PEOPLE v. Oswald R. Atkinson, Appellant.*

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District Court of Appeal, Second District, Division 1, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Elmer WILBURN and Oswald R. Atkinson, Defendants, Oswald R. Atkinson, Appellant.*

Cr. 5879.

Decided: August 12, 1957

Nathan Kline, Los Angeles, for appellant. Edmund G. Brown, Atty. Gen., Miles J. Rubin, Deputy Atty. Gen., for respondent.

In county I of an information filed in Los Angeles county, the defendants were charged with the murder (Penal Code, § 187) of Walter Joseph James, on or about June 4, 1956, and in counts II, III and IV of such information they were charged with armed robbery (Penal Code, § 211) on June 4, 1956. It was further alleged in the information that at the time of the commission of the offenses the defendants were armed with deadly weapons, namely a .38 caliber revolver and a .32 caliber revolver.

The defendants pled not guilty to each count. However, in the course of the trial they each changed their pleas to that of guilty as to the three counts of robbery and admitted being armed with a dealy weapon at the time of the commission of the robberies, as charged. The court fixed the degree at robbery of the first degree. The case proceeded through trial with a jury on the murder charge and each defendant was found guilty of murder in the first degree and of being armed at the time, as charged. The jury recommended life imprisonment for both defendants. A motion for a new trial was made by appellant Atkinson, which was denied. The appellant was sentenced to life imprisonment upon count I, the murder charge, and sentenced for the term prescribed by law as to counts II, III and IV, the robbery charges. This appeal if from the judgment and the order denying a new trial.

A reśume ́of the pertinent facts of the case is as follows: About a week or so before June 4, 1956, the defendants discussed and planned the robbing of the Shop-Rite Liquor Store, which was located in Los Angeles. About 9:30 o'clock p.m., on June 4, 1956, pursuant to the plan, the defendants approached the liquor store in an automobile for which they had previously arranged. After parking the automobile nearby, Wilburn entered the store and purchased a soft drink and observed that there were three people in the store, Willie James, a clerk, Walter James, his brother, and Thomas Wright, a patron. Wilburn returned to the street and told Atkinson that they should not ‘take’ the store because three people were in it. Atkinson inquired of Wilburn if any of the three had a gun, and Wilburn reported that they did not. Atkinson then stated that they should go ahead with the robbery. Both defendants entered the liquor store, Wilburn going in first with a loaded .32 caliber Smith & Wesson revolver in his hand, and Atkinson following with a loaded .38 caliber Colt revolver in his hand.

Atkinson told the three people in the store (Willie James, Walter James and Thomas Wright) to keep their hands still, to get into the back of the store and to keep their backs turned, or they would get a bullet. The three persons were forced to bend over beer cases and their pockets were searched and their money and property were taken from them. Atkinston then instructed Willie James and Wright to lie on the floor with their heads down, and told them that if they moved he would put a bullet in their back. Wilburn took Walter James to the cash rigister in the front of the store, and there had him open the register and take the money out and put it into a paper bag.

Thomas Watson, a retired police officer, came into the store shortly after 10:00 o'clock p.m. to make a purchase and he saw Wilburn with the gun in his hand, Walter James behind the counter by the cash register, and Atkinson standing in the customer's aisle opposite the register. Watson was told by Atkinson to go to the back of the store with the others. Watson had in his possession a .45 Colt automatic with six rounds of copper-coated bullets in the clip. Watson apparently sized up the situation for what it was and took a couple of steps toward the rear. At that moment Atkinson heard a noise coming from the direction of the front of the store and turned his head in that direction for an instant, and when he turned back he saw Watson pointing a gun at him from underneath Watson's arm. Watson fired his .45 automatic and the bullet from it hit Atkinson in the stomach, spinning him around. Watson stepped over to an area where there was a soft drink case and fired a second shot at Atkinson. Atkinson, in the meantime, while spinning fired his .38 caliber revolver. When Wilburn heard Watson's first shot, he looked up and saw Watson shooting at Atkinson. Wilburn told Walter James to get down and they both crouched. Watson, after his second shot at Atkinson, moved from the soft drink case toward another area in the store and fired two shots at Wilburn, who was at that time erect and had a gun pointing at Watson. During the interval when Watson made such move, atkinson was going toward the front door and firing his gun. After Watson fired his last two shots he stepped behind a liquor cabinet for about two seconds, and then looked out and saw Wilburn jumping the counter and Walter James stumbling toward him and fall face downward. Watson saw no reaction from either Walter James or Wilburn when he fired the two shots at Wilburn. Apparently Wilburn did not fire any shots from his revolver. The entire time form the first shot until Walter James stumbled to the floor was about twenty seconds.

