PEOPLE v. SILVER (1940)

Appellant Gail Bradford Silver was charged in an information with the crime of murder, that on the 25th day of November, 1939, in San Bernardino county, he murdered one Lee Hartman. After a plea of not guilty and a trial by a jury, he was convicted of the included offense of manslaughter. A new trial was denied as was appellant's purported application for probation.

There is little controversy as to the facts. They may be thus summarized: Appellant, aged 22, was a son-in-law of a Mrs. Shook who was the owner of the Temescal Clay Company claim or mining property located near Victorville. The so-called mine consisted of two open cuts in the side of a mountain from which silica was taken. Above the open cuts and adjacent thereto and upon the Temescal Clay Company property was situated, among other things, a gasoline storage tank of 640 gallons capacity, with an unenclosed gasoline pump located out in the open near a road, quite a distance from an enclosed blacksmith shop and oil house. The gasoline stored therein was for use in and about the operation of the claim. Prior to the night of November 24, 1939, gasoline had been stolen from the tank. On the 24th and 25th days of November, 1939, the appellant was employed and stationed as a watchman on that property, having been sent there for that purpose. On the night of November 25, 1939, at about 6 p.m., appellant placed himself at a point near the peak of a hill at an approximate elevation of 84 feet above the point where the gasoline pump was located and a distance of approximately 288 feet in a direct line from the pump. Shortly after dark, in the moonlight, he observed an automobile being driven to and about the property without lights. He picked up a 30–30 Winchester rifle and then saw the outline of the car backed up to the gasoline pump. He testified that after waiting a short time he called out “What do you want?” and received no answer; that he fired a shot to scare away the thieves who were stealing gasoline out of the tank; that he waited a few moments and called again and then he fired two more shots; that after firing the second shot he heard what he thought sounded like rock falling, as though someone was coming up the hill to him, and that he then fired another shot and ran back over the hill approximately a mile and a quarter to a trailer house and endeavored unsuccessfully to have a watchman go back and assist him at the scene where the men were stealing the gasoline; that he then got in his car, went to Victorville, called the office of the deputy sheriff at Barstow, and went to the home of Joseph Simonic, after which a doctor administered him morphine to quiet his nerves. After midnight he was taken to the scene of the shooting by the deputy sheriff and others and it was then that he claimed he first learned that Lee Hartman, the deceased, had been shot and that he, together with his two younger brothers, Walter and Ernest, were the ones who had driven to the mining property for the purpose of stealing gasoline. The evidence indicates that the three brothers had been there on other occasions for the same purpose.

Their testimony, in substance, shows that on the night in question, they arrived on the property in their automobile, turned out the lights, and backed up the hill to the gasoline pump. All three boys got out of the car. Although the pump was locked, by some manipulation they were able to fill the tank of the car. While Lee and Ernest were draining the hose a shot was fired from the hill. Lee was struck by the bullet through the chest, fell backwards and apparently died immediately. The boys all claim that prior to the first shot no words of warning were given by appellant. Ernest then started up the hill toward appellant and shouted “Stop shooting, Mister”. He claims that he then heard a voice that said “Get the Hell out of there or I will shoot you” or “I will fill you all full of lead”. A second shot followed, while Ernest was trying to put Lee in the back seat of the car. He testified that he again called to appellant and said “Don't shoot any more * one of my brothers is shot”. After the second shot he discovered that his other brother, Walter, had been shot through the leg. Before they left for their home a third shot was fired over the car. Lee was taken to the mortuary and Walter received medical aid at the hospital. The charge of murder followed.

Appellant now claims (1) that the verdict is contrary to the law and the evidence; (2) that the court misdirected the jury in matters of law; (3) that the court erred in denying appellant's motion for new trial; and (4) that the court erred in denying a hearing on an application of appellant for probation.

