People v. Gibson

Defendant was charged with the murder of his wife. In a trial by jury, under his plea of not guilty, he was convicted of murder in the first degree, and the punishment was fixed at life imprisonment. In the trial before the same jury, under his plea of not guilty by reason of insanity, the verdict was that he was sane. He appeals from the “conviction” and from the order denying his motion for a new trial.

Appellant admits that he killed his wife by cutting her throat with a butcher’s boning knife. He contends that the trial court erred as follows: (1) In sustaining objections to his proffered testimony to the effect that before and at the time of the homicide certain matters regarding the character and conduct of his wife were preying on his mind. (2) In sustaining an objection to his offer of proof, by way of a hypothetical question to be asked a psychiatrist, that if such matters were preying on his mind he might then commit homicide without being conscious thereof. (3) In refusing to instruct the jury regarding manslaughter. (4) In denying appellant’s motion that the trial be continued so that counsel of his choice might represent him.

Mrs. Margaret Gibson, aged 49 years, the wife of appellant, worked as a housekeeper for a Mrs. Heilman in Beverly Hills about four months, and she lived in an apartment which adjoins the back of the garage at the rear of the premises. About 4 feet back of the rear side (north side) of the apartment there is a 6-foot-high brick wall which extends easterly and westerly along the rear of the premises. Beyond the wall there is an alley. At a place in the wall approximately opposite the middle of the rear side of the apartment there is a wood door or gate. A person entering the apartment from the alley would go through the gate in the brick wall, then turn right (west) and go along the rear of the apartment about 9 feet to the northwest corner of the apartment, then turn left (south) and go about 7 feet to the apartment door on the west side of the building. There is a cement walk, about 4 feet wide, extending from the gate to the apartment door. A tree, about 2 feet in diameter, adjoins the outer edge of the 4-foot

Appellant, aged 49 years, also lived in that apartment for a while, but he had not been living there for a period of four or five weeks preceding the time when the homicide was committed. About three weeks before the homicide Mrs. Gibson had met a Mr. Pricker, aged 78 years, at a dance. In the evening of January 10, 1948, Mrs. Gibson went to a dance with Mr. Pricker. That was the only time they had gone out together. They left the dance about 11:30 p.m. and went in an automobile to a place about one-half block from Mrs. Gibson’s apartment, which place was near the entrance to the alley which extended along the brick wall. About midnight they left the automobile there and walked in the alley to the gate in the brick wall. Mrs. Gibson opened the gate and went into the yard. Mr. Pricker remained outside and started to hand to Mrs. Gibson her extra pair of shoes which he had carried as they walked from the automobile. He also tried to kiss Mrs. Gibson, and when he put his head through the gate opening something went over his head, touched his hair, and barely scratched his head. Then he dropped the shoes in the alley and ran about 30 feet. Then as he walked back toward the gate he heard a man inside the wall cursing and saying: “You are a liar. You told me a damn lie. You are no good. You made me believe I [you] was not here any more and then you are still here.” “You don’t make me believe I [you] don’t work here any more.” He then heard a woman shout, “Help.” Then suddenly it was quiet, he did not hear anything more, and he left.

Shortly after midnight Mrs. Heilman heard a pounding noise, and upon investigating she found Mrs. Gibson lying on the back porch, bleeding profusely, and with a “horrible gash” in her throat. Mrs. Heilman dragged her inside the door and called the police.

The cut in decedent’s throat was 4% inches in length, passed through the thyroid cartilage (“Adam’s apple”), and severed the deep blood vessels. There was also a cut, about 2 inches in length, on the upper part of her left arm. There was also a cut, about 1% inches in length, on her right forearm.

Appellant, a butcher, lived at 1734 South Mansfield Avenue, Los Angeles, during the six weeks preceding January 10, 1948. He testified that he saw his wife on January 1, 1948,

A bartender at a place near the Pacific Electric station in Beverly Hills, testified that appellant, who was an occasional patron there, came to the bar very late at night January 10, 1948, remained there about two minutes, and had one drink of whiskey; that appellant said, “You won’t be seeing me around any more”; that the witness asked why he would not be around any more, and he replied that “You will hear; you will be hearing pretty soon. ’ ’

A taxicab driver testified that appellant entered his taxicab at 12:25 a.m. on January 11, 1948, at the taxicab stand near the Pacific Electric station in Beverly Hills and gave him an address on South Mansfield Avenue as the place where he wanted to go; that after the driver had taken him to that address the appellant said that the driver “would remember that trip for a long time”; that the driver asked him what he meant by that statement and “He told me I would know later. ’ ’