Motorcycle officers Fitzgerald and Rucker were in the vicinity of the store, writing a citation to a motorist, and heard the shots. Fitzgerald saw two people come from the store when the shooting stopped. It later developed that Atkinson was one of such persons, and he ran northerly and the officers lost sight of him; the other person was Wilburn who ran southerly and was caught by the officers, who made a search of him and found the .32 caliber revolver in Wilburn's right-hand coat pocket with six unexpended cartridges in it. They also found on Wilburn the bag containing the money from the cash register and a wallet taken from one of the people in the store. Officer Fitzerald found where Atkinson had dropped the .38 caliber revolver, in a property close by the store, with five spent cartridges and one live cartridge in the cylinder. Certain other officers made an examination of the store and found bullet holes and some slugs. Four of the five bullets fired by Atkinson were accounted for either by recovery or by discovery of the holes or markings left in the course of flight. One bullet was unaccounted for.

Atkinson, after running away, ultimately went to the Georgia Street Hospital that night for treatment. A communication was received by the police from the hospital to the effect that Walter James had died, and later word was received that Atkinson was at the hospital. Wilburn, in custody of the officers, went to the hospital and there identified Atkinson as being his co-robber, and Atkinson said, ‘I guess it is all up.’

The police had a conversation with Atkinson at the General Hospital after he had received treatment. The police made notes of the talk which were later type-written into a document which was then read and signed by Atkinson. The statements were freely and voluntarily made. In the written statement Atkinson set forth how he and Wilburn had entered the store, guns in hand so to speak; how they ordered the people to go to the back of the store; how they took the money and the wallet from the victims and how Wilburn took ‘one guy to the cash register’ and how the man in a grey suit (Watson) came in and how he (Atkinson) ordered the man to go to the back of the store and that ‘as soon as he (Watson) passed me he pulled his gun and shot me in the guts'; that ‘I must have shot, but I don't remember. I thought I shot ‘Popeye’ (Wilburn)'; that ‘I used the .38 revolver that ‘Pop-eye’ (Wilburn) had and he used the .32 revolver' and ‘I'm sorry he is dead. Why didn't you guys stop me before this happened.’

An autopsy report showed that Walter James, the decedent, suffered two gunshot wounds, one in the chest and abdomen, which was fatal, and one in the left arm, which was admittedly not fatal. Both bullets passed through the decedent's body.

Various experts testified as to the course of the bullets, and further to the effect that the slug or bullet which killed the decedent was from the .38 caliber gun which Atkinson had fired, and not from the .45 caliber gun which Watson had fired.

The appellant contends that the evidence was insufficient to sustain the verdict of guilty, and further that the evidence affirmatively demonstrates that it was a physical impossibility for Atkinson to have fired the fatal shot. He further argues that if there ‘were * * * any slugs remaining in the body of the deceased, the problem would be completely simplified’.

A complete reading of the testimony and a perusal of the exhibits in this case leads us to the conclusion that there is ample evidence from which the jury could determine that Atkinson fired the fatal shot, and that the evidence was not at all improbable or inherently inprobable. In People v. Headlee, 18 Cal.2d 266, at page 267, 115 P.2d 427, the court said with reference to the matter of improbability: ‘To be improbable on its face the evidence must assert that something has occurred that does not seem possible could have occurred under the circumstances disclosed. The improbability must be apparent; evidence which is unusual or inconsistent is not necessarily improbable.’ And in People v. Newland, 15 Cal.2d 678, at page 681, 104 P.2d 778, at page 779, the court said: ‘The court on appeal ‘will not attempt to determine the weight of the evidence, but will decide only whether upon the face of the evidence it can be held that sufficient facts could not have been found by the jury to warrant the inference of guilt. For it is the function of the jury in the first instance, and of the trial court after verdict, to determine what facts are established by the evidence, and before the verdict of the jury, which has been approved by the trial court, can be set aside on appeal upon the ground’ of insufficiency of the evidence, ‘it must be made clearly to appear that upon no hypothesis whatever is there sufficient substantial evidence to support the conclusion reached in the court below.’'

Duly qualified experts gave their opinions which pointed, without reservation, to the fact that the bullet from the .38 caliber revolver was the one which killed the deceased. It needs no citation of authority that qualified experts may give their opinions in such matters. The jury were not bound to accept the opinions as conclusive, but they were to, and did, give the testimony the weight to which they thought it was entitled. Even without the expert testimony there was evidence from which the jury could have concluded that the fatal bullet came from Atkinson's gun. The appellant's statement that he thought he had shot ‘Pop-eye’ indicates that he had knowledge that he shot somebody, and in that the deceased and ‘Pop-eye’ (Willburn) were very close to each other at the time of the shooting, it could well be difficult for the appellant to determine just which of the two he had actually shot.

