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

The PEOPLE of the State of California, Plaintiff and Respondent, v. John DEWBERRY, Defendant and Appellant.*

Cr. 3394.

Decided: July 22, 1958

Gladstein, Andersen, Leonard & Sibbett, George R. Andersen, Norman Leonard, San Francisco, for appellant. Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., John S. McInerny, Deputy Atty. Gen., San Francisco, for respondent.

The appellant, John Dewberry, was indicted on two counts: the first for the murder of Rudolph Glover on October 14, 1956, and the second for the unlawful carrying of a weapon in violation of Penal Code, section 12021. The indictment also charged two prior felony convictions: one for assault with a deadly weapon, and the second for a violation of the federal narcotics law. Appellant entered a plea of not guilty. A jury found the appellant guilty of murder in the second degree and of violating Penal Code, section 12021. Appellant moved for a new trial as to both counts. Both motions were denied and the appellant sentenced to the State prison for the term prescribed by law, the sentences to run concurrently. This appeal is taken only from the judgment of conviction of second degree murder and the order denying a motion for a new trial on the murder count. No questions are presented as to the judgment and order denying a new trial on the second count. The contentions on appeal are: first that the evidence establishes only manslaughter, and second, that the trial court committed certain prejudicial errors in its instructions to the jury.

The circumstances of the shooting, as stated by the eyewitness, Jesse Mosley, are as follows: after his all night job as a door-man at 7:30 a. m. Mosley entered a bar called ‘The Plantation’ located on the north side of Post Street in San Francisco. Mosley sat down at the east and west portion of the bar near the entrance and had two highballs. About forty-five minutes later, the appellant entered. Mosley had seen the appellant around and knew his name, but did not know the appellant personally. Mosley saw the appellant go to the telephone several times. The appellant complained to Mosley about not being able to reach his sister by telephone. The appellant sat down at the north and south portion of the bar about 10 feet diagonally away from Mosley.

The appellant began a conversation with another customer about gambling. During this conversation, the appellant flashed a sizeable roll of bills. Appellant told the customer that he was willing to gamble, but that he did not want any foolishness about his money because he carried his own protection. The appellant showed the man a pistol he was carrying. The two agreed to gamble together. The appellant put the pistol back into his pocket, and left with the other man. A short time later the appellant returned.

About 9 a. m. the deceased, Rudolph Glover, entered the bar with a woman whom he introduced to Mosley and others as Mrs. Glover. Mosley knew Glover as they had worked together as gripmen for the Municipal Railway. Glover and Mrs. Glover sat down at the front of the north and south portion of the bar, near the appellant. The appellant and Glover exchanged greetings. Glover had several drinks and then bought a round of drinks for the house. The appellant did likewise. There were about six or seven other customers in ‘The Plantation’.

About 10:45 a. m. the television set in the rear of the bar was turned on to broadcast a professional football game. At this time the appellant said he wanted to straighten up his bar bill. The appellant spread his roll of money out on the bar and then wandered up and down, leaving the money on the bar. Immediately after the television broadcast began, Mosley moved to a booth in the rear in order to see better. However, when several people blocked his view, Mosley moved back to his original position at the front of the bar.

As Mosley was walking toward the front of the bar, he heard the appellant accuse Glover of having taken the money which was spread out on the bar and demanding a return of the money. Glover stated that he was not trying to take any money from the appellant, but had just picked up the money from the bar to keep it for the appellant. The appellant stated that he needed no protection as he had his own protection, and again demanded the money. Both the appellant and Glover were standing up, about three bar stools apart. Mrs. Glover was sitting behind Glover. As Mosley heard the argument he stopped behind and a little to the right of the appellant Mosley saw Glover put his hand in his pocket and pass something behind him to Mrs. Glover. The appellant then asked Mrs. Glover to put the money back on the bar and then again asked Glover to put the money back on the bar. Glover said his wife had given him the money and he was returning it to her. In the meantime, the appellant drew his pistol from his pocket, cocked it and shot once. Glover turned and fell face down on the floor.

