Opinion
As Amended on Denial of Rehearing April 26, 1967.
Hearing Granted and Retransferred to Court of Appeal May 24, 1967.
For Opinion on Remand, see 59 Cal.Rptr. 647.
Bruce B. Bruchler, Lakeport, for appellant.
Thomas C. Lynch, Atty. Gen., Robert R. Granucci, Horace Wheatley, Deputy Attys.Gen., San Francisco, for respondent.
TAYLOR, Associate Justice.
Defendant, geraldine Alfreds, was convicted of voluntary manslaughter for the fatal shooting of her husband. On this appeal from the judgment and from a denial of a motion for a new trial, she claims that there was insufficient evidence to support the judgment, and that the court committed prejudicial error in failing to give an involuntary manslaughter instruction on its own motion.
The order denying the motion for a new trial is not appealable and the purported appeal therefrom must be dismissed (Pen.Code, § 1237).
Defendant and Phillip Alfreds (hereafter Phil) were married in 1958 and had four children. The marriage was marked by turbulence, violence and numerous separations. The parties were separated and defendant's divorce action was pending at the time of the shooting. Several weeks before, Phil had threatened to kill defendant rather than lose her.
About 10:00 p. m. on April 13, 1965, defendant and her friend, Ted Pierce (hereafter Ted), were watching television in the living room of the Pierce residence located across the street from defendant's home in Middletown, Lake County. Phil Knocked on the Door and when Ted asked who was there, replied: 'Phil.' Defendant immediately ran through the bedroom to the bathroom of the Pierce residence. Ted opened the door and asked Phil what he wanted. Phil replied: 'I want my old lady,' and entered the house, grabbed Ted by the shirt, saying: 'I'm going to kill you, Ted.' Phil pushed Ted down onto the floor, then jumped over him and went into the bedroom. Phil and defendant frantically Ted testified that defendant ran out of the house, followed by Phil, and that defendant came along the left side of Ted, grabbed the shotgun out of his hands, saying: 'Shoot. Shoot the Son-of-a-bitch or I will.' Ted ran a few steps to the car which was parked in front of his house and seconds later heard a blast from the shotgun. When he returned, he saw Phil lying on the ground and defendant crying and saying: 'Oh, my God, I shot him.' Despite efforts to save him, Phil bled to death from the shotgun wounds.
Immediately after the shooting, defendant told a deputy sheriff that she grabbed the shotgun from Ted and pulled the trigger as Phil started toward her. While confined in the Lake County jail, defendant told another inmate, Lucille McCloud, that she shot Phil and would do it over again.
In another statement and in her testimony at the trial, defendant indicated that her earlier statement that she grabbed the shotgun from Ted was wrong and made only to exculpate Ted. Her testimony was that Ted flipped her the gun and it went off either when it hit her hand or as she caught it when Phil was bearing down very closely her. When asked if she had pulled the trigger, she indicated she might have but could not remember. She admitted several times that she saw no gun in Phil's hands as he approached her.
Defendant first contends that the court erred in failing to give an instruction on involuntary manslaughter on its own motion (CALJIC 308B). The general principles here applicable are laid down in People v. Carmen, 36 Cal.2d 768, 773, 228 P.2d 281. A defendant in a criminal case is entitled to instructions on his theory of the case as disclosed by the evidence, no matter how weak. It is elementary that the court should instruct the jury upon every material question upon which there is any evidence deserving of any consideration whatever. It is the duty of the court to instruct the jury in regard to any included offense that the evidence tends to prove. Where there is any evidence from which a reasonable inference may be drawn that the crime of which defendant was convicted was of a lesser degree, it is prejudicial error to withdraw from the jury the consideration of such evidence (People v. Miller, 57 Cal.2d 821, 829-830, 22 Cal.Rptr. 465, 372 P.2d 297).
'Manslaughter is the unlawful killing of a human being without malice.' One kind of manslaughter, the definition of which is pertinent in this case, is involuntary manslaughter, being that which is done in the commission of an unlawful act not amounting to a felony, or in the commission of a lawful act which might produce death in an unlawful manner or without due caution and circumspection (Pen. Code, § 192, subd. 2).
