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District Court of Appeal, Second District, Division 3, California.

The PEOPLE, Plaintiff and Respondent, v. Claude Leonard JETER and Charles Joshua, Defendants and Appellants.

Cr. 7977.

Decided: May 29, 1963

Earl Klein, Beverly Hills, for appellats. Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Gilbert F. Nelson, Deputy Atty. Gen., for respondents.

Claude Leonard Jeter, Charles Joshua, James T. Evans and Mack Burton were charged in Counts I and II with armed robbery, in violation of section 211 of the Penal Code, and the murder of Zethery K. Marshall, in violation of section 187 of the Penal Code. In addition, two other offenses of robbery were charged against Jeter and Joshua in Counts III and IV. Pursuant to section 1099 of the Penal Code the cause against Evans was dismissed and he became a witness for the People. The jury was unable to reach a verdict and the case was retried, the defendants being represented by counsel throughout the proceedings. Defendant Burton was acquitted on all counts. Jeter and Joshua were found not guilty as to Counts III and IV but guilty of murder in the first degree and robbery. Their motions for new trial and probation having been denied, defendants Jeter and Joshua were sentenced to the state prison. They appeal.

The issues were sharply drawn. The People's witnesses testified that Jeter and Joshua came into a room where several men were engaged in gambling and robbed them; Jeter exchanged shots with Marshall, the deceased, and shot him through the heart. Jeter and Joshua testified there was no robbery. Jeter testified he was gambling, was attacked by Marshall and shot in self-defense. The question was whether the shooting occurred in the manner described by the People's witnesses or as described by Jeter. The jury was required to find that it occurred in one way or the other. There was no evidence whatever that would have justified a finding that it occurred in some other manner.

The sole question presented to this court on appeal is whether it was error for the trial court to refuse to give defendants' requested instructions on second degree murder and manslaughter. There is no claim that, other than those in question, the instructions given by the trial court were not full and complete on the issues in the case. While it is true that the court should instruct on every theory on which there is any evidence deserving of consideration (Stevenson v. United States, 162 U.S. 313, 16 S.Ct. 839, 40 L.Ed 980; People v. Burns, 88 Cal.App.2d 867, 200 P.2d 134), it is the law that the giving of an instruction which, though stating a correct abstract principle of law, has no application to the facts or issues raised by the evidence in the case is error, since it confuses and misleads the jury by injecting into the case matters that under the evidence are not involved. (People v. Roe, 189 Cal. 548, 209 P. 560; People v. Eggers, 30 Cal.2d 676, 185 P.2d 1; People v. Jackson, 42 Cal.2d 540, 268 P.2d 6; People v. Silver, 16 Cal.2d 714, 108 P.2d 4.) The evidence introduced by the prosecution disclosed the following facts. On November 24, 1960, a group of about nine men were gathered in an apartment used for the purpose of gambling. About five of the men were playing a card game. At about 3:30 p. m. appellants entered through the kitchen door. Jeter had an automatic pistol and Joshua carried a large knife. Jeter said: ‘This is a strickup. Everybody lie on the floor.’ The decedent, Marshall, who was one of the card players, lay down, but jumped up from the floor and took out a gun. A number of shots were heard, followed by a short scuffle between the decedent and Jeter. Jeter hit Marshall over the head with a gun. One of the card players, witness Thomas, took the gun away from Jeter and pointed it toward Joshua, who was coming at him with a knife. Jeter picked up the decedent's gun and the appellants ran out of the apartment into a waiting car. The decedent walked out of the apartment, collapsed in the street and died. The deputy county medical examiner testified that the cause of death was a gunshot wound through the heart.

Evans had driven Jeter, Joshua and Burton to the apartment. He testified that, previous to the date in question, on several occasions Joshua had suggested a holdup of the apartment in question, known to be a ‘bookie joint.’ It was arranged with defendant Burton, who could gain entry into the premises, that he should enter the apartment first, on the date of the incident, thereby giving access to Jeter and Joshua. On November 24, 1960, the four drove to the location of the apartment. Burton remarked ‘Give me five minutes to go in and open the door.’ Joshua and Jeter waited a few minutes and then followed Burton. Evans stated they were gone for several munites and then came running back to the car. Jeter was carrying a gun other than the one he carried into the apartment. He stated to Evans that he had taken it from the victim. Three witnesses, who were in the apartment, testified that both appellants took money from their wallets before the shooting occurred.

The law, of course, is well settled that a homicide committed in the perpetration of robbery or in an attempt to perpetrate robbery is murder in the first degree. (Pen.Code § 189.) In such cases the law conclusively presumes premeditation. (People v. Petro, 13 Cal.App.2d 245, 56 P.2d 984.) In view of the evidence that Marshall was murdered during the perpetration of the robbery, if the jury believed defendants committed the crime, the only verdict they could possibly have returned was one of guilty of first degree murder. (People v. Perkins, 8 Cal.2d 502, 66 P.2d 631.) Appellants, testifying in their own behalf, disclaimed the robbery. Jeter testified that Evans drove him to the apartment on the day in question in order that he might return a gun borrowed from a man named Dennis.1 Dennis was not inside the apartment then so Jeter engaged in a dice game. The decedent, Marshall, was one of the players. He was drinking; Jeter claimed that he was using crooked dice and asked for his money back. Marshall grabbed him and Jeter struck him. Marshall then pulled a gun and fired at him. Jeter returned the fire and ran. Joshua testified that he had arrived at the apartment independently and ahead of Jeter. He heard an argument and shots but did not see who did the shooting. When asked why he fired at the decedent Jeter stated, ‘Well, he was trying to kill me so I had to defend myself.’ The jury was fully instructed on the plea of self-defense. Appellants offered no other justification for the shooting of the decedent. When the jury determined that Jeter's account of the shooting was false there was no alternative to a finding that the homicide was committed in the course of a robbery. Any other theory would have been without support in the evidence, or reasonable inferences therefrom, and inexcusable speculation. An instruction on manslaughter or second degree murder would have suggested to the jury that there was evidence in the case which would warrant a verdict of guilt of one or the other of these lesser offenses. It would have been serious error to give the jury to understand that a verdict could be based upon a state of facts contrary to all the evidence. In People v. Turville, 51 Cal.2d 620, 632, 335 P.2d 678, 685, after the only defendant who testified therein had denied the alleged robbery and murder, the trial court properly instructed the jury as follows: ‘Although there are two degrees of murder, the evidence in this case is such that either the defendants are innocent of the charge of murder or one or both of them is guilty of murder in the first degree.’ We find no error, in the instant case, in the court's refusal to give the requested instructions.

The judgments and orders are affirmed.


1.  Dennis was not further identified nor could he be located.

SHINN, Presiding Justice.

FORD and FILES, JJ., concur.

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