PEOPLE v. BRIDGEHOUSE (1956)

Defendant was charged with murder. In a trial by jury he was convicted of murder in the second degree. He appeals from the judgment and from the order denying his motion for a new trial.

Appellant contends that the evidence is insufficient to support the verdict, and that the court erred in refusing to give certain instructions requested by him.

On January 9, 1955, appellant shot and killed William Bahr, who was a guest in the home of Mrs. Huff, the mother-in-law of appellant. Appellant and his wife were not living together. About 10 a. m. on said January 9, appellant and his son, aged about 2 1/2 years, went in an automobile to the home of Mrs. Huff. The son remained in the automobile, and the appellant went into the house. At that time appellant had a .38 revolver ‘in his belt.’ Mrs. Huff was in a bedroom which was opposite the den. Bahr was sitting on a davenport in the den. Appellant went to the doorway of the bedroom, and asked Mrs. Huff for socks for his son. Mrs. Huff told appellant the socks were in the pantry. Appellant left the bedroom. About five minutes later he returned to the doorway of the bedroom. Mrs. Huff told appellant that he lookd ‘white and shaking,’ and that she had something the doctor had biven her which she thought would clam him. She left the bedroom and went through the pantry and into the kitchen. Then she walked back toward the bedroom, and as she came to the pantry doorway she saw appellant firing shots at Bahr. At that time appellant and Bahr were standing and facing each other—Bahr was between the davenport and coffee table, and appellant was on the other side of the coffee table. Mrs. Huff testified that she heard five of six shots, that Bahr ‘started falling before the end of the shots' and he fell forward over the coffee table.

A police officer, called as a witness by the People, testified that he arrived at the Huff residence about 10:25 a. m.; appellant was sitting at a table in the kitchen, with his head in his hands. Appellant stated that he did the shooting, and that he laid the gun down ‘somewhere’; he (officer) found a .38 revolver on the mantle in the room (den); there were six empty ‘cartridges' in it. The officer testified further that appellant stated, in answer to questions, that when he left his home that morning he put the gun in his belt. He thought it was fully loaded; he went to the home of Mrs. Huff to get socks for his son; when he walked through the hall he saw his wife's boy friend (Bahr) sitting on the couch; he (appellant) had the gun in his belt when he went in, because he did not want to leave it in the car with his son; after he got the socks, he went back into the bedroom and talked to Mrs. Huff; then he went into the room where Bahr was, and he said to Bahr ‘We might as well get it over with’; Bahr stood up, and appellant drew the gun and shot; he kept on shooting and emptied the gun at Bahr; he did not think Bahr was making any offensive move when he (Bahr) stood up; he did not know when he went to the home of Mrs. Huff that Bahr was in the house; it (shooting) was a thing that happened spontaneously. The officer testified further that, about 25 minutes after the first conversation, he (officer) asked appellant to go over the ‘entire thing’ again; as appellant talked the officer made notes, and later that morning at the station a typewritten statement was made from those notes. The officer read the statement into evidence, which statement was in substance the same as his testimony regarding the first conversation. The officer also read into evidence a statement which appellant made at the police station, which statement had been taken in shorthand and then transcribed. Appellant stated therein that he did not remember whether he said anything before shooting Bahr—that he did not actually remember pulling the trigger—all he remembered was that the gun was ‘clicking on empties.’

An autopsy surgeon testified to the effect that seven bullet wounds were in the body of Bahr.

Defendant testified that when he went to Mrs. Huff's house he was tired, ‘perhaps' to the point of exhaustion; after he went to her bedroom the second time, he walked into the room where Bahr was sitting; he thought he spoke to Bahr—it ‘is very hazy’; it is appellant's recollection that at that time he (appellant) wanted to discuss the legal action he was taking against Bahr. He did not recall whether Bahr said anything to him—he had a vague memory of Bahr springing from the couch; the next thing he remembered was that he was pulling the trigger on some empty ‘cartridges'; he was not conscious at any time of any bullets exploding, the whole action was of an explosive nature and ‘distorted by a haze of mental void’; he had been wounded while in the Army; many times while in the Army, and also in recent civilian life, he had been in such a state of fatigue that he could not speak rationally.

