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

The PEOPLE of the State of California, Plaintiff and Respondent, v. Luther POINDEXTER, Defendant and Appellant.*

Cr. 3344.

Decided: March 17, 1958

Kenneth C. Zwerin, San Francisco, for appellant. Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., John S. McInerny, Deputy Atty. Gen., Thomas C. Lynch, Dist. Atty. of the City & County of San Francisco, Walter H. Giubbini, Asst. Dist. Atty., San Francisco, for respondent.

The appellant was indicated for the murder of Douglas Callies and for furnishing narcotics to a minor in violation of Health & Safety Code Section 11714. The indictment was subsequently amended to include three prior felony convictions which the appellant admitted. The jury returned verdicts of guilty and found the murder to be second degree. Appellant was sentenced to San Quentin, the sentences to run consecutively. He appeals from the orders denying his motions for a new trial and the judgment asserting the insufficiency of the evidence; that he was convicted on the uncorroborated evidence of an accomplice, and that the trial court erred in its instructions to the jury.

The only accusatory evidence was in the testimony of Stanley Hoffman, to the following effect: In September, 1956, Stanley Hoffman was twenty years old. In June, 1956, he had been dishonorably discharged from the Marine Corps as a result of narcotic activity. He had been using narcotics since 1954, and only took it by injection. He had known the appellant for several months, had purchased narcotics from the appellant a few times and had been in the appellant's room in the Fillmore Hotel where he had used the appellant's ‘outfit’ [needle, syringe and spoon] to give himself an injection of heroin. Douglas Callies, the deceased and Hoffman had been friends for four or five years. They ‘used to run around with each other’ and had purchased narcotics together. In September, 1956, Douglas Callies was in the Merchant Marine; he was due to leave on a ship for Houston, Texas.

On the evening of September 27, 1956, Stanley Hoffman had made plans to go to the show with two girls, Cloreen Adams and Sherry Small, age 19 and 18. At 5:30 p.m., just as he was leaving his home on Lee Avenue to pick up the girls, Callies telephoned to ask Hoffman if he could go out with one of the girls. Hoffman agreed and then left in his father's 1956 Chevrolet and picked up Callies at his home on nearby Victoria Street. Callies asked to be driven to Brighton Street to see a friend. The friend was not at home and Callies asked to be taken to Fillmore Street as he had been out on the ship for a long time and wanted to get some heroin. Callies had two $50 dollar bills in his wallet. Hoffman drove down Fillmore Street and saw the appellant near Golden Gate Avenue. He stopped the car and the appellant got into the back seat. The following conversation took place between Hoffman and the appellant:

‘A. Well, I asked him if he knew Doug and he said he had seen him before, he thought. He said, ‘I think I have seen him before.’

‘And I said, ‘He just came back from his ship, cruise on the ship, and he wants to buy some heroin and he's down here looking for somebody to get some heroin from,’ I says, ‘So, can you get him any?’

‘And he says, ‘Yeah, I think so.’ And, he said, ‘I'll try. If he wants some heroin, I'll get him some.’

‘Q. I see. All right, then, what happened? A. Well, then we drove around the corner and we parked and Doug gave him $50 and he left the car.

‘Q. Doug gave $50 to Luther Poindexter, is that correct? A. No, he gave it to me, first, to change. He wanted me to change it. Poindexter and myself walked down. I tried to change it, but I couldn't change the $50.

‘He said, ‘Just give me the $50. Don't worry about it. Go back to the car and I'll meet you there.’'

A few minutes later, the appellant returned with $15, which he gave to Callies and told Hoffman to drive to the parking lot in back of the Safeway Store on Turk Street. This they did, and Hoffman and Callies waited in the automobile. The appellant returned in about ten to fifteen minutes and said, ‘Let's go to a gas station. Everything is all right. Let's go to a gas station.’

They stopped at a gas station at Fell and Baker Streets, and drove up to the pumps. The appellant said only two should go in at a time, so Hoffman told Callies to put $1 worth of gas in the car. Hoffman and the appellant went into the men's room, which consisted of a small room with a partition which separated the toilet from the sink. They both went behind the partition. The appellant had the ‘outfit’ and the heroin in a paper bindle. The appellant prepared the drug by cooking it in a spoon filled with water from the toilet bowl. The appellant helped Hoffman put a tourniquet around his arm, and held the tourniquet while Hoffman injected himself. Hoffman then went outside to telephone the girls that he would be late, and then waited in the car. In the meantime, Callies went into the men's room. A few minutes later, the appellant and Callies returned to the car. Callies sat in the front seat, with his chin on his chest. ‘He was * * * like he was almost unconscious. He was mumbling a little bit. He wasn't saying too much, sort of moving around and groaning and moaning.’ The defendant got in the back seat and asked to be taken back to Fillmore Street.

