People v. Dorman

SHENK, J.

The defendants William Neal Dorman and Merlin James Smith were indicted for the murder of Ralph William Bigelow in Los Angeles County on April 17, 1944; also of robbing Bigelow of money, a watch and an automobile, and of kidnapping Bigelow for the purpose of robbery. The defendants were convicted by a jury on all counts, the punishment for the murder, found to be first degree, being fixed at life imprisonment, and for the kidnapping,' imprisonment for life without possibility of parole. The defendant Smith alone has appealed from the judgment and the order denying his motion for a new trial.

At the time of the events hereinafter related Smith was a sergeant in the United States Army. He was 19 years old and weighed about 165 pounds. Dorman was a sailor in the United States Navy, 24 years old, and weighed about 130 pounds. Bigelow, the deceased, was a mechanic, 41 years old, 5 feet 6 inches in height, and weighed 135 pounds.

Dorman and Smith met in a cafe called the “Brite Spot” on April 15, 1944. The next day, Sunday, Smith met Bigelow in the same cafe. Bigelow bought the drinks and they stayed until midnight. They were unsuccessful in obtaining food in a restaurant across the street because of some difficulty Smith had had with a waitress the previous night. So they drove to the home of Hutson, Bigelow’s employer, where they had something to eat and spent the remainder of the night. Next morning about 9:30 Hutson took them in an automobile to Bigelow’s home where Smith met Bigelow’s family. At that time Bigelow had about $70 in his possession. About an hour later Smith and Bigelow went to the “Brite Spot” where a Mr. McKee met them. Dorman came in at noon and joined the group which sat drinking in a booth. Dorman and Smith repaired to the rest room. In a discussion while there, according to Smith’s statement to police officers, Dorman suggested that they “roll” Bigelow, but Smith remonstrated, saying that Bigelow was a “good guy” and was buying the drinks. Between 3 and 4 o’clock in the afternoon McKee took them in an automobile to Bigelow’s car. Smith, Bigelow and Dorman got into the front seat of Bigelow’s car with Smith at the wheel. McKee watched them until they drove away. They stopped in a park where they got out of the car and one or the other or both of the defendants struck Bigelow. Dorman and Bigelow returned to the rear seat of the car. At 6 o’clock they were seen driving at a high rate of speed, with the sailor beating the civilian. They parked for about 3 minutes in an alley where Smith leaned over the front seat and struck at Bigelow, whose head and face were blood-smeared. Bystanders shouted that they would call the police, whereupon Smith drove off at high speed, cutting across a vacant lot. They went some distance, stopped, and one or the other of the defendants (each said it was the other) used a rock about twice the size of a man’s fist and dealt Bigelow the final and fatal blows. They demonstrated to police officers the size of the rock. When he was asked by officers why he did not stop Dorman, Smith replied: “Well, I told him I didn’t think he needed to hit him so many times.” They took Bigelow’s watch and money, about $30, and rolled his body over an embankment. They drove away in Bigelow’s automobile as far as Tehachapi, where they abandoned it and proceeded north. Smith pawned Bigelow’s watch in Stockton. Both defendants were arrested in Sacramento. Human blood was found in the rear seat of Bigelow’s ear, and on Smith’s garrison cap. Buttons missing from Smith’s shirt were also found in the ear. Bigelow’s body was discovered on April 23d in an advanced state of decomposition. The immediate cause of death was determined to be subdural hemorrhage due to basal fracture of the skull. In addition there were lacerations and contusions around the eyes, nose and lips, and other places on the front and sides of the head.