Mr. Pavlock, who roomed at the same house on South Mansfield Avenue where appellant roomed, testified that he had worked as a butcher in the same shop with appellant; that about 1:10 a.m. on January 11, 1948, the appellant rapped at the side door of the house and asked him to open the door and stated that he had forgotten his key; that he (witness) opened the door and let appellant in, and before appellant entered his room he asked if the witness would do him a favor “tomorrow” and stated, “I am going to write a letter and I want you to mail it for me”; that the witness agreed to mail it; that within a few minutes thereafter he heard appellant talking on the telephone which was in the hall; that he heard appellant say: “I am sorry, Champ. You have been a swell fellow, a nice man to work for. Will you please send my money to ... an address in Kentucky”; that he heard him saying at that time that he had done something to Margaret; that the witness surmised that something was wrong, and after having talked to his wife and the landlady, he went into appellant’s room and asked him what had happened that night and whether there was anything the witness could do to help him; that appellant said, “Oh, everything is all right”; that the witness said, “Come on. Tell me what happened,” and that

The letter just referred to is as follows: “Lona & Kiddies Please Forgive & forget me this had to come—no one knows how I have suffered, it is the gas chamber for me but better that than living as I have been. Best wishes to all. Howard.” The letter, which was in an airmail envelope and had airmail postage on it, was addressed as follows: “Lona B. Gibson 139 Ashland Dr. Latonia Ky.”

Mrs. Pavlock testified that a short time after Mr. Pavlock had let the appellant in the house the appellant came to their room and handed a letter to her and asked that her husband mail it the next morning.

Champ Beese testified that appellant worked for him in one of his meat markets; that on January 11, 1948, about 1:15 a. m. appellant telephoned him and said, “I think you had better get another man to open up your market Monday morning”; that Mr. Beese said, “Well, what is the matter, Howard; what is your trouble?”; that appellant said, “Well,

The taxicab driver, who took appellant to the Pacific Electric station in Beverly Hills, testified that he saw appellant at the Mansfield Avenue address about 10:40 p. m. on January 10th; that when he (driver) arrived at the Mansfield address appellant was waiting in the yard; that he (driver) did not blow the taxicab horn.

Officer Beattie arrived at the scene of the homicide about 12:35 a. m. on January 11th and at that time the deceased was being taken from the back porch of Mrs. Heilman’s house to the ambulance. When he arrived there the door of Mrs. Gibson’s apartment was open, there were many blood stains on the walk at the entrance to the apartment, on the apartment door, and in the front room and bathroom. There was a large pool of blood on the floor of the stall shower and there were many blood stains on the wall of the shower. The wash basin and lavatory were covered with blood stains. A coat and a pair of glasses were on a chair, and there were several slashes in the coat and there were blood stains on the glasses. There were blood stains on the rear steps and rear door of Mrs. Heilman’s house. Mrs. Gibson’s shoes were in the alley just outside the rear gate.

Officers Beattie and Alcorn arrived at appellant’s room on Mansfield Avenue about 1:45 a. m. Officer Alcorn testified that when they entered appellant’s room he (appellant) said, “I know why you are here”; that in response to questions by the officers as to why he thought they were there, appellant replied, “Because I killed my wife”; that in response to their question as to what he used to kill her, he replied, “A knife”; that in response to a question as to where the knife was, he pointed to a table; that the officer took a “sharp six-inch knife” from the table, showed it to the appellant, and asked him if it was the knife with which he slashed his wife; that appellant replied that it was the knife; that he asked appellant how he had used the knife upon his wife,

While appellant was in jail (the following Monday) he wrote a letter to his son James Gibson, 139 Ashland Drive, Latonia, Kentucky, and handed it to the jailer for mailing. That letter is as follows:

“Monday. A M.

Dear Jim:

I am addressing this to you, but it is for the entire family.

I am in one terrible predicament, one that has but one ending. I am somewhat ashamed, and forgive me for the shame and suffering this will cause, try to find solace in God, as that is what I am going to have to do.

I can’t exactly explain how it all happened, but I killed Margaret, Sat. night or Sunday morning, went insane I suppose.

My attorney a Mr Westermore will keep in touch with you, and send my personal belomngs to you.

There is nothing any of you can do but pray for me, please don’t come as that would only hurt all of us.

Love to all

Dad.