After dropping the appellant across the street from his hotel, Hoffman drove to Westwood Drive in the Ingleside District, to pick up the two girls who sat in the back seat. Hoffman then drove to Daly City to see a friend for a few minutes while the others remained in the car. The girls wanted to sit in the front seat, so some one helped Hoffman move Callies to the back seat. Callies ‘was able to stand on his feet * * * but he was sort of fumbling around.’ Hoffman then drove to the El Rey Theater on Fairfield Street and parked on one of the streets along side the theater. It was about 7:30 p.m. The girls got out, and Hoffman testified as follows as to Callies:

‘A. Well, I pushed him and asked him if he wanted to go to the show and—(mumbling)—‘No.’.

“Well, I'll leave you here.' I rolled down the window, locked all the doors and took his wallet, in case someone would try to roll him, think he was a drunk, try to roll him in the car, and I gave the girl his wallet to put in her purse and took them to the show.

‘Q. And you left him sitting in the back seat of the car? A. Yes.

‘Q. Was he on the sidewalk side or street side? A. He was on the sidewalk side.

‘Q. He was near the window, which you had opened? A. Yes, sir.’

Hoffman and the girls then left for the theater. They stayed for two entire features and did not know what time it was when they returned to the automobile. As they got to the car, Hoffman could not see Callies.

‘A. Well, when I first was walking up the street, I thought he had left the car, couldn't see him. I told the girls he probably left. And as I got closer, I could see him leaning over toward the window, so I went up there and I said, ‘He must be asleep’, and I reached in and I slapped him and he didn't move, so I slapped him again and he still didn't move. I felt his face and his face was cold and I got scared and felt his pulse and he had no pulse and I told the girls he was dead.'

Hoffman further testified as follows:

‘A. Well, I was going to go down and phone the Police and I walked all the way down to the corner and by the time I got down there, the girls, they said, no, and they started crying. And one of the girls just got out of the hospital. She'd had a baby and her husband got put in jail for something. I don't know what it was, and she said she had enough publicity, she said, and she didn't want to get in any more trouble and her parents were made at her. She started crying and they were afraid, so this one girl kept yelling at me to take her home. The other one's crying. I didn't know—and went back to the car and I took the youngest girl home.

‘Q. I see. And you took her to her home and still had with you then one other girl, is that correct? A. That is right.

‘Q. Which girl was that? A. That was Mrs. Adams, Cloreen Adams.

‘Q. Mrs. Adams. All right. Then, when you and Mrs. Adams, Cloreen Adams, were together, where did you go then? A. Well, we drove over to the churchyard. She said that we better let him off at a churchyard. She said that would be the best. So I took him—I set him out of the car and oaid (sic) on the ground of the church.

‘Q. That was out by St. Thomas More's Church, out by Junipero Serra Boulevard? A. Yes, sir.’

Then Hoffman took Mrs. Adams home and returned to his own home, without contacting the police. He was arrested about 11:00 a. m. on September 28th.

On cross-examination Hoffman denied that he or Callies and given the defendant any money to pay rent or that he had asked the defendant to use his ‘outfit’ that evening in return for a little ‘stuff’.

A number of experts employed by the San Francisco Coroner testified that Douglas Callies died due to narcotics poisoning. An amount of morphine sufficient to cause death was found. There was also an amount of alcohol equivalent to 3 1/2 bottles of beer or shots of whiskey, which was ingested a relatively short time before death. The amount of alcohol, however, was not significant enough to contribute to death. No needle marks were found on the body by the autopsy surgeon, who indicated, however, that this was not uncommon and that it was very easy to inject material so that the site of the injection would be completely invisible. The autopsy surgeon estimated that at the time of the autopsy which took place at 11:00 a. m. on September 28th, the deceased had been dead over four to six hours but less than two or three days. None of the experts ascertained the time of death or the time when the narcotic entered the body.

The appellant took the stand in his own behalf and testified that he had known Hoffman for about three months and had seen him several times. He denied selling narcotics to Hoffman or using narcotics with Hoffman except on September 27th. The appellant stated that Hoffman had once asked him to sell narcotics which a friend of Hoffman's was to bring back from overseas, but that he had refused. He stated that Hoffman had borrowed his ‘outfit’ on one occasion and had come to his hotel to ask to use his room to take an injection on another occasion, and had gotten into trouble with appellant's landlord.