The indictment was presented on May 5, 1944, and arraignment set for May 9th. On that day the court appointed the public defender as counsel for Smith. After entry of the plea of not guilty, the trial was set for June 16th. On Wednesday, June 14th, Smith appeared in court with appointed counsel and attorney James 0. Warner, when a motion was made to substitute Warner as his attorney. The judge asked Mr. Warner whether he was prepared to go ahead on Friday the 16th. He replied that he didn’t know, that there were still some witnesses he wished to interview, and that the defendant Smith had been in a position to employ private counsel only within the last two days. The judge stated that he would not permit a substitution of counsel if it meant a continuance and that the defendant had competent counsel of his choice with ample time for preparation. Codefendant’s counsel, also in the court room with her client, reported that she was prepared to try the case, was ready to go to trial, but would ask for a little more time if it would “assist counsel.” After a conference with the defendant and his counsel, Mr. Warner stated that he was willing to accept the responsibility of going on with the trial on Friday. The judge denied the motion for substitution, but permitted Mr. Warner to appear as counsel associated with appointed counsel, saying to the latter that he was still in the case for the purpose of rendering assistance, that his duty was to remain with the defendant and not abandon him unless he was represented by counsel prepared to go to trial.

On Friday, June 16th, the case was called, a motion for continuance was denied, but because of the congested condition of the calendar the trial was postponed until Monday, June 19th. When the case was called on the 19th the public defender asked to be relieved and his requested was granted. Mr. Warner thereupon asked for a week’s continuance, which was denied on the ground that the case had been pending for a sufficient time to permit reasonable preparation and that no unusual circumstances appeared which required a continuance. The trial proceeded and occupied eight days in the introduction of evidence and two days in argument.

The first ground of the appeal is that the trial court violated the appellant’s constitutional rights by refusing the requested continuance.

Section 1050 of the Penal Code reflects the legislative policy in the trial of criminal cases. It is there provided that the court shall set all criminal eases for trial for a date not later than 30 days after the date of entry of the plea, that no continuance of the trial shall be granted except upon affirmative proof in open court that the ends of justice require it, and for no longer than is affirmatively proved that the ends of justice require. That section discloses a policy which the law generally enjoins upon the courts, namely, an orderly and expeditious administration of justice. The first question then, in substance, is whether the trial court abused its discretion in determining that there was no affirmative showing that the ends of justice required a continuance, that is to say, in determining that there was in this case no showing that the time for preparation of the defense was inadequate.

A similar question was involved in Avery v. Alabama, 308 U.S. 444 [60 S.Ct. 321, 84 L.Ed. 377], The sole question there presented was whether, in violation of the Fourteenth Amendment, the petitioner was denied the right of counsel, with the accustomed incidents of consultation and opportunity of preparation for trial, where, after appointment of competent counsel, the trial court denied a continuance. The Supreme Court observed that the disposition of a request for continuance was a matter for the exercise of the court’s discretion and not ordinarily reviewable. However, it was pointed out, the denial of any representation at all would constitute a clear violation of the Fourteenth Amendment; and denial of opportunity by appointed counsel to confer, to consult with the accused, and to prepare his defense, could convert the appointment into a sham and nothing more than a formal compliance with the Constitution’s requirement that an accused be given the assistance of counsel, and would not satisfy the Constitution’s guarantee. (Cf. Powell v. Alabama, 287 U.S. 45 [53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R 527].) In the Avery case the petitioner was convicted of murder and the death penalty was imposed. He had been arraigned on March 21, 1938, when the court appointed two practicing attorneys to represent him. His trial was set for March 23 d. It was not reached then but was called the next day when the attorneys moved for a continuance on the ground that, being busy with other trials, they had not had time to prepare the defense. Apparently the motion was denied for the trial proceeded, and a motion for new trial, made on the ground that denial of a continuance deprived the defendant of equal protection of the laws, was denied. In concluding that the petitioner had not been deprived of the benefit of counsel guaranteed by the Fourteenth Amendment, the court examined the record and found that appointed counsel “performed their ‘full duty intelligently and well’ . . . Their appointment and the representation rendered under it were not mere formalities.” At page 452 it was said: "That the examination and preparation of the case, in the time permitted by the trial judge, had been adequate for counsel to exhaust its every angle is illuminated by the absence of any indication, on the motion and hearing for new trial, that they could have done more had additional time been granted.” The distinguishing features of the Powell and Avery cases were noted in Betts v. Brady, 316 U.S. 455, 463-464 [62 S.Ct. 1252, 86 L.Ed. 1595].

