People v. Forbs ( 1965 )

TOBRINER J.

Defendant was charged by information with the crime of murder; the jury found her guilty of voluntary manslaughter. The court sentenced her to the penitentiary for the term required by law.

For the reasons stated below we hold that defendant’s conviction must be reversed because the police obtained incriminating statements from her at the accusatory stage without advising her of her rights to counsel and to remain silent, although the record fails to show that she otherwise waived those rights. We point out that the introduction of such statements worked prejudicial error. We further explain that although the evidence could not sustain a verdict of voluntary manslaughter in the absence of a showing of defendant’s intention to kill, the issue of whether such erroneous verdict caused prejudice to defendant need not be resolved in view of our reversal. Finally, we do not accept defendant’s contention that the trial court failed to give adequate instructions on the law of excusable homicide.

The victim was defendant’s son, a child 2% years old. The boy died on November 1, 1962. Defendant and her husband had separated subsequent to the boy’s birth; defendant, after some dispute, gained custody of the child. On the date of death and immediately before that time she resided with her five children in a housing project in Los Angeles.

During the several weeks immediately preceding his death, the child suffered approximately 30 injuries or groups of injuries to various parts of his head and body. On the morning of November 2, 1962, a police officer, in response to a radio call, went to defendant’s residence and asked about the child. Defendant identified herself to the officer and directed him to the upstairs bedroom where he found the deceased child lying on a bed. Defendant told the officer that the child had been ill; that she did not think that the illness required a doctor, but that suddenly the previous evening the child had died. Upon the officer’s request for an explanation of the injuries to the child, defendant replied that when the boy had been outside to play the neighborhood children had inflicted the bruises.

The officer took defendant to the police station; she was then questioned. She was placed in jail and on November 5th and 6th again interrogated. At the latter inquiry, which was recorded, defendant stated that, on or about October 24th, after she had taken her children, including the deceased child, out of a ldtehen cabinet in which they were climbing, she left the kitchen. The victim followed her. She then suddenly turned around and struck the boy in the face or on the head with her right hand. The blow knocked him backward a few feet, causing his head to strike a table top. Due to the blow, he fell to the floor unconscious. After he had lain there for two or three minutes, defendant picked him up and put him on the couch. The child was still breathing. She then telephoned her mother and told her that she had hit the child and that he was hurt. Defendant indicated to the police that she had not called a doctor because she feared that he might report her. During the next few days the boy’s physical condition began to deteriorate visibly; on November 1, 1962, he died. Defendant also stated that the whippings she had previously administered to the child had caused the scars.

The police first brought defendant before a magistrate after she gave her statement on November 6th. One of the officers present testified that so far as he lmew defendant did not talk to an attorney at any time prior to or during the interrogations and that he did not recall having informed defendant of her right to counsel before the interrogation.

The failure of the police at the accusatory stage to advise an accused of his rights to counsel and to remain silent, in the absence of any evidence that he otherwise waived those rights, renders the admission of his incriminating statements erroneous. (People v. Dorado (1965) ante, p. 338 [42 Cal.Rptr. 169, 398 P.2d 361]; People v. Stewart (1965) ante, p. 571 [43 Cal.Rptr. 201, 400 P.2d 97] ; Russo v. New Jersey (1965) - F.2d -; Clifton v. United States (1965) 341 F.2d 649; Galarza Cruz v. Delgado (1964) 233 F.Supp. 944; State v. Dufour (1965) - R.I. - [206 A.2d 82, 85]; State v. Neely (1965) - Ore. —— [398 P.2d 482] ; see Escobedo v. Illinois (1964) 378 U.S. 478 [84 S.Ct. 1758, 12 L.Ed.2d 977].)

The accusatory stage, or that stage when one has a right to counsel, accrues “... when the officers have arrested the suspect and the officers have undertaken a process of interrogations that lends itself to eliciting incriminating statements. ...” (People v. Stewart (1965) ante, pp. 571, 577 [43 Cal.Rptr. 201, 400 P.2d 97].) Since a defendant has a right to counsel at that stage, we have held that he must be informed of that right or otherwise knowingly and intelligently waive it. (People v. Dorado, supra, ante, p. 338.)

When defendant made her incriminating statement on November 6 the accusatory stage had long since been reached. At that time she had been under arrest for four days without having been brought before a magistrate. (See Pen. Code, § 825.) The police had interrogated her several times while she was under detention. The police continually had urged her to discuss the events surrounding the death of the child. Under these circumstances, we do not doubt that at the time defendant gave the incriminating statements she was being subjected to a process of interrogations that lent itself to eliciting incriminating statements. (People v. Stewart, supra, ante, p. 571.) Since she had not been advised of her rights to counsel and to remain silent and since she did not otherwise waive those rights, the admission of her incriminating statements constituted error. (People v. Dorado, supra, ante, p. 338.)

Defendant requested an instruction, a portion of which stated that a confession does not become involuntary by the facts that at the time of its rendition defendant was under arrest, that she did not have an attorney and that she was not told that any statement could be used against her. Defendant’s request for such an instruction does not induce the conclusion that here the erroneous admission of defendant ’s statement constituted invited error. Our decisions do not hold that the failure to advise a person of his rights during the accusatory stage renders a statement involuntary; we have said that under Escobedo the failure to give such advice in a situation such as the instant one renders the statement inadmissible, whether or not it was voluntary. Moreover, defendant's failure to object on the ground that the admission of the statements violated her rights established by Escobedo and Dorado does not constitute a waiver of those rights since the present trial occurred prior to the decision in those eases. (People v. Hillery (1965) ante, pp. 692, 711 [44 Cal.Rptr. 30, 401 P.2d 382].)