It is argued that under the undisputed evidence the Hartmans were in the act of committing theft on mining property and that therefore the entry upon the mine or any underground portion thereof with the intent to commit grand or petty theft was burglary, a felony (sec. 459, Pen.Code), quoting section 197 of the Penal Code that “Homicide is * justifiable * 1. When resisting any attempt to murder any person, or to commit a felony * 2. When committed in defense of habitation, property, or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony *.” (Appellant's italics.) It is now claimed that under all the facts as above set forth appellant was justified in the commission of the homicide with which he was accused, and in view of the record as set forth it was necessary to a proper defense of appellant that the jury be properly instructed as to the law based on the evidence adduced. Appellant offered certain instructions bearing on the question which were refused. They are as follows:

“You are instructed that every person who enters any mine, or any underground portion thereof, with intent to commit grand or petit larceny, or any felony, is guilty of burglary, a felony.” And

“You are instructed that the California legal definition of a mine includes all mineral-bearing properties of whatever kind or character, whether underground, quarry, pit, well, spring or other source from which any mineral substance may be obtained;

“And you are further instructed that the California legal definition of ‘mineral’ includes all mineral products both metallic and non-metallic, solid, liquid or gaseous, and mineral waters of whatever kind or character.” Sec. 2200, Code of Public Resources, St.1939, p. 1072; Webster's Dictionary; Smith v. Cooley, 65 Cal. 46, 2 P. 880. And

“You are instructed that sluiceboxes, flumes, hose, pipe, railway tracks, cars, blacksmith-shops, mills, and all other machinery or tools used in working or developing a mine are to be deemed affixed to the mine.” Citing Civ.Code, sec. 661, now sec. 2601, Public Resources Code, St.1939, p. 1108.

The trial court read section 197 of the Penal Code on the question of justifiable homicide, and section 195 of the Penal Code on excusable homicide, and instructed the jury in the language of section 459 of the Penal Code defining burglary and then added: “In this connection you are instructed that the word ‘mine’ in a specific sense means a subterranean cavity or passage, especially a pit or excavation in the earth, from which metallic ores or other mineral substances are taken by digging'.”

This was followed by another instruction: “* that one charged with homicide cannot avail himself of the defense that the homicide he stands charged with was justifiable because it was committed in defense of property in his charge or care unless it be shown that before the fatal shot was fired by the defendant it must have appeared to him, as a reasonable person, that the deceased manifestly intended or endeavored by violence or surprise to commit a felony.”

It is appellant's claim that it is evident from the wording of section 459 of the Penal Code that the legislature intended a mine to be not only the underground portion thereof, but also that portion of the mine above ground and the equipment thereon used in the operation of the mining plant, and that in reading the given instruction as a whole, and particularly by joining the two distinct instructions or definitions with the words “in this connection”, there was but one conclusion that the jury could reach, and “that was that the court instructed them that a mine is a hole in the ground from which mineral is dug, and that a person entering a mine is guilty of burglary, but that it did not apply in the instant case because from all of the testimony the decedent and his two brothers did not enter a hole in the ground with the intent to commit grand or petit larceny”. Appellant claims that the legislature did not intend the use of the word “mine”, in the definition of burglary, in a specific sense, and that the term “mine” included the whole claim or body of mining property, citing Tredinnick v. Red Cloud, etc., Mining Co., 72 Cal. 78, 81, 13 P. 152; 40 Cor.Jur., pp. 733–735 (par. 3, sub-par. 3); and (par. 8, sub-par. 6).

Respondent in reply maintains that the property in question was a quarry and not a mine, citing Marvel v. Merritt, 116 U.S. 11, 6 S.Ct. 207, 29 L.Ed. 550; J.M. Guffey Petroleum Co. v. Murrel, 127 La. 466, 53 So. 705; Hoysradt v. Delaware, L. & W.R. Co., C.C., 151 F. 321, 331; Board of Commissioners of Greene County v. Lattas Creek Coal Co., 179 Ind. 212, 100 N.E. 561; Id., Ind.App., 96 N.E. 633, 637; and that even if it could be considered a mine within the meaning of the statute, there was no structure whatever on the premises that the Hartman brothers sought or attempted to break into or enter. It is pointed out that the gasoline pump itself was entirely out in the open and was not covered with any roof or sides.