In People v. Whinnery, 55 Cal.App.2d 794 [131 P.2d 33], on appeal from a judgment of conviction of robbery committed in Los Angeles County, it was contended that the defendant was denied a fair trial by the refusal to grant a continuance and a substitution of counsel. The defendant appeared with counsel at his arraignment, a plea of not guilty was entered, and the trial was set for a date one month later. Ten days before the trial date the defendant, in court personally, was informed by the judge that his counsel was in the county jail, that his trial would go on at the time set, and that he should be prepared to go to trial either with his then counsel or another. On the trial date he appeared with his attorney and sought to substitute other counsel, which the trial judge said he would permit only if counsel sought to be substituted, who had been engaged seven days previously, was prepared to proceed. The court permitted new counsel to be associated with original counsel and continued the trial four days, but at the latter time the defendant again moved to substitute associate counsel and to obtain a continuance. When the request was refused the defendant chose to withdraw his plea of not guilty and substitute a plea of guilty, which he did only after full admonition by the court as to the meaning and consequences of his act. Considering the zealous regard for the defendant’s rights and the coordinate right of the People to the orderly processes of administration and effective execution of the laws, the District Court of Appeal concluded that the record showed no abuse of discretion in the trial judge’s refusal to grant a substitution and continuance. Any observation that the guilty had been brought to justice was properly rejected as a controlling factor, since the question of prejudice is not necessarily cognizable when the result is due to arbitrary action of the trial judge; furthermore that the mere fact that the record shows the defendant’s guilt is not determinative on the matter of miscarriage of justice. (People v. Mahoney, 201 Cal. 618, 627 [258 P. 607]; People v. Cowan, 44 Cal.App.2d 155, 159 [112 P.2d 62].) The same trial judge denied the requests for substitution and continuance in the present case under somewhat similar circumstances. Here the trial did not commence until at least the seventh day after employment of private counsel, and appointed counsel, who had the preparation of the ease for more than a month, remained to render assistance until the trial started. The conduct of the defense was full and fair. The fact that 33 witnesses testified for the People and only three in addition to the defendants appeared in support of the defense does not necessarily show lack of time for preparation. Considering the rights of the state as well as of the defendant, the time allowed for preparation was not unreasonable. The record discloses that the defendant was ably and energetically represented by counsel of his choice. Representation was not a mere formality, but was representation in fact. None of the defendant’s substantial rights was denied him by the action of the trial judge in refusing to grant a further continuance when the case was finally called for trial. (See, also, People v. McNabb, 3 Cal.2d 441 [45 P.2d 334]; People v. White, 137 Cal.App. 467 [30 P.2d 555]; cf. People v. Simpson, 31 Cal.App.2d 267 [88 P.2d 175].)

It is contended that there is no evidence from which the jury could find that the defendants had an intention to or that they did kidnap the deceased. The applicable language is found in section 209 of the Penal Code which reads: “Every person who seizes, confines, inveigles, entices, decoys, abducts, conceals, kidnaps or carries away any individual by any means whatsoever with intent to hold or detain, or who holds or detains, such individual for ransom, reward or to commit extortion or robbery ... dr who aids or abets any such act, is guilty of a felony and upon conviction thereof shall suffer death or shall be punished by imprisonment in the State prison for life without possibility of parole, at the discretion of the jury trying the same, in cases in which the person or persons subjected to such kidnapping suffers or suffer bodily harm. ...” It is urged that the relations existing between the defendant and Bigelow were friendly, that the suggestion by Dorman that they rob the deceased was rejected by Smith, and that such evidence does not support a plan to kidnap for the purpose of robbery. The all sufficient answer is contained in the italicized words in the quoted language of the statute, and in the undisputed acts of transporting Bigelow to an isolated spot, and of killing and robbing him. Those acts support the jury’s finding without any further evidence of specific intent.