In October, 1954, appellant had commended an action for divorce. On January 4, 1955, he applied for an order restraining his wife from associating or cohabiting with Bahr in the presence of the minor child of the appellant and his wife. An order to show cause in re such application was served on the wife on January 7. On January 8, at the request of the wife, appellant had a discussion with her regarding the divorce and order to show cause. Appellant testified that the wife said that she would not hesitate to lie or to use any method to fight the action.

Appellant argues, with respect to his contention as to insufficiency of the evidence, that there was no evidence of malice toward the deceased; that the evidence indicates that there was no mental state at all insofar as appellant was concerned; and that there was no evidence that the appellant was conscious of what was going on at the time the shooting occurred. It would serve no useful purpose to summarize the evidence hereinbefore referred to. The evidence was sufficient to support the judgment.

Appellant asserts further that the court misdirected the jury, in that, there was no instruction to the effect that if appellant was unconscious at the time of the shooting he should be found not guilty. Appellant requested three instructions on the subject of noresponsibility of a person for an act committed by him while he was unconscious. The instructions were refused. One of the instructions was: ‘When the evidence shows that a defendant acted as if he was conscious, the law presumes that he them was conscious. This presumption is disputable, but is controlling on the question of consciousness until overcome by a preponderance of the evidence, which means such evidence as when weighed against the presumption and any evidence supporting the presumption has more convincing force, and from which it results that the greater probability of truth lies therein. The rule of law just announced does not change, or make an exception to, the law which places upon the people the burden of proving defendant's guilt beyond a reasonable doubt.’ The court did not err in refusing to give that instruction. The same instruction was held to be erroneous in People v. Hardy, 33 Cal.2d 52, at pages 63 to 66, 198 P.2d 865, at pages 871 to 873. Another instruction, requested by appellant and refused by the court, was a portion of section 26 of the Penal Code as follows: ‘All persons are capable of committing crimes except those belonging to the following classes: * * * Five—Persons who committed the act charged without being conscious thereof.’ Another refused instruction, requested by appellant, was: ‘Where a person commits an act without being conscious thereof, such act is not criminal even though, if committed by a person who was conscious, it would be a crime. This rule of law does not apply to a case in which the mental state of the person in question is due to insanity, mental defect or voluntary intoxication resulting from the use of drugs or intoxicating liquor, but applies only to cases of sound mind as, for example, somnambulists or persons suffering from the drlirium of fever or of the involuntary taking of drugs or intoxicating liquor, and other cases in which there is no functioning of the conscious mind and the person's acts are controlled solely by the subconscious mind.’ Appellant cites People v. Baker, 42 Cal.2d 550, 268 P.2d 705, wherein defendant was convicted of murder. In that case the defendant had had frequent epileptic seizures for 25 years, had been committed to mental hospitals three times, and was under the care of a physician who had prescribed anti-convulsant medicine for defendant. The court therein said at page 575 of 42 Cal.2d, at page 720 of 268 P.2: ‘In this case there was ample evidence of voluntary intoxication, and there was also evidence that defendant was unconscious at the time of the offense because he was in the ‘clouded state’ of an epileptic attack. The evidence of unconsciousness being present, the instruction based on Penal Code, section 26(5) was properly given, for defendant's complete defense based on unconsciousness was entirely separate from his partial defense based on intoxication.' In the present case the evidence with respect to alleged unconsciousness was meager in comparison with the evidence in the cited case. The appellant herein said at the trial that he did not recall whether Bahr said anything to him—he had a vague memory of Bahr springing from the couch; the next thing he remembered was that he was pulling the trigger on empty ‘cartridges', he was not conscious of any ‘bullets' exploding, the whole action was of an explosive nature and distorted by a haze of mental void. ‘[A] defendant's mere statement of forgetfulness, unsupported by any other evidence, is at most very little evidence of unconsciousness at the time of performing a particular act. There must be something more than his mere statement that he does not remember what happened to justify a finding that he was unconscious at the time of that act.’ People v. Coston, 82 Cal.App.2d 23, 40, 185 P.2d 632, 641. There was evidence herein that appellant's mother-in-law noticed, prior to the shooting, that he was white and shaking. It is to be noted, however, with respect to appellant's statement of alleged lack of memory, that about 25 minutes after the shooting and at the scene thereof he related to a police officer details of the shooting and details of his actions during the morning preceding the shooting; and also that about 25 minutes after the first statement to the officer and at the scene of the shooting, the appellant related to the officer the substance of the same details. It is also to be noted that it was not until the appellant was at the police station that he said he did not remember pulling the trigger—that all he remembered was that the gun was ‘clicking on empties.’ Even though the testimony of the officer, with respect to appellant's statements of details, indicates that appellant was conscious, there was some evidence which might be regarded as evidence of unconsciousness; and a theory of the defense was that appellant was unconscious. It would have been proper to give the two instructions, last above referred to, regarding unconsciousness. Under the evidence and instructions herein, the failure to give those instructions was not reversible error. It is not claimed that appellant did not know what he was doing when he armed himself with a gun in preparation for a visit to the home of his mother-in-law where he might encounter Bahr. The evidence with respect to unconsciousness was slight. The conduct of appellant preceding the shooting, and his conduct and statements soon thereafter, were substantial evidence that he was conscious at the time of the shooting. The court gave an instruction¹ pertaining to the question of intent. It also gave an instruction² to the effect that evidence bearing on the mental and nervous condition of appellant at the time of the offense had been received, and that such evidence might be considered by the jury in determining whether or not defendant did any act charged against him ‘and, if so, whether or not, at the time, there existed in him the specific mental factor which, as you have been instructed, must accompany that act to constitute a certain crime or degree of crime. You do not [at this time] have before you any issue as to defendant's legal sanity.’ (It is true, however, that the instruction just referred to is complex, and that the point involved therein should have been more clearly stated.)