The appellant went over to Glover, rolled him on his back and searched Glover's pockets. Mrs. Glover came over, got on her knees and put her head on Glover's chest and began to cry. She then started toward the front of the bar, but the appellant asked her for the rest of his money. When she did not give it to him, the appellant hit her and knocked her down, and said, ‘If you don't give me my money I will kill you, too.’ Appellant still had the pistol in his hand and was pointing it at Mrs. Glover. Mosley saw some money sticking out of the corner of Mrs. Glover's pocket. Mosley got the money, five one-hundred dollar bills and one fifty dollar bill, and laid it on the bar. The appellant asked the bartender to count the money and then stated that he was still about $100 short.

As soon as the shooting occurred, someone summoned the police and an ambulance. Officer Dobeman stated that when he entered the bar, he saw the deceased lying on the floor. The appellant was sitting down on a bar stool. When the officer asked him what happened, the appellant said: ‘He tried to take my money and I did it.’ When the officer asked for the gun the appellant handed the officer a Colt 38 revolver, with one discharged shell and five full cartridges. About 12:20 a. m. Inspector McDonald of the homicide detail arrived, and asked the appellant what had occurred. In the presence of another police officer, the appellant told McDonald that he had shot Glover because Glover tried to take his money and that he had given the gun to Officer Dobeman. At the time he was being questioned, it appeared to the officers that the appellant had been drinking but was in full control of his faculties as he was steady on his feet, had control of his movements, and his speech was not affected. Inspector McDonald took $1,252 from the appellant.

The appellant testified that he had been gambling and drinking all of the preceding night in San Mateo. He returned to his home in San Francisco, took a friend home from work and then went to ‘The Plantation’ about 8 a. m. He was waiting in the bar to contact his sister in order to give her some money for the care of his family. While he was waiting, he talked to another customer about gambling but did not show him a gun. He went up stairs and gambled with this man for about forty-five minutes and won about $55. After he returned to the bar, he had a brief conversation with the bartender about his bill, and then spread the money, $1,252 in currency of various denominations, out along the bar so he could arrange it according to denomination. While he was straightening out his money, Mrs. Glover came over and told him to take his money off the bar. He told her to mind her own business and she walked away. Then Glover walked over to the bar and picked up the money. He stopped Glover and asked for the return of his money. Glover tossed the money on the bar, but he could see that the $100 bills were missing. He asked the bartender to count the money. The bartender did so and found only $700. When he asked Glover for the rest of the money, he saw Glover reach in his pocket for something. He therefore drew his pistol and after Glover raised his arm and made a move towards him, shot in self-defense, because after one of his repeated requests for the money, Glover told him he would lose more than his money if he did not shut up, and because James McCoy had warned him that Glover was a belligerent person. As to his conduct after the shooting, appellant's testimony substantiated that of Mosley, except that the appellant denied threatening Mrs. Glover or showing his gun to the man with whom he gambled earlier in the evening.

Appellant's first contention is that the evidence does not support the judgment of conviction of second degree murder but only manslaughter. Murder is defined as the unlawful killing of a human being with malice aforethought. Penal Code, section 187. Manslaughter is the unlawful killing of a human being without malice. Penal Code, section 192. In this case, there is no question that the appellant shot the decedent and that the decedent died as a result of the shooting. The only issue is whether the shooting took place with sufficient malice to support a verdict of second degree murder.

Appellant argues that the physical facts established by the testimony of the autopsy surgeon, that the bullet entered the lower portion of decedent's right arm, traveled to the upper portion of the arm and then entered the chest cavity, supports appellant's testimony that the decedent raised his arm in a menacing gesture. He argues that the facts spell out sufficient provocation by the deceased to justify his shooting in self-defense. Appellant's argument, however, ignores the conflict in the evidence between his testimony and that of the other witnesses, as well as the conflicts in his own testimony. Mosley testified that he did not hear the deceased threaten the appellant or see the decedent raise his hand and take a step toward the appellant. James McCoy testified that he had never discussed the decedent with the appellant Mosley also stated that after the deceased reached into his pocket, the argument continued for several minutes before the shooting occurred. The appellant testified that when he shot Glover, he did not intend to hit him, but fired to the right of Glover, in order to frighten him. On cross-examination, the appellant stated that he had won the gun in the game in San Mateo and that he did not know the gun was loaded when he pulled the trigger.

