People v. Thompson

Appeal from judgment rendered after non-jury trial and from order denying motion for new trial.

Appellant was convicted of voluntary manslaughter, an included offense under a charge of murder. Appellant argues that there could be no voluntary manslaughter because (1) there is no evidence of “sudden quarrel or heat of passion” (Pen. Code, § 192, subd. 1) ; (2) the evidence is insufficient to warrant any finding of guilt; and (3) the court erred prejudicially in excluding evidence tending to show suicide or commission of the crime (if one there was) by some person other than defendant, e.g., one of the victim’s visitors.

In reconstructing the events surrounding the death of the victim, Bonnie Jean Wise (commonly known as Smokey), we accept, as we must, the direct evidence and inferences favorable to respondent’s case and refrain from weighing

The victim was a prostitute who had been living with defendant for four months and a half. They had moved into Robert Richard’s house as tenants five days prior to Bonnie’s death. There she received visitors and plied her trade. She died sometime before 1:10 a. m. on May 31, 1960, from a gunshot wound inflicted between 5 p. m. and 6 p. m. on the previous evening, May 30. The bullet entered her head just over the right eyebrow, split on the skullbone with one-half remaining in the brain and the other passing out behind the right ear. She also had a small cut over the left eye and a “black eye” on the right eye. There were no powder burns on the skin or like indication that the gun had been fired at less than a distance of 12 to 18 inches. The victim was found lying on the bed on her back with a bloody towel wrapped around her head. Behind the center of the bed there was a hole in the wall 3% to 4 feet above the floor and Police Detective Sonlitner expressed the opinion that the bullet took a slightly downward path of about 10 degrees from point of origin. Dr. Kade, autopsy surgeon, said it would be difficult to conceive of a right-handed person inflicting such a wound upon herself and less conceivable for a left-handed person to do so (the victim was left-handed). Officer Wolfer, ballistics expert, gave the opinion that the bullet path indicated the gun was held more than 12 inches from the head and that in order to fire the gun from the victim’s position the fingers would have to be on the butt and the thumb on the trigger and the person firing the gun would have a great tendency to miss the head.

Appellant claimed absence from the premises at the time of the shooting. But this attempted alibi was refuted by the testimony of others, especially Richards and defendant’s brother-in-law, Brown. Defendant said that as he entered the house Bonnie called him “J.T.” twice, and he found her on the bed with the gun lying next to her; he picked it up

Richards and Hamilton arrived at the house about 5 to 5:30 p. m.; Bonnie was then “jolly and kidding”; they soon left and defendant and the victim remained alone. Then Mr. Brown arrived (he thought it about 5 :30) as defendant was coming out of the door; he told Brown his girl friend was sick and he wanted a doctor. Brown went home to get the telephone number of a doctor he knew. He soon returned with it and saw the victim on the bed with a towel over her head. Appellant told him she had tried to commit suicide. Appellant then telephoned the doctor and told him his girl friend had shot herself.

About 6 p. m. Richards returned; as appellant opened the door for him he said Bonnie had tried to commit suicide. Richards went into the bedroom and saw her with a hole in her temple; defendant said “ ‘when he came home from the store, it happened, and he didn’t know what to do about it.’ ” He also told Richards he did not know where the gun came from. Dr. Lassoff arrived about 6 :30 and saw Bonnie on her back with her fists clenched and her elbows bent so that her fists were up at her shoulders, signifying serious intracranial injury; she was in a comatose condition. Appellant told him his girl friend had shot herself and pointed out a hole in the wall where he said a bullet had pierced it.

About 7 :17 Police Officer Risher arrived and appellant said his girl friend had shot herself. The officer found the woman still breathing heavily. Asked what happened appellant said he had been away, had returned with Richards, and heard her calling him and he found her lying on the bed with the gun lying beside her and he had placed it on the record player; that he never had seen the gun and did not know who owned it. Toni Davis, Bonnie’s friend, testified that four or five days before her death defendant struck Toni with that gun during an argument at that house. Appellant also told the officer that there had been no trouble between him and the victim, no argument and he had been away from the house all afternoon.

This evidence points to no one but defendant as the killer. Counsel for defendant persistently sought to show, however, that Bonnie had committed suicide. The best he could produce

Bonnie had been a narcotic addict and a pill “fanatic,” of varying and rapidly changing moods. Defendant testified that on Saturday before the 30th (which was Monday) Bonnie had a long telephone conversation with her mother in which she began to cry and “she say, ‘Well, if anything happens to me, if I be in the hospital or anything, my old man will get in touch with you,’ so she gave me her mother’s phone number and gave our number to her mother. . . . After she hung up the phone, I said, ‘Well, why were you crying when you talked to your mother 1 ’ She said, ‘I don’t know.’ She say, ‘I get those moody feelings, I just call them, and every time I hear her, I just cry, you know. ’ ” Defendant also said that within a week before her death she had remarked that she wanted to break the narcotic habit because “she wanted to stay on with me and wanted to, you know, wanted us to make it. ’ ’ But she never mentioned suicide, and Officer Risher testified that defendant told him he knew of no reason for her to commit suicide. Defendant said he never threatened her and they had no quarrels or arguments. Richards and Hamilton were at the house only a few minutes before the shooting and Bonnie then was “jolly” and “kidding,” “jolly, laughing and talking.” They left her and defendant alone in the house. Hamilton, an acquaintance of two years’ standing, testified that she was always laughing when not drinking. The autopsy revealed an absence of alcohol or morphine or its derivatives in her body. So far as the evidence shows defendant, and he alone, was with her at the time of the shooting, if his own version be rejected as was done by the court.