“you can keep in touch with me through my attorney”

Officer Alcorn testified further that immediately after taking appellant to the police station they took him to the police chief’s office and there the officers had a conversation with appellant regarding the homicide, and that his statements were free and voluntary. Officer Alcorn testified that in said conversation the appellant made statements, in addition to those included in appellant’s testimony, as follows: That appellant said that about 10 p. m. on January 10th, with the thought still on his mind that his wife had lied to him about her place of residence, he went to a dresser drawer and removed from it a knife which was wrapped in butcher paper and a magazine; that he placed the knife in his overcoat pocket, left the room, called for and met a cab in front of his house; that he went to a large tree which was about 10 feet from the

After that conversation, about 2 a. m., Officers Alcorn, Beattie, White and Chief Anderson, took the appellant to the scene of the homicide. Officer Alcorn testified that appellant showed them the tree by which he stood, the gate through which his wife came, where she was when he first slashed her, the route she took into the house, into the bathroom, into the shower room, and where he slashed her throat. He testified further that the pointing out of those places by appellant corresponded with the conversation they had had with him, and that appellant indicated to them that he had stood behind and on both sides of the tree. He testified further that on January 14th he and Officer White found, in the alley and directly over the wall from the tree, some meat paper and a meat market magazine which were wrapped in a “sharp V-shape” and with “sticky tape” at the bottom and a rubber band at the top; that they showed the paper to appellant and he said that it was the paper in which he had wrapped the knife before placing it in his overcoat pocket. On cross-

Appellant contends, as above stated, that the court erred in sustaining objections to testimony offered by him to the effect that before and at the time of the homicide certain things were preying on his mind. In response to a question by his attorney he testified that something was preying on his mind prior to the incident involved here. He testified that due to his wife’s past conduct he was worrying a great deal because on various occasions she had been unfaithful to him. His attorney asked him if one of the things that was preying on his mind was the fact that his wife had deceived him as to the number of times she had been married. An objection to the question on the ground that it was leading was sustained. His attorney then asked if one of the things that was preying on his mind was the fact that his wife had sold a house and absconded with the proceeds of the sale. An objection to the question on the ground that it was leading was sustained. After extended discussion by the judge and attorneys regarding the admissibility of such evidence, assuming that it could be elicited other than by leading questions, the judge indicated that such evidence was not admissible. Then appellant’s attorney offered to prove that at the time of the homicide various things were preying on appellant’s mind, which things were as follows: that shortly after their marriage he learned that his wife had been a prostitute; that she had absconded with his funds and left him penniless in Louisiana, just prior to the time they were to occupy a new house purchased by him; that she taunted him upon frequent occasions regarding sexual relations she had had with other men; that he had loved her and had always forgiven her transgressions ; that he had made her the recipient of many gifts and she was ungrateful and unfaithful; that she had deceived him as to the number of times she had been married and had stated that she had been married twice whereas in fact she had been married seven times; that about midnight on January 10th he observed her in the arms of another man. Then appellant offered to present testimony of a psychiatrist, by way óf a hypothetical question based upon the assumption that if said

In the case of People v. Danielly, 33 Cal.2d 362 [ 202 P.2d 18 ], the defendant was convicted of murder in the first degree. He was not living with his wife. About 12:30 a.m. on October 13th he shot and killed his wife as she sat in an automobile in front of her home. Just prior to the homicide, his wife and another woman and two men went from her home to the automobile. As they approached the automobile, the defendant left his automobile, which was parked across the street from his wife’s house, and went, with a pistol in his hand, to the other automobile where he killed his wife. The defendant’s alleged defense was that he was at his home in bed from 6 p.m. on October 12th until the police awakened him about 1:30 a.m. on October 13th, and that he had no memory of, and never was conscious of, anything during some six to eight hours immediately preceding the arrival of the police at his home. In that case the defendant sought to show by lay and expert testimony that he was “highly unstable, highly emotional,” and suffered from “nervous disability.” Objections to that testimony were sustained by the trial court, and those rulings were upheld on appeal. The court therein said, at page 378: “There is a complete absence of evidence of any objective situation, occurring at or near the time in question, which would furnish any cause, reasonable or otherwise, for defendant, devoid of malice, to react in a ‘highly emotional, highly unstable’ manner and on that account leave his bed, take a loaded gun and go to his wife’s residence.” The court also said therein (p. 369) : “It is to be noted that the fine detailing of events . . . beginning when the police ‘came barging in’ to his [defendant’s] room ... is the testimony of the defendant who, it is now urged, has absolutely no

As above noted, appellant herein testified in fine detail as to happenings immediately preceding the alleged “bursting of light.” It appears from all the evidence herein, and particularly from the circumstances hereinabove specially referred to which refute appellant’s theory of unconsciousness, that the issue in the present case as to appellant’s state of mind was not a close one, and that the exclusion of the psychiatrist’s opinion testimony was not prejudicial. (See, People v. Wells, supra, 33 Cal.2d 330 , 357.) In the present case, as stated in the case just cited at page 358, it does not appear that there is “any reason for the jury’s having been in doubt or difficulty in resolving against defendant the question of his state of mind.”

