PEOPLE v. DORMAN

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District Court of Appeal, Second District, Division 2, California.

PEOPLE v. DORMAN et al.

Cr. 3865.

Decided: December 05, 1945

Frederick W. Kant, of San Francisco, for appellant. Robert W. Kenny, Atty. Gen., Frank Richards, Deputy Atty. Gen., and Fred N. Howser, Dist. Atty., and Robert Wheeler, Deputy Dist. Atty., both of Los Angeles, for respondent.

From judgments of guilty of (1) murder in the first degree, (2) robbery in the first degree and (3) kidnapping for the purpose of robbery, after trial before a jury, defendant appeals. There is also an appeal from the order denying his motion for a new trial.

The evidence being viewed in the light most favorable to the People (respondent), and pursuant to the rules set forth in People v. Pianezzi, 42 Cal.App.2d 265, 269, 108 P.2d 732, the essential facts are:

At about 10:30 a.m., April 17, 1944, Ralph William Bigelow, now deceased, and defendant Smith entered the Brite Spot Cafe at 5214 Lankershim Boulevard, North Hollywood. They stayed in the cafe about four hours drinking beer. At the cafe defendant Smith left Mr. Bigelow and talked to his co-defendant Dorman who was standing at the bar. During the time that the two defendants were in the Brite Spot Cafe they frequently retired to the rest room and on one occasion defendant Dorman suggested to defendant Smith that they ‘roll’ Mr. Bigelow, to which defendant Smith replied that the deceased was a good guy and he was buying him a lot of drinks and he did not want to ‘roll’ him. Mr. Bigelow and the two defendants left the Brite Spot Cafe about 3:30 p.m. on April 17, 1944, at which time defendant Smith was sober. At about 6:00 p.m. the same day Mr. Bigelow was seen near the North Hollywood Post Office with defendant Smith driving Mr. Bigelow's car, and defendant Dorman and Mr. Bigelow in the rear seat of the car. The two men in the rear sear were fighting. The car was later parked in an alley near the post office. Defendant Smith struck Mr. Bigelow who was fighting with defendant Dorman. Mr. Bigelow was injured and his head and face were bleeding. The car then drove away and started north on Highway No. 6 where defendant Dorman hit Mr. Bigelow in the head with a rock. They then drove to a point six miles north of San Fernando where the car was stopped and the two defendants removed Mr. Bigelow from the car, defendant Dorman taking Mr. Bigelow's wallet and $30 in money, half of which he gave to defendant Smith. Mr. Bigelow's body was then rolled over an enbankment at the foot of which he was found dead on April 23, 1944.

After disposing of the deceased's body the two defendants drove to Tehachapi, California, where they abandoned Mr. Bigelow's car, spent the night, and later went to Stockton where on April 20, 1944, defendant Smith pawned the deceased's watch. The rear seat of the deceased's car when found was covered with blood, and there were also found in the car buttons which were similar to buttons on defendant Smith's clothing and from which clothing similar buttons were missing. Human blood was found on defendant Smith's hat at the time of his arrest.

Both defendants were arrested in Sacramento and returned to Los Angeles for trial.

Defendant Smith relies for reversal of the judgments on four propositions which will be stated and answered hereunder seriatim:

First: The trial court abused its discretion in denying defendant Smith a continuance of the time of the trial.

This proposition is untenable. The law is established in California that an appellate court will not consider alleged error of the trial court in refusing to grant a continuance which is not supported by affirmative proof in open court upon reasonable notice that the ends of justice require a continuance. (Section 1050, Penal Code; People v. McClain, 55 Cal.App.2d 399, 403, 130 P.2d 978; People v. Rokes, 18 Cal.App.2d 689, 694, 64 P.2d 746. See also People v. Ward, 105 Cal. 335, 337, 38 P. 945, and People v. Whinnery, 55 Cal.App.2d 794, 798 et seq., 131 P.2d 33). At the time of the hearing in the instant case neither affidavit nor oral testimony was offered showing any reason why the trial should be continued to a future date. Since defendant Smith has failed to meet the requirments of the foregoing rule he has failed to show any error which will be considered by this court, in the trial court's ruling denying him further time to prepare his case for trial.

Second: There is not any substantial evidence to support the judgment on count three, to wit, kidnapping for the purpose of robbery.

This proposition is likewise untenable. In view of the evidence set forth above, it is clear that the jury was justified in believing that defendant Smith and his codefendant kidnapped the deceased for the purpose of robbing him. After killing Mr. Bigelow they removed his wallet and money from his clothing and defendant Smith subsequently pawned Mr. Bigelow's watch. Further discussion of the evidence would serve no useful purpose.

Third: The trial court committed prejudicial error in instructing the jury as follows:

(a) [1] ‘It is the law of this State that every person who seizes, entices, abducts, conceals, kidnaps, or carries away any individual by any means whatsoever, with intent to hold or detain, or who holds of defains, such individual to commit robbery, or who aids or abets any such act, is guilty of Kidnaping, 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 subjected to such kidnaping suffers bodily harm.

[2] ‘It is not necessary that there be both a seizing and carrying away of the victim in order to constitute the crime of Kidnaping. The mere seizing of an individual with intent to commit a robbery is as much a violation of the law of kidnaping, even though such person was not moved.

[3] ‘There is nothing in the law of this state which requires that to constitute the cirme of kidnaping for the purpose of robbery the victim of such offense shall have been moved or carried away for any particular distance or any distance at all, nor does the law require that to constitute the crime of kidnaping for the purpose of robbery that a robbery actually be committed. The gist of the offense is the intent with which the individual kidnapped is held or detained.