As to the events of September 27, 1956, the appellant testified he was walking toward Fillmore on Ellis Street and saw Hoffman drive by, then back-up and stop. The following conversation took place:

‘I said, ‘Hello, Stan, how are you?’ and I walks over to the car, and he says, ‘Say, how about going up to your room, using your outfit?’

‘And I says, ‘Have you all got some stuff?’, and he says, ‘Yes, we have a whole spoon of stuff.’

‘I says, ‘Well, Stan, you know you and the landlord had some kind of ruckus down there. I don't think he would let you up in the hotel. However, if you give me some of the stuff,’ I says, ‘I'll let you use my outfit.’ And, I says, ‘In the meantime, ‘I'll see if the landlord is at the hotel.’

‘So, he said, ‘Well, get in the car.’ So I gets in the car and I—proceeds to my hotel. So I gets out of the car and goes into the hotel and it so happens that the manager of the hotel is on duty so I goes up in the hotel and I had kind of a little—it was a little vacant room that they use for a fire ascape purpose and I used to take my hypodermic paraphernalis and lay it outside this little window on the ledge. So, I got it and I went on back downstairs and got in the car. So, I told them, when I approached the car, I says, ‘Stan’, I says, ‘My landlord is on’, and I says, ‘I can't get you up in the hotel.’ And he said, ‘Well, get in the car. We'll go to some station or some place.’ So we gets in his car and he proceeds to drive to Fell and Baker and we gets to the station. He pulls up in the gas station and all three of us starts to get out of the car. By the time he stopped, Callies and I had got out, so he got out on the driver's side—oh, Callies says, ‘Well, pull up in the pump——” * * *

‘A. (continuing) We approach—when we got to the station, pulled up to—just drive right into the pumps and stopped. We stopped somewhere midway between the lavatory and the pumps and he and myself and Douglas, all three of us got out of the car. Although Douglas and I got out of the car first. And he gets out of the car and comes around to the side where we were and when the three of us start into the lavatory—so, he tells Doug, ‘Doug, you get back in the car and pull the car into the pumps and order a dollar's worth of gas.’ And he and I goes in the lavatory together.

‘The Court: Whom do you mean by ‘He’?

‘The Witness: Mr. Hoffman.’

The appellant testified that he assembled the syringe while Hoffman prepared the drug by mixing it in a wine bottle top with water from the toilet bowl. Hoffman then asked him to stand by the door which he did, while Hoffman remained on the partition side of the lavatory. He did not see Hoffman ‘take a fix’. The appellant testified further:

‘Q. Then did he come out? A. Yes, sir, he came out and when he came out I start to go in the partition side and take a fix, myself, and he says, ‘Wait, let me call Doug and let him take a fix,’ and says, ‘In that way there be one of us at the car at all times.’ So, he goes—immediately goes out and he calls Doug. Doug comes to the lavatory and I watch the door for him. Now, if he took a fix, I don't know, because I did not see him. I couldn't swear he would—that he did.

‘Q. All right. Then he came out, is that right? A. Yes, sir.

‘Q. Then, you went in? A. Yes, sir.

‘Q. I see. Now, when this narcotic was prepared, did each of you prepare an amount to use, or was an amount prepared and each of you used some of it? A. There was over half of it put in the spoon for all three of us.

‘Q. So that half of the spoon was used for the three of you? A. Yes, sir.

‘Q. Then, what happened to the other half? A. Mr. Hoffman taken it with him and when he went out of the lavatory he taken the spoon, what was left of the narcotics with him to tell Douglas to come back and get his fix, I suppose, and when Douglas and I went out of the lavatory, we got in the car and Mr. Hoffman handed the stuff to Douglas because, he said, ‘Here, Doug, I better let you hold your own stuff,’ you know.'

The appellant then stated that he asked to be dropped off near his hotel and that Hoffman stopped on Golden Gate Avenue between Steiner and Fillmore. As he left the car, he asked Callies, ‘for a couple of dollars to pay my rent.’ Callies had no small bills, so Hoffman handed him $2 which he immediately used to pay his rent.

The prosecution then offered the testimony of a policewoman who accompanied Hoffman to the defendant's room on the afternoon of October 1, 1956, before the appellant's arrest. She stated that the defendant told Hoffman in her presence that he had sold a ‘$35 paper’ to Callies. The defendant denied making this statement and stated that he did not know what the expression meant and had never heard it before, although he admitted using narcotics for about 14 years, and testified that Hoffman had come to his room with a girl named Mae and asked him to get some ‘stuff’, but that he refused.