“An act committed by a person while in a state of voluntary intoxication is nonetheless criminal by reason of his having been in such condition.” (People v. Anderson, 87 Cal.App.2d 857 , 860 [ 197 P.2d 839 ].)

Appellant’s further contention that the court erred in not giving an instruction regarding manslaughter is not sustained. He testified that the “bursting of light” was the last knowledge he had until he was in a taxicab on his way home. If he committed the act charged while he was unconscious he was not guilty of manslaughter or any crime. (Pen. Code, § 26, subd. 5; People v. Danielly, 33 Cal.2d 362 , 376 [ 202 P.2d 18 ].) The court, at appellant’s request, gave three instructions to the effect that if appellant was not conscious of his acts at the time he killed his wife the jury should find him not guilty. The jury did not believe his testimony to the effect that he was unconscious. It found either that the killing of his wife was the result of his willful, deliberate and premeditated intent to kill her, and that the killing was accomplished by his lying in wait, or it found that the killing was the result of his willful, deliberate and premeditated intent to kill her, without finding as to lying in wait. In either event it was murder in the first degree. When the killing is perpetrated by lying in wait it is murder in the first degree. (People v. Tuthill, 31 Cal.2d 92 , 99-101 [ 187 P.2d 16 ].) Even if appellant fell asleep while he was lying in wait, that fact did not exclude lying in wait as a “means” through which he accomplished the killing. (People v, Tuthill, supra, p. 101.) The preparation for carrying the long sharp knife, the carry

Appellant also contends that the court erred in denying his motion for a continuance. The information was filed on January 29, 1948. On February 2, 1948, appellant appeared, with his counsel Mr. Morris Lavine, for arraignment, and upon appellant’s request the matter was continued to February 13, 1948. On February 13th, the matter of arraignment was continued to February 20th, and then it was continued to February 26th. On February 26th, appellant entered his pleas and the trial was set for April 27, 1948. On April 27th, Mr. Sailer, an attorney, appeared in court with appellant and stated that Mr. Lavine, counsel for appellant, was engaged in another trial, and he asked for a continuance in the case to May 18th. The trial judge said if the case is to be continued “it will have to be Monday, June 7th.” The case was then continued to June 7, 1948. On said last mentioned day, at

At said time on June 8th, Mr. Rubin filed affidavits of himself, the appellant, and Mr. Prankenberger, in support of a motion for a continuance. Mr. Rubin’s affidavit stated that he was admitted to the bar in June, 1947; that he had tried two misdemeanor cases and two civil cases but he had not tried a felony case; that by reason of his inexperience he was not ready to try the case; that he requested a continuance to enable Mr. Lavine to be present, and that he objected to being substituted in the place of counsel of defendant’s choice. Appellant’s affidavit stated that he had employed Mr. Lavine as his counsel; that the court had appointed Mr. Rubin, over appellant’s objection, to act as attorney for appellant. Mr. Prankenberger’s affidavit stated that since May 17, 1948, Mr. Lavine had been continuously engaged in the trial of a felony case in Department 37 of the Superior Court. The trial judge read the affidavits, and denied the motion, and told Mr. Rubin that if he was not in a position to proceed that morning with the examination of jurors the matter would be continued until 2 p.m. The judge also told appellant that appellant had

At said last mentioned time Mr. Rubin asked that his appointment as counsel be terminated. The judge denied the motion, and stated that the trial would proceed at that time, and that if the appellant desired to examine the jurors himself he might do so. The judge also appointed Mr. Colvin for the purpose of consulting with appellant and advising him of his rights. Appellant stated that he had no faith in counsel appointed by the court, and that he did not care to examine the jurors himself. Mr. Colvin stated that he had no knowledge of the circumstances of the matter and that he did not think he was qualified to examine the jurors but he would be glad to assist the appellant. Then the appellant said: “If I am to go to trial with the attorneys, the court attorneys present here, might I at least have the Court’s consent or permission to let Mr. Rubin act as my counsel f He has at least appeared in court once with me before and I believe would know a little something of the proceedings.” Then the court said, “You prefer Mr. Rubin acting alone?” The appellant said, “That is entirely up to the discretion of the court.” Then the court, upon the request of Mr. Colvin and the appellant, excused Mr. Colvin as counsel. A jury was then impaneled and sworn to try the issues in the case. Mr. Rubin then objected to the proceedings in the case on the ground that the appellant was being deprived of his constitutional rights. Appellant then stated that Mr. Rubin was not the attorney of his choice, “as provided for under the Fourteenth Amendment of the Constitution of the United States,” that Mr. Rubin was not qualified and he did not have confidence in him; that he reposed his confidence in Mr. Lavine; that he accepted Mr. Rubin only under the force of the court’s order. Then an adjournment was taken until the next day, June 9th, at 1:30 p.m.