Appellant, as heretofore pointed out, argues that if there ‘were * * * any slugs remaining in the body of the deceased, the problem would be completely simplified’. In other words, shortly stated, the appellant's contention is that he could not be convicted of murder in this case unless it is shown that he fired the fatal shot. Apparently the district attorney was of the same opinion, as he stated in his argument, among other things:

‘Now, what is the problem that we have? Whose bullet killed Mr. James? Because upon that is the crux of the murder case. * * * If we don't know, we resolve that doubt in favor of the defendants. And, well, we don't exactly say that Mr. Watson did it, and we don't exactly say that he didn't do it, but we don't know.

‘* * * that in order to find this homicide chargeable to the defendants—I use the word in the plural for a reason which I will explain later—that it will be necessary that you find that the fatal shot came from a gun in the hands of the defendant; if it came from Mr. Watson, these defendants, as regrettable as it may be, would not be chargeable with that murder. That is the law, * * *.

‘* * * The case revolves on that pivot, on a matter of science.

‘* * * If it was one man's shot, the defendants were not guilty; if it was the defendant's shot, they were guilty.’

In this writer's opinion it is not so simple.

Under our law ‘All murder which is * * * committed in the perpetration or attempt to perpetrate * * * robbery, * * * is murder of the first degree * * *.’ Penal Code, § 189. The cases in California seem to have proceeded upon the assumption that one who participated in the crime was responsible for the acts actually or constructively performed by him. No case has been found in this state where the activities of an adverse party in the robbery have been attributed to the participants in the robbery. Pennsylvania's statute as to murder is substantially the same as ours. In Commonwealth v. Thomas, 1955, 382 Pa. 639, 117 A.2d 204, defendant and one Henry Jackson, Jr., the deceased, entered the grocery store of Cecchini and ordered him to open the cash drawer. Jackson was armed with a revolver which he displayed to Cecchini. The defendant removed the money and he and Jackson ran from the store. Jackson ran one way and the defendant the other. Cecchini secured his own pistol and chased Jackson. In an exchange of shots Cecchini killed Jackson. The defendant was later apprehended. The court said that the sole question was, can a co-felon be found guilty of murder where the victim of an armed robbery justifiably kills the other felon as they flee, from the scene of the crime? The court's answer was, yes. In deciding the case the court used language which is appropriate in this matter, stating (382 Pa. 639, 117 A.2d at pages 205–206):

“‘He whose act cause in any way, directly or indirectly, the death of another, kills him, within the meaning of the law of felonious homicide. It is a rule both of reason and the law that whenever one's will contributes to impel a physical force, whether another's, his own, or a combined force, proceeding from whatever different sources, he is responsible for the result, the same as though his hand, unaided, had produced it. * * *’ There can be no doubt about the ‘justice’ of holding that felon guilty of murder in the first degree who engages in a robbery or burglary and thereby inevitably calls into action defensive forces against him, the activity of which forces result in the death of a human being'. * * *

‘* * * The felon's robbery set in motion a chain of events which were or should have been within his contemplation when the motion was initiated. He therefore should be held responsible for any death which by direct and almost inevitable sequence results from the initial criminal act.

“For any individual forcibly to defend himself or his family or his property from criminal aggression is a primal human instinct. It is the right and duty of both individuals and nations to meet criminal aggression with effective countermeasures. Every robber or burglar knows when he attempts to commit his crime that he is inviting dangerous resistance * * * knows that a likely later act in the chain of events he inaugurates will be the use of deadly force against him on the part of the selected victim. For whatever results follow from that natural and legal use of retaliating force, the felon must be held responsible'. * * *

‘* * * ‘Courts have a duty, especially in these days when crime has become so prevalent, to see that the lives, the property and the rights of law-abiding people are protected and consequently must delicately balance the scales of justice so that the rights of the public are protected equally with those of persons accused of crime.’ * * *

‘So, too, in the instant case. That the victim, or any third person such as an officer, would attempt to prevent the robbery or to prevent the escape of the felons, and would shoot and kill one of the felons was ‘as readily foreseeable’ as the cases where an innocent bystander is killed, even unintentionally, by the defendant's accomplice, or where the victim of the robbery is slain, or where a pursuing officer is killed. The killing of the co-felon is the natural foreseeable result of the initial act. The robbery was the proximate cause of the death. We can see no sound reason for distinction merely because the one killed was a co-felon. It was a killing in the perpetration of a robbery which was ‘unquestionably contemplated and callously ignored by the defendant, who most certainly intended to commit a crime which he knew might well give rise to it’.'

Many law review articles have considered and commented upon the case, the most recent of which is a well-considered statement in 30 Southern California Law Review, page 357 (April, 1957).

