People v. Jones

Defendant was charged with assault with intent to commit murder (§217, Pen. Code) and murder (§187, Pen. Code). A jury found him guilty of assaulting Jerry Spry by force likely to produce great bodily injury, a felony, a lesser but necessarily included offense than tha,t charged in count I, and not guilty of the murder of Henry

Jerry Spry testified that around 7:30 p.m. on November 24, 1966 (Thanksgiving Day), he, Howard Lee and Larry Spells were walking down the street toward a liquor store at 42d and Ascot to get sodas; an automobile came up beside them and defendant got out of the car; he had never seen defendant before; defendant ran up to a porch of a house, returned and, with reference to the three of them, said, “Look at those three punks;” he told him he was not a punk, then continued walking toward the liquor store with the defendant behind him; Lorenzo Marshall was standing in front of the liquor store and he (Spry) started to converse with him when defendant grabbed him by the collar; defendant said nothing when he grabbed him but a scuffle ensued in which he (Spry) hit defendant and defendant stabbed him in the stomach; he was unaware he had been stabbed until Marshall said, ‘ ‘ Someone is bleeding ’ ’; after he was stabbed he hit defendant with both fists; defendant stumbled a bit, ran to the corner and crossed the street; he saw no knife in defendant’s possession; he (Spry) went home with a rag at the place of bleeding; Lee and Spells walked him home; he first went to the Central Receiving Hospital and then was taken by ambulance to General Hospital where he stayed for four days; the doctors took seven or eight stitches in his stomach.

Lee and Spells did not see a knife in anyone’s hand; George Yiltz saw defendant display a knife on occasions prior to and on November 25, 1966; and Jimmie Smith had seen a knife on defendant two or three times prior to November 25, 1966.

Lorenzo Marshall, called by the defense, testified that he saw Spry, Lee and Spells come out of the liquor store; Spry struck defendant first; and he saw no knife in defendant’s hand. Defendant testified that he was confronted by Spry on 41st Place between Compton and Dorsey on November 24, 1966; Spry said of him, “Where is this punk going”; he tried to push Spry away from him outside the liquor store when Spry hit him first; Spry asked him if he wanted to fight and he replied no; he did not stab Spry and did not have a knife in his hand; he sustained injuries to his nose and lip as the result of Spry’s blows.

Appellant assails the testimony of the prosecution witness, Jerry Spry, as inherently improbable and urges error in the denial of his motion to strike Spry’s testimony as

It is true that Spry was confused in several areas and that some conflict exists in his version of the events, but read in its entirety, Spry’s testimony is basically clear and credible—he "simply said that defendant called him a name, followed him

The rule is stated in People v. Huston, 21 Cal.2d 690 at page 693 [ 134 P.2d 758 ] : “Although an appellate court will not uphold a judgment or verdict based upon evidence inherently improbable, testimony which merely discloses unusual circumstances does not come within that category. (Kidroski v. Anderson [1940] 39 Cal.App.2d 602 , 605 [ 103 P.2d 1000 ].) To warrant the rejection of the statements given by a witness who has been believed by a trial court, there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions. [Citations.] Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. (Hicks v. Ocean Shore Railroad, Inc., 18 Cal.2d 773 , 781 [ 117 P.2d 850 ].)” (People v. Lyons, 47 Cal.2d 311 , 319-320 [ 303 P.2d 329 ] ; People v. Jenkins, 231 Cal.App.2d 928 , 931 [ 42 Cal.Rptr. 373 ].) Whatever conflicts or inconsistencies exist in Spry’s testimony were for the jury to consider in determining Spry’s credibility and the weight to be given his testimony, but they are not such as to render Spry’s testimony inherently improbable. The statements given by Spry are neither false on their face nor therein does there exist a physical impossibility that they are true. The main issue of fact upon which the testimony of the parties conflicts is whether defendant stabbed Spry and who started the fight. If Spry was not telling the truth the only possible alternative hypothesis is that while he and defendant were scuffling (a fact undisputed) someone else stabbed Spry in the stomach; under the uncontroverted circumstances this appears to be highly unlikely. There is nothing physically impossible or inherently improbable in the theory based on Spry’s testimony and adopted by the jury that defendant, a bully, called Spry, who is a “mental defective,” a name, taunted him. followed him to the liquor store and grabbed him by the collar starting a scuffle in which he stabbed Spry. Unlike the testimony of the prosecutrix in a kidnapping charge in People v. Carvalho, 112 Cal.App.2d 482 [ 246 P.2d 950 ], cited by appellant, there is nothing “fantastic” or “more than unusual” or that does “violence to reason” about Spry’s testimony. (P. 489.)

Appellant’s last claim that there was misconduct on the part of the trial judge predicated on the unfounded claim “of unjustifiable criticism of defendant’s counsel,” his expression of opinion that certain witnesses were not to be believed, his discussion with counsel concerning an appeal “being taken,” and his unnecessary interruption of the interrogation of the witnesses and assumption of the role of prosecutor in participating therein, is without merit.

The record shows that at the start of the trial defense counsel was late because of matters he had to attend to in another court; the criticism was leveled at a fellow judge for the manner in which he presided in his courtroom. However unfortunate the judge’s criticism of his colleague, it reasonably could not be construed as directed to defense counsel. Appellant’s further assertion that the judge criticized his counsel for not properly representing him is simply not true. On the redirect-examination of Spry the judge faulted counsel for failing to object when Spry “doesn’t make clear what he is talking about” because “we are not getting an adequate record.” It was defense counsel who first brought up the subject of representation by saying in response, “I feel that he [defendant] is getting an adequate defense”; the judge replied that “he may be getting an adequate defense by your remaining silent, but I am not tolerating this kind of record. ’ ’ The controversy related strictly to the clarity of the record.

The trial judge did not, through his questioning of certain witnesses, intimate that they were not to be believed. Actually he seemed to be dissatisfied with the manner in which all of the witnesses, prosecution and defense alike, testified. For this there was good cause—there appears to have been a reluctance on the' part of some, apparently friends of defendant, to testify concerning who started the altercation and who stabbed Spry, and an unusual alacrity on the part of others to

Appellant does not claim that the judge’s questions of the witnesses were improper per se or implied belief in his guilt but argues that his “voluntary assistance” improperly gave weight to the People’s case. The judge’s interruptions occurred during examination of all witnesses; in every instance to which our attention has been directed, he sought to clarify their testimony or bring out additional facts. His questions of defendant’s witnesses bearing on a defense could well have been used to defendant’s advantage. “In the exercise of his broad powers to control the proceedings, the trial judge has a right and duty to expedite the trial and, if necessary in the interests of fairness and efficiency, to participate therein. (People v. Martinez, 38 Cal.2d 556 , 564 [ 241 P.2d 224 ].)” (People v. Wrigley, 69 Cal.2d 149 , 164 [ 70 Cal.Rptr. 116 , 443 P.2d 580 ].) The situation is unlike that set up in People v. Robinson, 179 Cal.App.2d 624 , 633 [ 4 Cal.Rptr. 50 ], cited by appellant.

The jury simply disbelieved the prosecution’s witnesses relative to the murder of Henry Williams and acquitted defendant thereof; it gave credence to Spry’s testimony and

The judgment is affirmed.

Wood, P. J., and Fourt, J., concurred.

A petition for a rehearing was denied January 7, 1969, and appellant’s petition for a hearing by the Supreme Court was denied February 5,1969.