The court did not err in refusing to give a requested instruction on manslaughter. Manslaughter is not involved in a case where the death of the victim ensues in the perpetration of robbery (Pen. Code, § 189), or in the act of kidnapping for the purpose of robbery (Pen. Code, § 209). Such an instruction is unnecessary and improper in a case such as this where there is no evidence tending to prove that the crime was or might have been manslaughter. (People v. Manzo, 9 Cal.2d 594, 599 [72 P.2d 119] ; People v. Johnson, 219 Cal. 72, 77 [25 P.2d 408]; People v. Farrington, 213 Cal. 459, 465 [2 P.2d 814]; People v. Rogers, 163 Cal. 476, 482 [126 P. 143].) The defendant stresses the fact that they (Dorman and Smith) had been drinking intoxicating beverages. The evidence does not disclose that they did not know what they were doing. Bach made statements to the officers describing and indicating an awareness of the events, although Smith later purported to explain that he was merely repeating what Dorman had told him. Voluntary intoxication is not an excuse for crime. (People v. Diaz, 26 Cal.2d 318 [158 P.2d 194], People v. Cavazos, 25 Cal.2d 198 [153 P.2d 177]; People v. Fellows, 122 Cal. 233, 239 [54 P. 830].)

It is also contended that the trial court erred prejudicially in refusing an instruction to the effect that the jury could disregard any of the confessions of the defendant which was not freely and voluntarily made or which was obtained from the defendant while he was irrational of mind. It is not asserted that any inducement or promise was offered to the defendant or that he was subjected to any threat or violence. He relies mainly on testimony that he was under the influence of intoxicating liquor. That condition, if it existed, did not deprive the confessions of the required spontaneity to make them free and voluntary. (People v. Farrington, 140 Cal. 656, 661 [74 P. 288]; People v. Ramirez, 56 Cal. 533, 535-536 [38 Am.Rep. 73]; People v. Aguilar, 140 Cal.App. 87, 94 [35 P.2d 137, 142]; People v. Sameniego, 118 Cal.App. 165, 176 [4 P.2d 809, 5 P.2d 653].) His claimed intoxication when he was arrested in Sacramento was insufficient to invalidate his confession. Similar statements were later made by him in Los Angeles, and it is not asserted that at the latter time he was intoxicated. All of the testimony bearing on the voluntary nature of the confessions was heard by the jury. This defendant does not dispute the fact that he was told by the officers that the charge was serious, that the evidence against him was such that he might be convicted of first degree murder, that he would be permitted to call an attorney, and that in the absence of an attorney he could refuse to answer any question. Both in Sacramento and in Los Angeles he was advised of his constitutional rights, and that any statement made by him would be used against him in court. He expressed his willingness to make a statement of his part in the crime. There is no evidence of any hope or promise held out to him or of any pressure exerted upon him which could reasonably be considered a valid ground for disregarding his confessions as involuntary, or for believing that his willingness to talk was in any degree the result of the conduct of the officers. Where, as here, no rational conclusion can be drawn other than that the confessions were free and voluntary, there is no necessity for an instruction on the subject, and the refusal to give the requested instruction was not error. (People v. Hubbell, 54 Cal.App.2d 49, 75, 76 [128 P.2d 579] ; People v. Chan Chaun, 41 Cal.App.2d 586, 592 [107 P.2d 455].)

The defendant’s final contention is that the court erred in defining the degrees of murder. In defining them the court gave the instructions which were criticized and condemned in recent cases in this court, the last of which is People v. Bernard (May 17, 1946), ante, p. 207 [169 P.2d 636], where it was said at page 214 that when the facts impel a conviction of murder of the first degree “there is no occasion whatsoever to give instructions as to the difference between the degrees of murder.” So it must be said that where, as here, the facts upon any view of the evidence do not admit of a finding other than of murder of the first degree the giving of the challenged instructions was erroneous. But on the" whole record the error was not prejudicial. The facts, as found by the jury, would have justified the imposition of the death penalty. (Pen. Code, §§ 189, 190, 209.) In the exercise of its discretion the jury would seem to have extended to the appellant all the leniency which the law permitted.

The judgment and the order are affirmed.

Gibson, C. J., Traynor, J., Schauer, J., and Spence, J., concurred.