First, as to appellant's contention that the evidence does not support the verdict. Appellant incorrectly relies on People v. Staples, 149 Cal. 405, 86 P. 886 and People v. Lamson, 1 Cal.2d 648, 36 P.2d 361, to argue that there is a failure of proof as a matter of law when every circumstance relied upon as incriminating is equally compatible with the presumption of innocence. The Lamson and Staples cases were rejected in People v. Newland, 15 Cal.2d 678, 104 P.2d 778, and the rule recently restated in People v. Daugherty, 40 Cal.2d 876, at page 885, 256 P.2d 911, at page 916 as follows: ‘The test on appeal is whether there is substantial evidence to support the conclusions of the trier of fact * * * (Citing cases)’ The court quoting from the Newland case continues: ‘The rule applicable where there is evidence, circumstantial or otherwise, that a crime has been committed and that the defendant was the perpetrator thereof, has been many times reiterated by the reviewing courts of this state as follows: 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. The determination of a charge in a criminal case involves proof of two distinct propositions: First, that the offense charged was committed; and, second, that it was perpetrated by the person or persons accused thereof. * * * We must assume in favor of the verdict the existence of every fact which the jury could have reasonably deduced from the evidence, and then determine whether such facts are sufficient to support the verdict.’ If the circumstances reasonably justify the verdict of the jury, the opinion of the reviewing court that those circumstances might also reasonably be reconciled with the innocence of the defendant will not warrant interference with the determination of the jury.'

Applying the above test, first to the charge of furnishing narcotics to a minor, we think that there is no merit in the appellant's contention. The testimony of Hoffman and the appellant conflicted on the question of who supplied the heroin, but the jury chose to believe Hoffman's version of the facts, rather than the appellants. As to the sufficiency of the evidence to support the charge of murder in the second degree, we also think there is no merit in this contention. Murder in the second degree is any killing which occurs in the perpetration of a felony other than arson, rape, burglary, robbery, mayhem or a violation of Penal Code Section 288. People v. Powell, 34 Cal.2d 196, 208 P.2d 974. The furnishing, selling or administering of narcotics to a minor is a felony. (Health & Safety Code Section 11714). Here there was uncontroverted testimony that Douglas Callies died of narcotics poisoning and that taking a shot of heroin was an act dangerous to human life. Any killing which occurs in the commission of an unlawful act dangerous to human life constitutes murder in the second degree. People v. Copley, 32 Cal.App.2d 74, 89 P.2d 160.

Appellant argues that at best the evidence supports only a verdict of manslaughter, citing People v. Hopkins, 101 Cal.App.2d 704, 226 P.2d 74. In that case, as in this one, the decedent died as the result of narcotics poisoning. Hopkins held the tourniquet while the decedent administered an injection to himself. In reversing the order dismissing the indictment for want of probable cause, this court held that Hopkins was a principal within Section 31 of the Penal Code. Thus, if the jury here believed Hoffman's testimony that the appellant held the tourniquet while Hoffman took his injection, they could have reasonably inferred that the appellant did the same thing when Callies took the fatal injection. This court further pointed out in the Hopkins case at page 707 of 101 Cal.App.2d at page 76 of 226 P.2d: ‘If respondent had not touched decedent's arm or otherwise physically aided him, but had merely stood by and kept a lookout for passers-by he could still be charged as a principal under § 31, Penal Code, [citing cases]’. Thus, if the jury here believed appellant's statement that Callies had supplied the narcotic and that he only watched the door while Callies was behind the partition, the appellant would be equally a principal in the killing of Callies. The manslaughter charge was proper in the Hopkins case as there the defendant assisted the decedent in an unlawful act not amounting to a felony. In the instant case, in view of the appellant's prior convictions which were admitted, any violation of the narcotics laws is punishable as a felony. Health and Safety Code §§ 11712, 11714. Furthermore, in the instant case, the appellant assisted the decedent minor in an unlawful act dangerous to human life.

Second as to appellant's contention that the evidence is insufficient to support the verdict as he was convicted on the uncorroborated evidence of an accomplice, Penal Code Section 1111 provides:

‘A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.

‘An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.’