The case was set for trial on April 27th, which was two months after appellant had entered his pleas. On April 27th, when it was represented to the court that appellant’s counsel Mr. Lavine was then engaged in another trial, and when a motion for a continuance was made, appellant was granted a continuance of approximately six weeks, that is, to June 7th. On June 7th, when another motion for a continuance was made on the same ground, namely, that Mr. Lavine was engaged in another trial, it was represented that the arguments in the other trial were then being presented to the jury and that the case was almost concluded. It was also said at that time that about a week later Mr. Lavine would have to start a trial in the federal court which would require about two months. The trial judge denied the motion for a continuance, but he did continue the matter until the next day, June 7th, at 1:30 p. m., when the examination of prospective jurors was commenced. After the jury had been selected in the afternoon of June 8th, he continued the matter until the next afternoon, June 9th. In other words, after it was stated on June 7th at 10 a. m. that the arguments were then being made in the other case which Mr. Lavine was trying and that the case was almost finished, the trial judge herein continued the case one and one-half days before starting the selection of the jury, and two and one-half days before starting the testimony. It does not appear why the continuances, from session to session of the court, were made, but it might well be that the trial judge anticipated that, during those continuances, the arguments in the other case might be finished, which arguments allegedly were about finished on June 7th when the motion for a continuance was made. In any event, the effect of such continuances was to afford Mr. Lavine an opportunity (2% days) to finish the other case and to appear in the present case.

In the case of People v. Dorman, 28 Cal.2d 846 [ 172 P.2d

The record in the present ease, which includes the arguments to the jury, shows that Mr. Rubin, as counsel for appellant, performed his full duty intelligently and well; that his representation of appellant was not a mere formality, but was an able, earnest, and thorough representation throughout the trial. His arguments to the trial judge and the jury, his cross-examination of witnesses, and his objections to questions and procedure establish that he was well informed concerning the law and the facts in the case, and that he was alert and immediately ready to meet and to present the legal and factual questions involved. The reporter’s transcript consists of 447 pages and this opinion should not be extended by referring to and quoting the portions thereof which illustrate that appellant’s counsel represented him in the manner above stated. In the case of People v. McNabb, 3 Cal.2d 441 , the court said at page 448 [ 45 P.2d 334 ] : “In short, the voluminous record is a formidable answer to any claim that counsel was not fully prepared for trial.” In the case of People v. Ives, 17 Cal.2d 459 [ 110 P.2d 408 ], wherein the defendants had been convicted of murder in the first degree and wherein one of the appellants had been represented by an attorney appointed by the court, it was contended that his attorney, who had been admitted to the bar one year, was incompetent to properly represent that appellant. The court therein said at page 477: “The reason advanced [referring to admission to the bar] is hardly pertinent in gauging the competency of an attorney to conduct a murder trial. He might have had twenty years of experience in the trial of civil cases and yet be grossly incompetent to defend one upon a charge of murder. One may be specially adapted to try criminal cases, irrespective of the length of time he has been practicing . . .. The best criterion of the competency, care and alertness of the attorney referred to is the record in the ease.” In the present case it does not appear that a more seasoned attorney could have done more in representing appellant than was done by appellant’s counsel. The appellant admitted orally and in his letters that he killed his wife. He was permitted to give his testimony in narrative form, and he was not cross-examined. On appellant’s motion for a new trial the trial judge considered his assertion that the court had erred in denying the motion for a continuance, and in compelling him to go to trial with Mr. Rubin as his attorney. The denial of the motion for a new trial indicates that the trial

The judgment and the order denying the motion for a new trial are affirmed.

Shinn, P. J., and Vallée, J., concurred.

A petition for a rehearing was denied June 6, 1949, and appellant’s petition for a hearing by the Supreme Court was denied June 23, 1949. Carter, J., voted for a hearing.