People v. Mitchell , 14 Cal. 2d 237 ( 1939 )

CURTIS, J.

This appeal is from the judgment and order of the trial court denying defendant’s motion for a new trial.

The defendant, Willie B. Mitchell, met Fannie Nolden some time in 1936 at a night club in the city of Sacramento. Later they met again in the early part of the following year. Thereafter they met frequently and soon began living together as man and wife although they were never married. They both belonged to the colored race. He was less than seventeen years of age and she was twenty-five. In the summer of 1937 they moved to Oakland and took up their residence at Ninth and Center Streets in that city. Their life together was not at all times harmonious, and according to the testimony of the defendant, Fannie Nolden “ran off” on a number of occasions. Some few days prior to November 21, 1937, Fannie Nolden left the home at Ninth and Center Streets, and went to the home of Mr. and Mrs. Upshaw at 1115 Center Street, two blocks from Ninth and Center Streets. Mr. and Mrs. Upshaw were the uncle and aunt respectively of the defendant. On November 21, 1937, the defendant called two or three times at the home of his uncle and aunt, and at least on one of his earlier visits during that day he saw Fannie Nolden, but nothing of any moment took place between them at that time. He returned to the Upshaw home about 7 o’clock of the same day with an acquaintance by the name of Leonard Franklin. It was just getting dark. He had two pistols on his person, and Leonard Franklin had one. On entering the Upshaw home on that evening, he met and talked with his uncle and aunt in their living or “front” room. He then asked his aunt if he could have some food. She replied, “Sure, go down in the kitchen, help yourself.” He and Franklin then went to the kitchen. When they entered they found Fannie Nolden and Dorothy Robinson, the latter a young lady cousin of the defendant. Fannie Nolden was washing dishes and Dorothy Robinson was seated at a table eating a meal. When defendant first entered the kitchen, he asked Fannie Nolden to fix him something to eat. Fannie replied, “I don’t have anything to fix. This ain’t my house.” Defendant then said, “You ain’t going to fix it?” He then reached down in his waist under his coat, and pulled out two “guns”. Fannie then said, “Oh, yes, I fix it. Yes, I fix it,” and ran across the room near the water tank. The defendant then stepped around and started shooting, and Fannie fell to her knees, and the defendant stepped out a few feet further and started shooting again. Immediately after the shooting, the defendant put both pistols in his left hand and opened the back door and left the room. According to his own story, he left Oakland and went to San Francisco. From there he went to Los Angeles and eventually reached his old home in Arkansas. He remained in Arkansas for some months. Later he went to St. Louis, where he was arrested, charged with the crime of murder, and brought back to Oakland. The body of Fannie Nolden was examined by Dr. Mainwaring at 7:50 o’clock on the evening of her death. He found one bullet lying loose in her undergarments over the chest. An autopsy was performed on the body of the deceased on the following day by Dr. Hamlin. He testified that he found six bullet wounds on her body, but he discovered no marks other than the bullet wounds on her body. One bullet entered the tip of the left shoulder and passed out under the left shoulder. Another bullet entered the inner angle of the armpit, and passed into the chest cavity at the third rib, passed through the left lung, through the left ventricle of the heart, through the right lung, and lodged four inches below the armpit. This bullet was recovered. The courses of other bullet wounds were described by the doctor, six in number. Two bullets were removed from the body during the autopsy. The wounds found upon the body of the deceased were pronounced fatal by the doctor and were the cause of her death. Besides the two bullets recovered from the body and the one found in the clothing of the deceased, a fourth was found embedded in the woodwork of the kitchen, just back of where the deceased fell when she was shot. No one seemed to know just how many shots were fired. Dorothy Robinson, who was the only eye-witness to the shooting, said she was unable to tell the number of shots that were fired by the defendant. Leonard Franklin who entered the kitchen with the defendant was not called as a witness. He was not seen after the shooting by any witness who testified in the case, and neither the prosecution nor the defendant had been able to locate him before the trial. The defendant testified that he did know the number of shots that were fired. He never denied the shooting. He admitted his guilt to the arresting officers in St. Louis, and at that time made a written statement giving his version of the shooting. He also took the stand as a witness at his trial and admitted that he shot the deceased. His version of the shooting does not entirely agree with that given by Dorothy Robinson, and will be discussed later. No claim is made by the appellant that the evidence is insufficient to support the verdict of the jury finding him guilty of the crime of murder as charged in the information. The only ground assigned by him for a reversal of the judgment is that the court erred in refusing to give an instruction on manslaughter. He predicates his right to such an instruction upon his testimony given at the trial of the the case. He testified that when he entered the kitchen .of the Upshaw house on the evening of the shooting, he said to Fannie Nolden: “Hello, Toots,” and touched her on the back and said, “How about fixing me something to eat?”; that she looked at him and said, “I don’t have nothing to eat here, I can’t fix you anything;” that she then walked to the sink, and he went to the door and called, “Auntie, can I have some food?”; that he turned and came back while Fannie Nolden was still at the sink and said, “What’s wrong?”, and she replied, “I don't have time to talk to you”; that he then said, “How about some of my money then?”, and she replied, “I ain’t got time to fool with you. I am busy,” and that he then said, “Leaving all jokes aside, Fannie, let me have some of my money; ’ ’ that at that time she was in front of the cupboard and wheeled around with a knife in her hand and said, “I’ll give it to you. I’ll fix you!” that he then jumped back to the door and said, “Don’t come over here,” but she kept coming. ‘ ‘ I could not get out the door. I come up and knocked the automatic safety off, just went off like that., and it stopped. When the automatic stopped shooting, Fannie laid one hand on the stove and looked at me and gritted her teeth, and I was trying to get the door open from the back with this hand, back with this hand. When I went to move around the automatic went off one more time. ’ ’