Respondent further points out that section 459 of the Penal Code defining burglary, was amended in 1913 (stats. 1913, p. 228), by adding “mine, or any underground portion thereof” to the structures which were subject to burglary. It is contended that driving upon a naked claim (upon which no structures have been erected, although entitled to be called a mine) with intent to commit theft, could not under any theory of the law be held to be burglary; that the statute, as amended, really contemplates that a person must enter a “house * mine, or any underground portion thereof” before he could be guilty of burglary. From the evidence it does not appear that the claim here involved was in any manner fenced or marked to designate its boundaries. It appears to comprise several acres of rough and barren land. There is no evidence of underground tunnels existing on the claim, but at most it can only be said that there is a pit or excavation in the earth from which mineral substances are taken by digging. Regardless of the nature of the claim, it is quite apparent that the three brothers did not enter any portion of the pit or excavation nor the underground portion of a mine, nor did they enter any structure or enclosure constituting any part of the mine or attached to it. It seems to us that it is quite obvious that section 459 of the Penal Code does not include under the term “mine, or any underground portion thereof”, all of the open, unworked property within the exterior boundaries of the mining claim. This is entirely in accordance not only with the established and historical conception of burglary but also with the elementary rules of statutory construction and according to the doctrine of ejusdem generis. A general and pertinent discussion of this doctrine is to be found in 23 Cal.Juris., page 755, section 130.

In People v. Buyle, 22 Cal.App.2d 143, 147, 70 P.2d 955, it was held that a powder magazine dug out of a hill with walls on the sides and a roof of natural earth and a door constituted such a structure as to be a “building” within the meaning of section 459.

In People v. Gibbons, 206 Cal. 112, 273 P. 32, the Supreme Court held that in a prosecution for burglary the crime was not established where the evidence showed that the stolen property was taken from a bin having three sides and a roof. The structure described was not of such a nature as to permit the crime of burglary being committed therein. See, also, People v. Coffee, 52 Cal.App. 118, 198 P. 213; People v. Stickman, 34 Cal. 242; People v. Franco, 79 Cal.App. 682, 250 P. 698.

In the Gibbons case the court said: “We are cited to no case, and know of none, where the element of the definition of burglary which requires a breaking into some kind of structure has been held to be nonessential. The common law, of course, required that the building be a human habitation. This is not necessary under our statutes, but as said in People v. Coffee, supra, the structure need only be one having four sides and a roof.”

We are convinced from the undisputed facts in this case that the jury could not have here found the three brothers guilty of burglary under the definition of that offense set forth in section 459 of the Penal Code. While the instruction given defining a mine may not have been broad enough to fully cover the definition of a mine as set forth in that section, we are convinced that the legislature did not intend that the mere driving or going upon a mining claim, as used in a general sense (i.e., the exterior boundaries thereof) with the intent to commit petit theft thereon, constitutes the offense of burglary. We therefore conclude that the giving of the People's instruction complained of was harmless and that the proffered instructions of appellant defining a mine were too broad and not applicable to the undisputed facts. Therefore the failure to give them was not error. People v. Davis, 135 Cal. 162, 67 P. 59. The stealing of the gasoline as here related did not constitute an entry of “any * mine, or any underground portion thereof” within the meaning of section 459 of the Penal Code.

Appellant next objects to the court giving an instruction to the jury in reference to self-defense. The appellant asserts that there was no evidence whatsoever in the record with reference to shooting in self defense and claims that it was therefore error to give such an instruction, citing People v. Savinovich, 59 Cal.App. 240, 210 P. 526, and People v. Maybelle Roe, 189 Cal. 548, 209 P. 560. It appears from the transcript that the appellant was particularly frightened at the time he fired the shots, at least when he fired the third shot. The appellant himself testified that “as I remember it was between the second and third shots I heard a scraping of, I don't know what it was, but it sounded like rock, as though somebody was coming up the hill to me, and I was frightened and I got up and fired and ran back over the hill”. It is quite obvious from the appellant's testimony that he believed at the time that he was in imminent danger and in order to protect himself he fired the shot. We are not here concerned with whether or not from all the facts and circumstances it appears to us that the appellant was unjustly afraid. We are concerned only with whether or not there is any evidence in the record, however meager, which might tend to show that the appellant fired the shot under circumstances which a reasonable person might have thought reasonable grounds to apprehend a design to do some great bodily injury, under the law of self-defense, as set forth in sections 197 and 198 of the Penal Code. The instruction was proper and pertinent. The cases cited by the appellant are not therefore in point.

