Opinion
Page __
__ Cal.App.2d __ 306 P.2d 1057 PEOPLE of the State of California, Plaintiff, Appellant and Respondent, v. Rodney G. SHERAN, Defendant, Respondent and Appellant. Cr. 3216. California Court of Appeals, First District, Second Division Feb. 11, 1957Rehearing Granted April 11, 1957.
Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Victor Griffith, [306 P.2d 1058] Deputy Atty. Gen., for plaintiff-appellant.
Bagshaw, Schaal & Martinelli, San Rafael, for defendant-appellant.
DOOLING, Acting Presiding Justice.
Defendant Rodney G. Sheran was accused by indictment of the murder of Esme Sheran, his wife. He pleaded not guilty and not guilty by reason of insanity but later withdrew the insanity plea. A jury found him guilty of murder in the second degree. On motion for new trial the court modified the verdict by reducing it to manslaughter. Defendant appeals from the judgment entered and from the order made denying his motion for a new trial. The People appeal from the order modifying the verdict to manslaughter.
The body of Esme Sheran was found on the Woodacre fire road in the hills four miles above Fairfax in Marin County at about 10:30 a. m. on May 26, 1955. She had been killed sometime between the hours of 6:00 p. m. and midnight the previous night. The right side of her skull had been crushed and there were large cuts, lacerations, or tears in the skin of her forehead. The cause of death was the crushing of the head from a blow or blows inflicted by some sort of a blunt-surfaced object which was rather heavy or which was moving at a high rate of speed. Two blood-stained rocks, one 10"' X 15"' and the other 4"' X 5"', were found near the body of the deceased. Dr. Manwaring, the autopsy surgeon who examined the body of deceased, testified that the fatal blows could have been inflicted with these rocks. No fingerprints could be taken from the rocks because of their rough surface and porous structure. It was likely that four blows had been struck to the victim's head by her assailant. There was a one by two inch opening in her head through which deceased's brain could be seen and there was brain tissue and dried blood in her hair. There was no alcohol in the body of the deceased and no evidence of rape or sexual molestation. Her clothes were clean and orderly and her arms, trunk and legs were generally quite clean and showed no bruising. Her fingernails were long, unbroken and clean. There were no cuts on her hands.
A neighbor of defendant and deceased testified that she last saw deceased between 4:30 and 4:45 p. m. on the day deceased was killed. Mrs. Sheran was then in a garage of the apartment where she lived. This same witness last saw defendant on that day about twenty minutes prior to this time as he looked down on the witness and deceased from a hill as they were sitting on the patio of the apartment. Another neighbor testified that she last saw deceased on May 25, 1955, in the apartment garage about 4:20 and that she last saw defendant park his red truck across from the apartment between 4:30 and 4:45 on that day.
James Oliver, the proprietor of a general store at Pt. Reyes Station and a longtime acquaintance of defendant's, testified that defendant drove up to his store in his red truck a few minutes after 7:00 p. m. on the evening of May 25, 1955. Defendant remained at the store about fifteen minutes, purchased some vermouth and burgundy wine, talked about mutual friends with Mr. Oliver, did not seem to be intoxicated, and in general appeared perfectly normal.
Louis Volk, a police captain of the city of Larkspur, testified that he saw defendant at about 11:30 p. m. in the Bon Air-Greenbrae area on the night of May 25, 1955. The witness stopped defendant in his truck because its location at that time of the night aroused his curiosity. He then recognized defendant and noted nothing unusual about him. There was no odor of alcohol about defendant and no one was in the truck with him.
The identity of the deceased was determined at approximately 7 p. m. on May 26, 1955. That evening certain law enforcement officers entered the apartment of defendant and deceased. There they found a note in defendant's handwriting bearing this message: 'Dear Esme: I have decided [306 P.2d 1059] to leave for a few days, so don't feel hurt if I am not here when you return. I will mail you a check, and also one for the rent, so don't worry. All my love, Rod.'