Appellant prepared an instruction defining manslaughter in the language of section 192 of the Penal Code with the added statement, “If you are satisfied beyond and to the exclusion of a reasonable doubt that the defendant unlawfully killed Fannie Nolden without malice and upon a sudden quarrel, or in the heat of passion, your verdict should be guilty of manslaughter.” This proposed instruction the court refused to give. We think it was properly refused. Nothing in appellant’s testimony indicated in the slightest extent that appellant killed the deceased either upon a sudden quarrel or in the heat of passion. At most his testimony tended to show that he drew his automatic pistol in self-defense, by an inadvertence he knocked off the safety appliance, and the gun was accidentally discharged. This evidence was properly before the jury for the purpose of their determination as to whether the defendant killed deceased in self-defense, or whether her death was due to accidental means. This evidence in no way tended to prove that the homicide was committed upon a sudden quarrel or heat of passion. There was no error, therefore, in the trial court’s refusal to give the proffered instruction. In support of his claim that the refusal to give this instruction was error and that it was prejudicial of his legal rights, the appellant argues that had such an instruction been given the jury under all the evidence might have found him guilty of manslaughter instead of murder. We find no force whatever in this argument. The jury was correctly and properly instructed respecting the decrees of murder, and of its power to fix the punishment in case it found the defendant guilty of murder in the first degree. With these instructions before it, the jury found the appellant guilty of murder in the first degree without recommending life imprisonment. If under the evidence and these instructions, the jury rendered a verdict calling for the death penalty, it is not reasonable to suppose that its verdict would have been different had the proposed instruction on manslaughter been given.

It might be appropriate to add a few words regarding the claim of the appellant that he was attacked by the deceased, with a knife. Dorothy Robinson, who, as we have stated, was the only eye-witness to the tragedy, flatly contradicted the appellant in his statement that the deceased attacked him with a knife. She was asked the direct question as to whether Fannie had anything in her hand at the time appellant shot her, and she replied, “No. She did not.” No knife was found near the body or in any place on the kitchen floor after her death although a careful search of the room was made by the officers on their arrival on the scene. Appellant stated to the officers in St. Louis that she attacked him with a butcher knife, and it was so described in his written statement made to said officers at the time of his arrest. At his trial, the appellant testified that he did not pay any attention to the knife and could not tell what kind of a knife it was and repudiated his statement made to the officers at St. Louis that it was a butcher knife.

There is also considerable doubt whether the gun with which he shot deceased was an automatic pistol. His statement made at St. Louis contains the following account of the shooting, “I pulled out a 38 caliber Smith & Weston blue steel revolver which I had concealed in my waistband of my shirt and trousers and shot in the direction of Fannie.”

Appellant gave as a reason for being armed with two pistols when he left his room and went to the Upshaw home on the day of the tragedy that he had been attacked on two previous occasions and severely injured before leaving Sacramento and that he saw his assailant on the streets of Oakland on the morning of the day he killed the deceased. He further stated that he was going to a dance that evening, but gave no sufficient reason for arming himself on that occasion except that he might meet the man who had assaulted him in Sacramento. Whatever may have been his motive in arming himself, there is no credible evidence from which an inference might be drawn that he had any intention of violently assaulting, and much less intention of killing, the deceased before he entered the Upshaw home on that evening. Nevertheless, the evidence is clear and convincing that he deliberately shot the deceased in cold blood. It is beyond human belief that his automatic pistol could have been accidentally discharged from four to six times and that each shot took effect in the body of the deceased. This is especially true of the last shot that was fired when, he says, he was attempting to leave the room through the rear door of the house, which would place him with his back towards the deceased. In stating that all shots fired by the appellant took effect in the body of the deceased, we have not overlooked a bullet which was found embedded in the woodwork of the room. Prom all the evidence in the case, it is apparent that this bullet passed entirely through the deceased’s body, and then embedded itself in the woodwork just back of where the deceased was standing when she was shot.

We find no error in the record, and are of the opinion that the evidence is amply sufficient to support the verdict of the jury.

The judgment and order denying the motion for a new trial are, and each of them is affirmed.

Edmonds, J., Shenk, J., and Thompson, J., pro tern., concurred.