Appellant next objects to the refusal of the trial court to permit the appellant to introduce into evidence a conversation he had with a deputy sheriff before going up on the hill to guard the property. The appellant made an offer of proof which was to the effect that on the morning of November 25, 1939, he sought the advice of a deputy sheriff as to what his rights were as a watchman on the property of the mine, as bearing on the intent of the appellant. He cites in support of his contention the case of People v. Fong Sing, 38 Cal.App. 253, 258, 175 P. 911, regarding res gestae. Whether or not appellant acted upon the advice as given by the deputy sheriff and whether or not such advice was proper is entirely beside the point. We are not here concerned, at this stage of the proceeding, with the question of whether or not the appellant actually intended to take a human life. The jury, by its verdict of manslaughter, determined that the appellant did not with malice aforethought intend to take a human life. Appellant should not now complain.

Appellant finally contends that the trial court erred in refusing to permit him to file an application for probation, and relies upon the case of People v. Lovelace, 97 Cal.App. 228, 275 P. 489. In the Lovelace case the defendant had entered a plea of guilty to involuntary manslaughter. In the instant case the appellant had been tried before a jury in a case that required four days to try and in which the trial court was familiar with all the facts. It is entirely true that at the time counsel for the appellant stated to the court that he expected “to make an application for probation”, the court stated that among other things, section 1203 of the Penal Code provided that probation should not be granted to a defendant who at the time of the perpetration of a crime was armed with a deadly weapon. Without any citation of authorities, and without offering in any way to file an application for probation or to apply, orally or in writing, to file an application for probation, counsel for appellant stated, “we submit the matter to the court”. The court thereupon stated that the application for probation would be denied. The court did not err in summarily denying probation. It is within the sound discretion of the trial court, under the provisions of section 1203 of the Penal Code, to summarily deny an application for probation. Because the trial court cited a portion of the statute and stated that “among other things the statute provides”, it does not necessarily follow that that was the sole reason for denying the application for probation. This court stated in People v. Blankenship, 16 Cal.App.2d 606, 609, 61 P.2d 352, 353, as follows: “It must, in the first place, be conceded that the granting or withholding of probation is a matter that rests entirely in the sound discretion of the trial court. Section 1203, Pen.Code; People v. Judson, 128 Cal.App. 768, 774, 18 P.2d 379. * The only right which an applicant for probation possesses is that his petition shall receive consideration by the court. He may not demand clemency as a matter of right.” Citing cases.

In People v. Henry, 23 Cal.App.2d 155, 167, 72 P.2d 915, 922, this court previously decided a similar case adversely to appellant's contention as follows: “The defendant's final complaint on this appeal is that the trial court arbitrarily refused to entertain an application for probation. The record does not sustain the objection. * From the foregoing it is apparent, first, that there was no request by defendant's counsel for permission to file a formal application for probation and hence no denial of such a request and, second, that the statement of defendant's counsel to the effect ‘that he would like to make application for probation for the defendant’ was considered by the court to be an application for probation which the court summarily denied, giving his reasons for the denial at some length. There was then no arbitrary refusal of permission to present an application for probation, but on the contrary a denial of an oral application by the judge who had presided during the trial of the action and was familiar with all the facts, including the defendant's character and his reputation for the various traits involved in the offense of which he was convicted, which was very fully developed by the testimony of a large number of witnesses. Section 1203 of the Penal Code (as amended by St.1935, p. 1706) expressly authorizes the summary disposition of an application for probation and it is impossible to find anything in the record which indicates that the trial court abused the very wide discretion which it possessed in passing upon the application.” Citing cases.

This phase of the case is entirely disposed of by the case of People v. Henry, supra.

The judgment and orders from which this appeal has been perfected are affirmed.

GRIFFIN, Justice.

We concur: BARNARD, P.J.; MARKS, J.