Even if defendant’s incriminating statements do not constitute a confession that requires automatic reversal upon admission into evidence, such statements were so damaging to defendant that we cannot say that they caused only harmles error under article VI, section 4% of the California Constitution. These statements were the only direct evidence as to the eireumstanoes surrounding the death of the victim. Certainly her admission that she had beaten the child on other occasions, and on the occasion in question, would weigh heavily with the jury. The contention that medical reports of injuries to the child and defendant’s apparent dislike of the child constitute “overwhelming” evidence of defendant’s guilt obviously cannot stand. Accordingly, the admission of the statements gravely prejudiced defendant and therefore compels reversal. (See People v. Watson (1956) 46 Cal.2d 818, 836-837 [299 P.2d 243].)

In view of our holding that this erroneous admission of defendant’s incriminating statements requires reversal, we need not discuss defendant’s contention that the statements were involuntarily given and that the corpus delicti of the felonious homicide was not proven before the admission of the statements. Likewise, we do not discuss the prosecutor’s comment on defendant’s failure to testify at the trial since we reverse on other grounds. (See Griffin v. California (1965) 380 U.S. 609 [85 S.Ct. 1229, 14 L.Ed.2d 106].)

We turn to defendant's contention that the evidence did not support the verdict of voluntary manslaughter since the prosecution did not introduce any evidence that she intended to kill the child.

Penal Code section 192 defines voluntary manslaughter as “the unlawful killing of a human being, without malice ... upon a sudden quarrel or heat of passion.” It “is a wilful act, characterized by the presence of an intent to kill engendered by sufficient provocation and by the absence of premeditation, deliberation and (by presumption of law) malice aforethought.” (People v. Bridgehouse (1956) 47 Cal.2d 406, 413 [303 P.2d 1018] ; see People v. Miller (1931) 114 Cal.App. 293, 300 [299 P. 742].)

The prosecution here introduced evidence bearing on the issues of second degree murder and involuntary manslaughter but did not attempt to prove that defendant intended to kill her child. Thus, the evidence did not sustain a verdict of voluntary manslaughter.

The Attorney General contends that defendant did not suffer prejudice by a conviction of voluntary manslaughter because the punishment is the same for voluntary manslaughter and involuntary manslaughter (see People v. Jackson (1962) 202 Cal.App.2d 179, 182 [20 Cal.Rptr. 592]) and because voluntary manslaughter is a lesser offense than second degree murder, the crime with which defendant was charged. (See People v. Powell (1949) 34 Cal.2d 196, 205-208 [208 P.2d 974].)

Since we reverse on other grounds, however, we do not probe the issue of whether the erroneous verdict of voluntary-manslaughter would be of such prejudice to defendant as to require reversal.

Finally, we find no merit in defendant’s contention that the trial court’s failure to give full and adequate instructions on the law of excusable homicide constituted reversible error.

The defendant requested, and the trial court gave, the following instruction: “The killing of a human being is excusable and not unlawful... when committed by accident and misfortune in doing any lawful act by lawful means and without any unlawful intent and where the person causing the death acted with that care and caution which would be exercised by the ordinarily careful and prudent individual under like circumstances.. .. Excusable homicide is distinguished from felonious homicide in that to be excusable the killing of the human being must have been by both accident and misfortune. Even though the death was accidental and may not have been intended and was not anticipated, the homicide will not be excused if it was caused by an unlawful act, or by the doing of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.” (CALJIC No. 320 (old form).)

This instruction is based on section 195 of the Penal Code, which reads as follows: “Homicide is excusable in the following cases: 1. When committed by accident and misfortune, in lawfully correcting a child or servant, or in doing any other lawful act by lawful means, with usual and ordinary caution, and without any unlawful intent. 2. When committed by accident and misfortune, in the heat of passion, upon any sudden and sufficient provocation, or upon a sudden combat, when no undue advantage is taken, nor any dangerous weapon used, and when the killing is not done in a cruel or unusual manner.”

Defendant argues that since she relied solely on the defense that death resulted accidentally from the lawful correction of her son, the trial judge should have given an instruction based on that part of section 195 which excuses a homicide committed in the lawful correction of a child.

The instruction, however, explained that the “killing of a human being is excusable and not unlawful... when committed ... in doing any lawful act by lawful means and without any unlawful intent____” Such broad language sufficiently encompasses the act of lawful correction of a child. That a more specific instruction could have been given does not constitute error if the defendant does not request such an instruction and, in fact, as here, asks for the more general instruction. (See People v. Reed (1952) 38 Cal.2d 423, 430 [240 P.2d 590]; People v. Meichtry (1951) 37 Cal.2d 385, 389-390 [231 P.2d 847]; People v. Byrnes (1866) 30 Cal. 206; People v. Shepherd (1963) 223 Cal.App.2d 166, 172-173 [35 Cal.Rptr. 497].)

The conviction cannot stand in view of the erroneous and prejudicial admission of defendant’s incriminating statements.

The judgment is reversed.

Traynor, C. J., Peters, J., Peek, J., and Dooling, J.,^* concurred.

* Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.