It is not questioned here that Stanley Hoffman participated with the appellant in the illegal transaction. The mere fact that he is punishable for such cooperation does not make him an accomplice. The question is whether under Sections 31 and 971 of the Penal Code, Hoffman is subject to prosecution under Health & Safety Code, section 11714, which the appellant is accused of violating, or whether Stanley Hoffman's acts constitute a separate and distinct offense. People v. Clapp, 24 Cal.2d 835, 151 P.2d 237. Similarity of offenses is not the same as the identity of offenses within the meaning of Penal Code, section 1111. People v. De Paula, 43 Cal.2d 643, 276 P.2d 600. Respondent contends that Hoffman was not an accomplice as a matter of law as a minor is regarded as a victim, People v. De Paula, supra, 43 Cal.2d 643, 276 P.2d 600, even if he is guilty of the same charge as the defendant, as to other minors, People v. Drake, 151 Cal.App.2d 28, 310 P.2d 997. A minor can be convicted of furnishing narcotics to another minor. People v. Freytas, Cal.App., 321 P.2d 782. The reason for the ruling in the De Paula case, where the defendant was accused of using the prosecuting witness, a minor, in the transportation of narcotics, was stated as follows at pages 647 and 648 of 43 Cal.2d, at page 603 of 276 P.2d:

‘Since the minor involved is the victim and the offense denounced by section 11714 of the Health and Safety Code is the harmful act to that victim with the resulting harm to society in general, it necessarily follows that in a prosecution under that section the minor involved cannot be held a principal in the sense of being subject to prosecution for the same identical offense, within the meaning of section 1111 of the Penal Code. See People v. Doetschman, 69 Cal.App.2d 486, 489–490, 159 P.2d 418. The same principle applies as in statutory rape cases, in which it has been consistently held that the minor victim is not an accomplice. People v. Murray, 91 Cal.App.2d 253, 256, 204 P.2d 624.’

In the instant case, however, the appellant was not charged with furnishing narcotics to the prosecuting witness, but to a third party who died therefrom. In all of the above cited cases, the defendants were charged with narcotic crimes in relation to the minor prosecuting witnesses. In the instant case, Stanley Hoffman would be an accomplice if he could be charged with the identical offense as the appellant in relation to the identical victim. There is the further distinction that the crimes charged in the above cases were simply a violation of Health & Safety Code, section 11714, not an additional separate and distinct offense as in this case. While we are in full agreement with the policy of protecting minors, we do not think the rule of the De Paula, case, supra, was meant to apply to a case like the instant one.

In the instant case, Hoffman and the decedent jointly conspired to purchase narcotics, and Hoffman aided and abetted the purchase and administration of the narcotics. Death resulted as a result of the unlawful purchase and use of the narcotics. Under Hoffman's own testimony he participated in an unlawful act from which death resulted, so that Hoffman could also be charged with second degree murder. Therefore, he was an accomplice as a matter of law and the jury should have been so instructed.

Whether or not this error was prejudicial so as to deny the appellant due process, and require reversal as he contends, is the question. The record indicates that no specific instructions were requested by any of the parties. It has also been held that a defendant in a criminal prosecution cannot complain on appeal that the court failed to give an instruction where such instruction was not requested. People v. Owens, 79 Cal.App.2d 290, 179 P.2d 401.

However, as pointed out in People v. Hughes, 107 Cal.App.2d 487, at pages 492, 493, 237 P.2d 64, at page 67: ‘It is the law that in a criminal case that the jury should be instructed on the general principles of law which apply to the case, and even though not requested by the parties, the court of its own motion, should give such instructions.’ In People v. Warren, 16 Cal.2d 103, at page 119, 104 P.2d 1024, at page 1032, the court referring to the failure of the trial court to instruct the jury in accordance with Penal Code, section 1111, said: ‘that the failure of the trial court to so instruct the jury under such circumstances, with or without a specific request for such instructions, constitutes error; but that in the event of such failure in any case, the entire record must be considered in determining whether such error constitutes prejudicial error requiring a reversal of the judgment of conviction.’ In People v. Crain, 102 Cal.App.2d 566, 228 P.2d 307, it was held that it was the duty of the court to instruct the jury with respect to accomplices and their testimony, without any request from the defendant. In People v. Ahern, 113 Cal.App.2d 746, 249 P.2d 63, this court held it to be prejudicial error to refuse the accomplice instructions where there is a disputed question of fact as to whether a witness was an accomplice and where the appellate court cannot say with assurance that the verdict would have been the same had the instructions been given.

Respondent contends, of course, that the verdict would have been the same, as the appellant admitted standing guard while Callies injected himself. The record, however reveals that the appellant admitted standing guard while Hoffman injected himself. Nor do we think that the testimony of the policewoman as to the appellant's out of court admission that he sold ‘a $35 paper’ was sufficient by itself to establish the guilt of the appellant.

After consideration of the entire record, we are of the view that the errors noted above have resulted in a miscarriage of justice.

In view of the foregoing the judgment and orders denying motions for new trial must be reversed.

Judgment and orders denying Motions for New Trial reversed.

KAUFMAN, Presiding Justice.

DOOLING and DRAPER, JJ., concur.

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