that the deceased had had two prior heart attacks and that the immediate cause of death was coronary thrombosis. Although Doctor Salvadorini was of the opinion that the injuries sustained contributed to the death of Lucas, he also stated that it was not medically improbable that a man in Lucas’s condition could die spontaneously. On this basis appellant requested an instruction on assault with a deadly weapon and assault with means likely to cause great bodily harm. Appellant contends that the refusal of the trial court to give the instruction was error.

As a general rule “A person cannot be convicted of an offense (other than a necessarily included offense) not charged against him by indictment or information, whether or

In the case of People v. Carmen, supra, the rule is not modified as laid down above. In the recent case of People v. Gallagher, 168 Cal.App.2d 417 , 427 [ 336 P.2d 256 ], it is pointed out that the rule in People v. Carmen, supra, “only applies to necessarily included offenses, where the accused could be guilty of the charged offense, or of the included offense, but not of both. It does not apply to situations where the two offenses involved are separate and distinct. ...”

Appellant’s counsel at the trial, and in the presence of the appellant, stipulated that the transcript of the testimony of Doctor Salvadorini, which they had taken apart in correcting, could be given to the jurors and taken into the jury room for their examination during their deliberations rather than having it read to them by the court reporter.

Appellant contends, notwithstanding the stipulation, that it was error to permit the jury to take into the jury room the transcript of the doctor’s testimony. There is no merit in this contention. The consent of counsel for appellant made in appellant’s presence that the transcript could be given to the jury and taken by it into the jury room during their deliberations was a waiver of all objections, and we see no error or

Even if it could be said that it was error to allow this transcript to be taken into the jury room, that would not mean that a reversal is mandatory. Prejudice is not presumed because the jury took certain matters into the jury room with them. Rather, prejudice must be affirmatively established by the appellant. (People v. Horowitz, 70 Cal.App.2d 675 , 704 [ 161 P.2d 833 ]; People v. Horiuchi, 114 Cal.App. 415 , 437 [ 300 P. 457 ]; People v. Walker, 150 Cal.App.2d 594 , 603 [ 310 P.2d 110 ].) Here there is no affirmative showing that the taking of the transcript of Doctor Salvadorini’s testimony into the jury room was prejudicial. In fact, the record is quite to the contrary since one of the defenses relied upon by the appellant was that the death of Lucas was not the result of the injuries he received, but the result of a coronary thrombosis, and in support of this contention he relied heavily upon Doctor Salvadorini’s statement that it was not medically improbable that death occurred spontaneously without the contribution of the injuries.

Appellant next contends that the hypothetical questions asked each of the three doctors called by the prosecution contain the opinions and conclusions of the other two doctors. Such is not the fact. The matters of which the appellant complains here were not conclusions or opinions of the other doctors, but a statement of their findings. While the opinion of an expert cannot be predicated upon that of another, it is proper for an expert to express his own opinion based on facts testified to by another expert, or on tests made by other experts. (Christiansen v. Hollings, 44 Cal.App.2d 332 [ 112 P.2d 723 ]; Hope v. Arrowhead & Puritas Waters, Inc., 174 Cal.App.2d 222 , 230 [ 334 P.2d 428 ].)

Lastly, appellant contends that error resulted from the admission of evidence which had been obtained as the result of an illegal search and seizure. The items complained of were the personal property of Lucas which were found in the appellant’s possession at the time of his arrest. Those articles were admitted in evidence over the objection that they were the product of an unreasonable search and seizure.

The record shows that Officer Thompson and Officer Hatzi, police officers in Reno, Nevada, while in their radio-equipped squad car received a dispatch notifying them of a robbery which had occurred outside Por tola, California, together with a description of the suspect and the automobile he was driving.

The officers’ observation of a Plymouth station wagon of the same color and year model as that being driven by the suspected robber, their observation that the driver’s appearance and clothing matched the description of the suspected robber, and the fact that the car came from the direction of the scene of the robbery afforded reasonable grounds for stopping appellant’s car and questioning him. These circumstances, along with their observation of what appeared to be blood stains on appellant’s hands and clothing, afforded reasonable and probable cause to arrest and search the appellant. (People v. Borbon, 146 Cal.App.2d 315 , 319 [ 303 P.2d 560 ]; and cases cited.)

No other points require discussion.

The judgment and the order denying a new trial are reversed.

Van Dyke, P. J., and Sehottky, J., concurred.

Respondent’s petition for a hearing by the Supreme Court was denied January 18, 1961.