It was for the jury to resolve the conflicts in the evidence, to determine the credibility of the witnesses, to determine whether or not the appellant had the requisite malice, and to determine whether or not sufficient provocation existed. This court cannot weigh the evidence but can only determine its sufficiency as a matter of law. People v. Thomas, 25 Cal.2d 880, 156 P.2d 7. The finding of the jury cannot be disturbed by this court so long as there is sufficient evidence to support it. People v. Sheran, 49 Cal.2d 101, 315 P.2d 5. Penal Code, section 188, defines malice as follows:

‘Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.’

Malice may also be implied from the unlawful killing in a case of second degree murder. People v. Ross, 34 Cal.App.2d 574, 93 P.2d 1019. The jury was not bound to believe the appellant's version of the shooting. Having examined the record in this case, we do not feel constrained to hold that the evidence is legally inadequate to support a verdict of murder of the second degree. Therefore, we are not authorized to reduce the judgment under Section 1181(6) of the Penal Code as requested by the appellant.

Appellant next contends that the trial court erred in refusing the following instruction requested by him.

‘You may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, if, in your judgment, the evidence supports such a verdict under my instructions.

‘To enable you to apply the foregoing instruction, if your findings of fact require you to do so, I instruct you that the offense of murder, of which the defendant is charged in Count I of the indictment, necessarily includes the crime of manslaughter.

‘If you find that the defendant was guilty of an offense included within the charge of the indictment, but entertain a reasonable doubt as to the degree of the crime which he is guilty, it is your duty to convict him only of the lesser offense.’

Appellant contends that it is reversible error to fail to instruct upon any included offense. In People v. Carmen, 36 Cal.2d 768, 228 P.2d 281, and other cases relied upon by the appellant, no manslaughter instructions were given at all. In the instant case, the trial court properly instructed the jury on the elements of the two degrees of murder, the elements of manslaughter, and the elements of justifiable homicide and self-defense. The court carefully pointed out the distinction between murder and manslaughter and instructed the jury that if they were convinced beyond a reasonable doubt that the appellant had committed murder but were in doubt as to the degree, then they must give him the benefit of the doubt, and find him guilty of the lesser degree. Appellant's argument boils down to the failure of the court to give the same instruction as to finding him guilty of murder or manslaughter, citing Penal Code, section 1097. That section provides:

‘When reasonable doubt as to degree, he can be convicted only of lowest. When it appears that the defendant has committed a public offense, and there is reasonable ground of doubt in which of two or more degrees he is guilty, he can be convicted of the lowest of such degrees only.’

On its face, the section appears to be limited in application to different degrees of the same crime. Appellant does not cite, and we have not been able to find any authority in this state, which indicates that Penal Code, section 1097 applies to anything other than different degrees of the same crime. We think the trial court gave adequate instructions.

Appellant's final contention is that the trial court erred in refusing the following instruction:

‘The fact that a witness had been convicted of a felony, if such may be a fact, may be considered by you for only one purpose, namely, in judging the credibility of that witness. The fact of such a conviction does not necessarily destroy or impair the witness's credibility, and it does not raise a presumption that he, the witness, has testified falsely. It is simply one of the circumstances that you are to take into consideration in weighing the testimony of such a witness.’

The record, however, indicates that the matter was adequately covered by the following instruction:

‘A witness may be impeached by the party against whom he is called, by contradictory evidence, or by evidence that he has been convicted of a felony. A witness may also be impeached by evidence that he has made, at other times, statements inconsistent with his present testimony.’

Nor is there any merit to appellant's argument that the prosecuting attorney's reference to appellant's past record in the argument to the jury was prejudicial. The court properly cautioned the jury immediately after the incident and gave further cautionary instructions to the jury.

We conclude that the case was fairly tried, and that no prejudicial error appears in the record before us.

Judgment and order denying motion for new trial affirmed.

I dissent from the portion of the opinion which implies that the instruction as to reasonable doubt of the degree of the crime (Pen.Code § 1097) does not apply to doubt as to whether the homicide is murder or manslaughter. The clear implication of People v. Marshall, 120 Cal. 70, 52 P. 129, and People v. Newcomer, 118 Cal. 263, 270–271, 50 P. 405, is to the contrary and it is unrealistic to hold that the defendant is not entitled to an instruction that if the jury entertains a reasonable doubt whether the defendant is guilty of murder or manslaughter they whould in such case convict him of manslaughter.

KAUFMAN, Presiding Justice.

DRAPER, J., concurs in the judgment.

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