The evidence here would support a finding that in grabbing or catching the shotgun and pointing it in the direction of the deceased, defendant was either performing an unlawful act not amounting to a felony or a lawful act which might produce death in an unlawful manner, or without due caution or circumspection. Furthermore, the testimony of defendant's hysterical condition, that the gun went off when it hit her hand, and that she was unable to say whether she had pulled the trigger, would support a finding that the gun fired accidentally. Such findings, if made by the jury, would clearly justify a verdict of involuntary manslaughter. Thus, the court erred in failing to give an instruction on involuntary manslaughter along with its instructions on murder, voluntary manslaughter, and justifiable homicide (People v. Carmen, supra; People v. McCartney, 222 Cal.App.2d 461, 476, 35 Cal.Rptr. 256). While it is true that People v. Lewis,
We think an involuntary manslaughter instruction would be required here even in the absence of a request for an instruction on lesser included offenses. While the trial court need not instruct on specific points developed by the evidence unless requested, instructions must be given, sua sponte, in criminal cases on the 'general principles of law governing the case' (People v. Wade, 53 Cal.2d 322, 334, 1 Cal.Rptr. 683, 692, 348 P.2d 116, 125). The ends of justice can best be served by providing defendants this judicial safeguard from the possible vagaries or ineptness of counsel under the adversary system. Thus, it has been held error in murder prosecutions to fail to give an unrequested instruction on manslaughter where the facts of the case would warrant a verdict of guilt to such offense (People v. Wade, supra; People v. Manzo, 9 Cal.2d 594, 598-599, 72 P.2d 119; People v. Best, 13 Cal.App.2d 606, 610, 57 P.2d 168). The fact that the accused may claim self-defense, which implies an intentional killing, does not obviate the requirement (People v. Lewis, supra, 186 Cal.App.2d at p. 599, 9 Cal.Rptr. 263; People v. Wright, 167 Cal. 1, 4, 138 P. 349; Pen.Code, § 1127).
Furthermore, although voluntary and involuntary manslaughter carry identical penalties upon conviction (People v. Doyle, 162 Cal.App.2d 158, 328 P.2d 7), there is an important distinguishing factor. A conviction of voluntary manslaughter makes defendant ineligible for probation, except in unusual cases, as she is a person who 'used a deadly weapon upon a human being in connection with the perpetration of the crime' (Pen.Code, § 1203). Thus, we hold that the court's failure to instruct on involuntary manslaughter, sua sponte, was prejudicial and constituted reversible error.
There is no merit in defendant's contention that the evidence was insufficient to support a judgment of voluntary manslaughter. The jury was not bound to accept defendant's particular version of the facts (People v. Bell, 171 Cal.App.2d 834, 837, 341 P.2d 829) and she concedes in her closing brief that there was testimony indicating an intentional killing. We find sufficient evidence in the record to support judgments of either voluntary manslaughter, involuntary manslaughter, justifiable homicide, or even excusable homicide.
Voluntary manslaughter 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. Brubaker, 53 Cal.2d 37, 44, 346 P.2d 8). Penal Code section 192, subdivision 1, defines voluntary manslaughter as the unlawful killing of a human being, without malice, 'upon a sudden quarrel or heat of passion.'
Penal Code section 195, subdivision 1.
Defendant's reliance on People v. Mercer, 210 Cal.App.2d 153, 26 Cal.Rptr. 502, and People v. Collins, 189 Cal.App.2d 575, 11 Cal.Rptr. 504, is inappropriate. In those cases, the prosecution's own testimony established justifiable homicide as a matter of law. Such was not the situation here. There was testimony that defendant did not see any gun in the deceased's hands as he approached her and that she was standing by her friend Ted, who was armed with a shotgun. It was for the jury to determine, under all the circumstances, whether defendant was justifiably apprehensive of great bodily injury or death at People v. Furber,
People v. McAuliffe,The judgment is reversed and the purported appeal from the order denying the motion for a new trial is dismissed.
AGEE, Acting P. J., and BRAY, J. , concur.
Retired Presiding Justice of the Court of Appeal sitting under assignment by the Chairman of the Judicial Council.
The following evidence of an intentional killing would clearly justify the voluntary manslaughter conviction: defendant's statements to Ted 'Shoot the son-of-a-bitch or I will' and 'oh, my God, I shot him'; defendant's statement to Lucille McCloud 'I shot Phil and would do it again if I had to do it over'; and her admission that she might have pulled the trigger.