The judgment, and the order denying the motion for a new trial, are affirmed.

FOOTNOTES

1.  Instruction: ‘The intent or intention with which an act is done is manifested by the circumstances connected with the offense and the sound mind and discretion of the person committing the act. All persons are of sound mind who are neither idiots, hor lunatics, nor affected with insanity. Upon the trial of the issue raised by the plea of not fuilty, the defendant is conclusively presumed to have been sane at the time the offense is alleged to have been committed. ‘If and when a jury has found that one person killed another, then in determining the intent or state of mind of the person who committed the act, at the time of and immediately preceding its commission, the jurors may fittingly consider the means used to accomplish the killing. ‘The wilful use of a deadly weapon without excuse or provocation in such a manner as to imperil life generally indicates a felonious intent. ‘A person must be presumed to intend to do that which he voluntaily and wilfully does in fact do, and must also be presumed to intend the natural, probable and usual consequences of his own acts. Therefore when one person assails another violently with a dangerous weapon likely to kill, and which does in fact destroy the life of the person assailed, the presumption is that such assailant intended death or other great bodily harm. ‘Any such presumption as I have mentioned, however, may be overcome by contrary evidence; and any such evidence is sufficient to overcome it which creates in the minds of the jurors a reasonable doubt that the defendant's intent was as so presumed. In the absence of evidence to the contrary, the presumption must prevail.’

2.  Instruction: ‘You are reminded, however, that a person might be legally sane, as we define that term in dealing with the question of criminal responsibility, and yet be in an abnormal mental or nervous condition; and because of such condition he might be less likely or unable to have or to hold a specific intent or a certain state of mind, which is an essential ingredient of a certain crime. We have received evidence bearing on the mental and norvous condition of the defendant at the time of the alleged commission of the crime charged. Such evidence may be considered by you in determining whether or not defendant did [any] act charged against him and, if so, whether or not, at that time, there existed in him the specific mental factor which, as you have been instructed, must accompany that act to constitute a certain crime of degree of crime. You do not [at this time] have before you any issue as to defendant's legal sanity.’

PARKER WOOD, Justice.

SHINN, P. J., and VALLEÉ, J., concur.