Alfons O. Pollentier, a member of the Oregon State Police, arrested defendant on May 28, 1955, on Highway 20 about 180 miles north and east of the California border. He noted nothing unusual about defendant other than that he appeared tired and disheveled. Defendant was then driving his red pick-up truck. The witness told defendant that he was under arrest, wanted in California, and said, 'I imagine you know what for.' Defendant replied: 'I think so.' Defendant made no protest and registered no surprise. When defendant was in the officer's car as he was being taken to the Sheriff's Office at Vale, Oregon, two broadcasts came over the car radio to the effect that the defendant, wanted for murder in California, had been apprehended. The defendant made no remark after the first of these broadcasts, but after the second he stated: 'I hope they know what they are talking about, because I don't.'
After his arrest in Oregon defendant was questioned by Sheriff John Elfering about his actions on May 25, 1955. The sheriff testified that in reply to a question as to when he last remembered seeing his wife defendant '* * * answered by saying that he and his wife were in their apartment; that his wife had given him a pack of cigarettes, and she had a pack of a like brand, and that they had gotten into the pickup, went to the market, where his wife did some shopping, and he waited for her outside the store; they then went into the hills and got out of the pickup; that an argument started; that everything went blooey after that.' The defendant said that he thought the cigarettes given him by his wife contained marihuana.
The defendant testified in his own behalf. He stated that he suffered a lapse of memory on May 25, 1955, the day his wife was killed, and that this memory loss extended over a several day period. He said that he remembered being at the apartment with his wife in the afternoon of that day and that they later left the apartment together to do some shopping. At this time defendant felt fuzzy-headed and he wondered if there was anything wrong with the cigarette he was smoking. Defendant vaguely remembered driving to the business section of San Anselmo with his wife and he recalled his wife getting out of their truck there. The next thing he remembered was waking in the rear end of his truck as it was parked along a highway in an unfamiliar area. He had no recollection of seeing either Mr. Oliver or Captain Volk on the evening of May 25 and did not remember writing the note to his wife found in their apartment. Defendant culd not recall being on the fire road with his wife on the day she was killed and he could not recall hitting his wife. To his knowledge neither he nor his wife had ever smoked marihuana.
It appeared that defendant was committed to Napa State Hospital in June of 1952 and released on leave in September of that same year. He was completely discharged in August of 1953. Defendant testified that this commitment was on his wife's petition and that when he was arrested in Oregon he thought that she had sworn out a warrant for his return to Napa. He stated that this was what he had in mind when he answered 'I imagine so' to the arresting officer's inquiry 'I suppose you know what you're wanted for.'
Defendant was examined by a physician on May 24, 1955, the day before the killing. Dr. Griffin, the examining physician, testified that defendant then appeared well oriented and he did not detect any signs of psychosis or mental illness.
Dr. Poliak, a specialist in the field of psychiatry, testified for the People in rebuttal. He stated that he had conducted a psychiatric examination of defendant and concluded that if defendant had any amnesia at all that it was of an hysterical type precipitated by some great emotional shock or traumatic experience. In this type of amnesia the loss of memory precedes [306 P.2d 1060] the event which caused it. The violent killing of a person could be the type of traumatic experience which could cause this amnesia or it could be caused by a fear. However the doctor stated that he had grave doubts whether the loss of memory described by defendant was genuine and in his opinion defendant might well be malingering.
Although defendant stated in his notice of appeal that he was appealing from the judgment entered he seems to have abandoned that portion of his appeal and limits his argument to the contention that the trial court erred in denying his motion for a new trial.
After the termination of the trial the defendant subjected himself to two sodium pentothal examinations. At the hearing on the motion for a new trial defendant testified that as a result of these examinations he had a better recollection of certain incidents that happened on May 25, 1955. However that recollection was quite vague and incomplete. In general defendant stated that after leaving San Anselmo on the afternoon in question he went toward Strawberry Point to see a Mr. Nider in regard to business. He then recalled being in Stinson Beach at a Shell Service Station and grocery store where he purchased some whiskey and then went to the McClure Ranch, beyond Inverness. He also stated that he had a vague recollection of having shaken Mr. Oliver's hand at his market sometime that evening.
In arguing that a new trial should be granted on the basis of newly discovered evidence defendant's attorney admitted that the evidence relied on failed to completely close the gap and failed to completely exonerate the defendant. This admission seems like quite an understatement. In denying the motion the trial court noted that in a situation of this sort the defendant might gradually over a long period of time remember certain events that occurred about the time of the crime. New trials could not be granted ad infinitum on the basis of this type of recollection.