In the case of Commonwealth v. Almeida, 362 Pa. 596, 68 A.2d 595, the court, in a well-reasoned opinion, held all of the robbers were guilty of murder in the first degree even though the fatal shot was fired by a policeman or by an innocent bystander. The defendant's contention was that he could not be convicted of murder unless he fired the fatal shot.

In Commonwealth v. Moyer, 357 Pa. 181, 53 A.2d 736, at page 741–742, it is said:

‘It is * * * consistent with reason and sound public policy to hold that when a felon's attempt to commit robbery or burglary sets in motion a chain of events which were or should have been within his contemplation when the motion was initiated, he should be held responsible for any death which by direct and almost inevitable sequence results from the initial criminal act. * * * Every robber or burglar knows that a likely later act in the chain of events he inaugurates will be the use of deadly force against him on the part of the selected victim. For whatever resultes follow from that natural and legal use of retaliating force, the felon must be held responsible. For Earl Shank, the proprietor of a gas station * * * which * * * was being attacked by armed robbers, to return the fire of these robbers with a pistol which he had at hand was as proper and as inevitable as it was for the American forces at Pearl Harbor * * * to return the fire of the Japanese invaders. * * *

‘If in fact one of the bullets fired by Earl Shank in self-defense killed Harvey Zerbe [a gasoline station attendant], the responsibility for that killing rests on Moyer and his co-conspirator Byron, who had armed themselves with deadly weapons for the purpose of carrying out their plan to rob Shank and whose murderous attack made Shank's firing at them in self-defense essential to the protection of himself and his employees and his property.’

In People v. Podolski, 1952, 332 Mich. 508, 52 N.W.2d 201, at page 204, the Supreme Court of Michigan said, with reference to the problem:

‘There are not a sufficient number of cases on the point to establish with finality the weight of authority. Defendant cites cases from Illinois, Bulter v. People, 125 Ill. 641, 18 N.E. 338, 1 L.R.A. 211; Massachusetts, Commonwealth v. Campbell, 7 Allen. 541, 89 Mass. 541; Kentucky, Commonwealth v. Moore, 121 Ky. 97, 88 S.W. 1085, 2 L.R.A.,N.S., 719; and Missouri, State v. Majors, Mo., 237 S.W. 486.

‘We think the better reasoning appears in a Pennsylvania case, Commonwealth v. Moyer, 357 Pa. 181, 53 A.2d 736. See also a Texas case, Taylor v. State, Tex.Cr.App., 63 S.W. 330, and Arkansas, Wilson v. State, 188 Ark. 846, 68 S.W.2d 100.’

The court in the Podolski case held that the trial judge correctly charged the jury that if the fatal bullet had been fired by an officer, such fact would not preclude the jury from finding the defendant guilty of murder.

Other decisions holding that a felon is guilty of murder when a third person is killed by gunfire intended for the felon, in the prevention of the felony, are—People v. Krauser, 315 Ill. 485, 146 N.E. 593, 601; People v. Payne, 359 Ill. 246, 194 N.E. 539, 543; Miers v. State, 157 Tex.Cr.R. 572, 251 S.W.2d 404, 408.

We are not unaware of the ruling in People v. Ferlin, 203 Cal. 587, 265 P. 230, where one arsonist was killed in a fire and the other was held not guilty of murder because the burning death was opposed to the conspiracy to burn the building and was not in furtherance of it. See Commonwealth v. Bolish, 381 Pa. 500, 113 A.2d 464, where a defendant in a similar situation was convicted upon a proximate cause theory.

In this case Wilburn, for all intents and purposes, compelled the deceased to be close by him in going to the cash register and thereby placed him in a position of extreme danger. Surely Atkinson and Wilburn could foresee that by their conduct it was reasonable to anticipate violent and dangerous resistance, and that there might well be shots fired and deaths resulting therefrom. The two robbers each had a loaded gun, and obviously each of them intended to use such gun if the occasion arose, otherwise, why gund in hand in the first instance?

There may be some good reasons for the divergence of views and opinions as to the theoretical approach in the ‘felony murder rule’, one set of decisions following the ‘proximate cause’ theory, and another the ‘furtherance of the felony’ doctrine, and still others not following any rule at all, but in any event it would appear certain that courts should not belabor themselves in too fine distrinctions in terms and otherwise which result in the protection of armed robbers, who by their course of conduct with malice, start and continue with actions which ultimately result in the violent death may be imposed upon the armed robber, and of innocent victims.

Under the circumstances we can see no unbalance in any severe punishment which the death of an innocent victim. We believe that any robber ought to be held responsible for the retaliating damage which he precipitates.

The judgment and the order denying a new trial are, and each is, affirmed.

FOURT, Justice.

WHITE, P. J., and DRAPEAU, J. pro tem., concur.