[4] ‘To constitute the crime of kidnaping for the purpose of robbery it is not necessary that, if a robbery is perpetrated, the kidnaping precede the robbery, for it is the law of this state that the crime of robbery is not completed the moment the stolen property is in the possession of the robbers. The crime of robbery, which is a combination of the crime of assault with that of larceny, includes the element of a taking away of the property stolen and this taking away is a transaction which continues as the perpetrators depart from the place where the property was seized. Therefore, if a robbery is perpetrated and the person from whom the property is taken is thereafter kidnapped as a part and in pursuance of the robbery, the perpetrators are guilty of kidnaping for the purpose of robbery.’

Defendant Smith urges that the foregoing instruction was erroneous because of the second and third paragraphs thereof, since arrest of a victim without moving him is defined by Section 207 of the Penal Code1 to be kidnapping only where there is the intention of taking the victim out of the state. Section 207 of the Penal Code is not here involved. Defendant Smith was charged with violating Section 209 of the Penal Code2 which defines the offense of kidnapping for the purpose of robbery. The foregoing instruction was a fair and accurate statement of the principles of law involved.

(b) ‘If the unlawful killing is done in the attempt to perpetrate a felony other than those mentioned in the description of murder in the first degree, or the circumstances of the killing show an abandoned heart, this is murder of the second degree, unless the evidence proves the existence in the mind of the slayer of the specific intent to take life. If such specific intent exists at the time of such unlawful killing the offense committed would of course be murder of the first degree.’

In view of the decision in People v. Thomas, 25 Cal.2d 880, 898, 156 P.2d 7, the foregoing instruction was prejudicially erroneous. Mr. Justice Schauer speaking for our Supreme Court said at page 898 of 25 Cal.2d, at page 17 of 156 P.2d:

‘A still more serious error appears in the instruction that ‘If the unlawful killing is done without the provocation and sudden passion which reduces the offense to manslaughter, or is done in the commission of an unlawful act, the natural consequences of which are dangerous to life, or is committed in the attempt to perpetrate a felony other than those mentioned in the description of murder in the first degree, or the circumstances of the killing show an abandoned heart, this is murder of the second degree, unless the evidence proves the existence in the mind of the slayer of the specific intent to take life. If such specific intent exists at the time of such unlawful killing, the offense committed would of course be murder of the first degree.’ (Italics added.) Such instruction is egregiously erroneous. If the jury followed it they were bound to find, upon the facts of this case, that the homicide was murder of the first degree if it was murder at all.'

Such instruction was applicable to count one in the indictment charging defendant Smith with murder in the first degree.

Fourth: The trial court committed prejudicial error in refusing to instruct the jury as follows:

‘In the event that you find that any of the confessions of a defendant introduced by the prosecution were not freely and voluntarily made by such defendant or were obtained from such defendant while he was irrational of mind, then you are free to disregard such confession in its entirety.’

This proposition is untenable. There was not any evidence received tending to show that defendant Smith's confession was not freely and voluntarily made or obtained from him while he was irrational. On the contrary the confession which he made when arrested in Sacramento was received in evidence without objection, and at the time of the trial defendant Smith said that it was true except in certain particulars which he claimed he had related upon hearsay from his co-defendant Dorman.

The evidence disclosed that defendant Smith had been drinking when arrested. However, as pointed out above, he subsequently, at the time of his trial, admitted the statements he had made were true. Therefore the fact of his alleged intoxication would not make his confession involuntary or inadmissible. Where, as here, the evidence admits of no rational conclusion other than that the confession of defendant was freely and voluntarily made there is no necessity of the court instructing the jury as to the general rule of law relating to the receipt and consideration of confessions. (People v. Hubbell, 54 Cal.App.2d 49, 74, 128 P.2d 579.)

In view of our conclusions it is unnecessary to discuss other points urged by counsel.

Since the trial court committed prejudicial error in instructing the jury as to count one, murder in the first degree (see proposition Two (b), supra), the judgment of guilty as to count one is reversed.

No error appearing in the record as to counts two and three, the judgments of guilty as to each count and the order denying the motion for a new trial as to such counts are and each is affirmed.

FOOTNOTES

1.  Section 207 of the Penal Code reads thus:‘Every person who forcibly steals, takes, or arrests any person in this state, and carries him into another country, state, or county, or into another part of the same county, or who forcibly takes or arrests any person, with a design to take him out of this state, without having established a claim, according to the laws of the United States, or of this state, or who hires, persuades, entices, decoys, or seduces by false promises, misrepresentations, or the like, any person to go out of this state, or to be taken or removed therefrom, for the purpose and with the intent to sell such person into slavery or involuntary servitude, or otherwise to employ him for his own use, or to the use of another, without the free-will and consent of such persuaded person; and every person who, being out of this state, abducts or takes by force or fraud any person contrary to the law of the place where such act is committed, and brings, sends, or conveys such person within the limits of this state, and is afterwards found within the limits thereof, is guilty of kidnaping.’

2.  Section 209 of the Penal Code reads thus:‘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 or to exact from relatives or friends of such person any money or valuable thing, or 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 kidnaping suffers or suffer bodily harm or shall be punished by imprisonment in the State prison for life with possibility of parole in cases where such person or persons do not suffer bodily harm.’

McCOMB, Justice.

MOORE, P. J., and FOX, Justice pro tem., concur.

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