It does not appear that the trial court abused its discretion in denying this motion. Such a motion on the ground of newly discovered evidence is looked upon with disfavor. People v. Miller, 37 Cal.2d 801, 236 P.2d 137. No reason appears why defendant could not have taken these sodium pentothal tests before the trial of the case. Defendant admits that such an examination given before or during the trial might have produced the same result as an examination after the trial. Here the trial court could reasonably find that defendant did not show proper diligence in presenting this evidence. Further the evidence claimed to be newly discovered does not seem to be likely to render a different result probable on retrial. On this basis also the motion was correctly denied. People v. McGarry, 42 Cal.2d 429, 267 P.2d 254.
Defendant's contention that the new trial should have been granted because of insufficiency of the evidence is without merit. The sufficiency of the evidence will be discussed in considering the People's appeal.
The power of a trial court to modify the judgment by reducing the degree of a crime on motion for new trial is found in Penal Code, § 1181, subd. 6, which gives the trial court power to grant a new trial 'When the verdict on finding is contrary to law or evidence, but if the evidence shows the defendant to be not guilty of the degree of the crime of which he was convicted, but guilty of a lesser degree thereof, or of a lesser crime included therein, the court may modify the verdict, finding or judgment accordingly without granting or ordering a new trial, and this power shall extend to any court to which the cause may be appealed.'
The first question which this section presents is whether the power granted to the trial court to modify the judgment includes the power to reweigh the evidence in determining whether 'the evidence shows the defendant to be not guilty of the degree of the crime of which he was convicted.'
[306 P.2d 1061] In determining whether 'the verdict or finding is contrary to * * * evidence' under the same subdivision of this section the trial court does have the power to reweigh the evidence, People v. Robarge, 41 Cal.2d 628, 262 P.2d 14; People v. Sarazzawski, 27 Cal.2d 161 P.2d 934, but a like power to reweigh the evidence is not possessed by an appellate court on appeal, People v. De Paula, 43 Cal.2d 643, 276 P.2d 600.
Whether the trial court has a like power to reweigh the evidence in exercising the power to reduce the degree of a crime is a matter left in some confusion by expressions by way of dicta in a series of decisions by the Supreme Court, in all of which that court was considering its own power to reweigh the evidence on appeal under Penal Code, § 1181, subd. 6, and did not expressly have before it the power of the trial court to do so.
In the first of these cases, People v. Thomas, 25 Cal.2d 880, at pages 904-905, 156 P.2d 7, at page 20, the court speaking of the respective functions of the trial court and appellante court under Penal Code section 1181, subd. 6, said: 'While the power granted to the appellate court is equal to that given the trial court the circumstances which will justify its exercise in a particular court are those which are appropriate to typical functioning of that court. In other words, upon an application to reduce the degree or class of an offense, a trial judge may review the weight of the evidence but an appellate court should consider only its sufficiency as a matter of law.' Emphasis the Supreme Court's. Relying on this dictum Fricke in his California Criminal Procedure, 3d edition, at pages 337-338 says:
'When the question is presented to an appellate court the conviction may be reduced only where, as a matter of law, the evidence does not sustain the conviction (People v. Meichtry, 37 Cal.2d 385 [231 P.2d 847]), but when it arises in the trial court which, on a motion for a new trial, may weigh the evidence, the duty of reducing the conviction * * * arises whenever there exists in the mind of the trial judge a reasonable doubt as to the defendant's guilt of the offense stated in the verdict of the jury (People v. Thomas, 25 Cal.2d 880 [156 P.2d 7]).'
So the matter rested until the question of its own power under Penal Code,§ 1181 subd. 6, came again before the Supreme Court in People v. Daugherty, 40 Cal.2d 876, 256 P.2d 911. In that case the Supreme Court discussed, and refused to follow, People v. Daniel, 65 Cal.App.2d 622, 151 P.2d 275. In the Daniel case the District Court of Appeal had weighed the evidence and reduced the degree of the crime on appeal. The Supreme Court said, 40 Cal.2d at pages 884-885, 256 P.2d at pge 916: 'The Daniel case relied on the rule in connection with the power of the trial court to reduce the degree of the crime under section 1181, subd. 6, of the Penal Code, but we held the rule was the same under that section, 1181, subd. 6, as it was was under section 1260 of the Penal Code and in neither case may the Court reduce the degree of the crime unless the evidence is legally insufficient to support the higher degree of which defendant was convicted, and in determining that question, the evidence, even if circumstantial, is not weighed. People v. Odle, 37 Cal.2d 52, 230 P.2d 345.'