The experts testified that a left-handed person would have difficulty in shooting herself in the manner that Bonnie had been shot. Officer Wolfer, ballistics expert, said that if the gun was held over 12 inches away from the head in the right hand the fingers would be behind the butt and the thumb on the trigger, causing a strong tendency to miss the head, and that everything would be back-handed to a left-handed person. In his opinion the gun was held more than 12 inches from the head and it was not likely that the wound was self-inflicted. There was no sooting or tattooing on or in the wound as there would be if the weapon were held less than 12 inches away and no evidence of gas blast which would accompany a contact wound. Dr. Kade, the autopsy surgeon, expressed this opinion: “It is difficult for me to conceive a

The trial judge specifically rejected the claim of suicide and it is manifest that an appellate court, in the face of the foregoing evidence, cannot hold the contrary on that issue.

The evidence definitely points to defendant as the murderer. His own story was rejected by the trial judge and not without ample justification. In the first place he had been convicted of second degree murder in Arizona in 1951 and had served a term in prison therefor. His testimony is impeached at the outset, but more effectually by that of other witnesses and an unerring finger pointed at him by a combination of circumstances.

His story is that he was absent from the house after 4:15 p. m. of May 30th until Richards brought him home at about 5:50 p. m. (He told the police he had been away all afternoon and reiterated that statement on cross-examination.) After they arrived at 5:50 Richards went around the corner to park his car and defendant entered the house, immediately hearing Bonnie call, “ J.T., J.T.” Going into the bedroom he saw her lying on the bed on her back with feet hanging over the left side and with a hole in her head from which blood was freely flowing. Beside her was a gun that defendant did not own and had never seen before, so he said. He called her several times and asked what happened but received no response. Using his handkerchief to protect against fingerprints he lifted the gun onto a record player which was close to the bed; explaining at the trial, “I didn’t want my hands on the gun.” Then he moved her feet onto the bed, straightened her and put a blanket over her. He got ice, alcohol and water and mopped and washed the blood from her face. He saw that Bonnie had been shot and started out the front door to get aid. His brother-in-law, Prank Brown, arrived just then and defendant told him that the girl friend was hurt and he wanted a doctor or something. Brown knew the name of one and volunteered to go home and get the telephone number. Defendant urged him to hurry. Brown returned in a half hour and defendant was at the bedside wiping blood from Bonnie. After defendant had telephoned him, Dr. Lassoff arrived but only after considerable delay. The doctor called an ambulance

The claim that there could be no conviction of voluntary manslaughter in this case, though technically correct, cannot be sustained as one requiring reversal. The charge was murder. But it is proper, where the evidence justifies, to convict of voluntary manslaughter under a charge of murder. {People v. Shimonaka, 16 Cal.App. 117 , 120-121 [ 116 P. 327 ] ; People v. Brubaker, 53 Cal.2d 37 , 44 [ 346 P.2d 8 ] ; People v. Lewis, 186 Cal.App.2d 585 , 596 [ 9 Cal.Rptr. 263 ].)

The definition of voluntary manslaughter occurs in section 192, Penal Code: “Manslaughter is the unlawful killing of a human being, without malice. It is of three kinds: 1. Voluntary—upon a sudden quarrel or heat of passion. ...” When it is shown that defendant committed a homicide the crime is murder unless the evidence affirmatively shows circumstances of mitigation which would bring the crime within the definition of manslaughter. There is no possibility of involuntary manslaughter in this ease and in order to make the offense voluntary manslaughter there must be proof of a sudden quarrel or heat of passion. {People v. Bridgehouse, 47 Cal.2d 406 , 413 [ 303 P.2d 1018 ]; People v. Brubaker, supra, 53 Cal.2d 37 , 44; People v. Borchers, 50 Cal.2d 321 , 329 [ 325 P.2d 97 ].) There is in the record at bar no evidence of any quarrel or heat of passion—nothing better than suspicion. The cut over the victim’s left eye and the black right eye, standing alone, could afford basis for conjecture as to a fight, but the black eye was so close to the bullet hole as to have no individual significance. The room showed no evidence of any struggle; everything was in its place. Defendant did not claim that there had been any difficulty between him and Bonnie. On the contrary he insisted upon an alibi, that he was absent at the time of the shooting.

The finding of voluntary manslaughter was erroneous but not prejudicially so. “ ‘When the killing is proved to have been committed by the defendant, and nothing further is shown, the presumption of law is that it was malicious and an act of murder ... in such a case the verdict should be murder of the second degree. . . .’ ” {People v. Craig, 49 Cal.2d 313 , 319 [ 316 P.2d 947 ].) See also People v. Zankich, 189 Cal.App.2d 54 , 60 [ 11 Cal.Rptr. 115 ]. That is the situation here. The evidence warrants a holding of second degree murder but not manslaughter, and appellant cannot complain of a finding more favorable to him than the law

The situation in this case parallels People v. Buono, 191 Cal.App.2d 203 [ 12 Cal.Rptr. 604 ], wherein defendants sought to try the Mafia. We there said: “A defendant may, of course, establish his innocence by proving directly or circumstantially that some other person or persons killed the