A careful reading of this language leads to the conclusion that it is perfectly consistent with the dictum in People v. Thomas, supra, that in exercising the power to reduce the degree of the crime under section 1181, subd. 6, the trial court may weigh the evidence. What the court was saying is that when the appellate court reweighed the evidence in the Daniel case it was relying on a rule applicable to the trial court in reducing the crime under section 1181, subd. 6, but that it was held in People v. Odle that under section 1260, Penal Code, as under 1181, subd. 6, 'in neither case may the Court [i. e. the appellate court] reduce the degree of the crime unless the evidence is legally insufficient to support the higher [306 P.2d 1062] degree * * * and in determining that question, the evidence * * * is not weighed.'
That the Supreme Court in the Daugherty case was discussing only the power of an appellate court to reweigh the evidence would seem to follow from the fact that People v. Odle, 37 Cal.2d 52, 230 P.2d 345, upon which the court relied in deciding Daugherty was concerned with the provisions of section 1260, Penal Code, which in express terms defines only the powers of the appellate courts and has no application whatsoever to the trial courts. Nor in Odle did the Supreme Court discuss in any wise the function of the trial court under section 1181, subd. 6.
However in its latest dictum on the subject in People v. Sutic, 41 Cal.2d 483, 493, 261 P.2d 241, 246, the Supreme Court said flatly, citing People v. Daugherty as its sole authority on the subject:
'As above discussed, the evidence fully justified the jury's finding that the homicide was * * * murder in the first degree. * * * Under such circumstances neither the trial court nor this court would be authorized to reduce the degree of the crime.' Citing only People v. Daugherty, supra; emphasis ours.
Somewhat cryptically but none the less clearly in this latest dictum the Supreme Court is saying that where the evidence will support the conviction of the higher degree neither the trial court nor the appellate court can reduce the degree of the crime. The quoted language clearly equates the power of the trial court to its own. The same construction was placed on the Daugherty case by the District Court of Appeal in People v. Jones, 136 Cal.App.2d 175, 288 P.2d 544.
Faced by these contradictory dicta we accept the latest pronouncement of the Supreme Court on the subject with the realization that that court can take this case over if it is not satisfied with our reading of its decisions and lay down a rule for the future guidance of trial courts in this case in which the question of the power of the trial court to reduce the crime under section 1181, subd. 6, is squarely presented.
The evidence is sufficient to support the finding of the jury that appellant killed his wife. Once the homicide is proved the necessary malice to make it murder of the second degree is presumed. 25 CalJur.2d Homicide, § 107, p. 619. Unless circumstances are disclosed in the People's case to reduce the crime to manslaughter the burden of proving circumstances in mitigation of the offense devolves upon the defendant. Pen.Code, § 1105. There was nothing in the People's case to compel a finding by the jury against the presumption of malice. There were no eyewitnesses to the crime and the evidence produced by the defendant was therefore all circumstantial. The inferences to be drawn from circumstantial evidence are primarily for the jury. Without reciting the defendant's evidence it was not of such a character as to compel the jury to find that malice did not exist, although the jury might from all the evidence have drawn that conclusion. It follows that the trial court in this case could not reduce the crime to manslaughter unless it had the power to reweigh the evidence. As we read People v. Sutic, supra, 41 Cal.2d 483, 493, 261 P.2d 241, the Supreme Court's latest expressed view is that no power to reweigh the evidence is given to the trial court in such a case. It follows that the order reducing the crime to manslaughter must be reversed.
Judgment and order denying motion for new trial affirmed. Order reducing the crime to manslaughter reversed with directions to the trial court to arraign the defendant for sentence for murder of the second degree as found by the jury's verdict.
KAUFMAN, J., DRAPER, J. pro tem., concur.