PEOPLE v. BOLTON (1967)

This is an appeal from a judgment of conviction of murder in the first degree and of assault with a deadly weapon with intent to commit murder.

In an information filed in Los Angeles County on December 2, 1965, Jethro Bolton was charged in count I with murdering Micha Thompson on November 8, 1965, with malice aforethought. In count II he was charged with committing an assault with a deadly weapon upon Cozetta Johnson on November 8, 1965, with malice aforethought and with intent to murder Cozetta Johnson. It was further charged that defendant on August 26, 1953, had been convicted of forgery in the County of Los Angeles and further that he had been convicted of burglary on or about January 22, 1957, and had served a term in prison therefor. Bolton pleaded not guilty; he admitted to the charged prior felonies. In a jury trial defendant was found guilty of murder in the first degree as charged in count I and of assault with a deadly weapon with intent to commit murder as charged in count II. Pursuant to stipulation by all concerned the matter of the penalty in the murder count was heard by the court without a jury. Defendant was sentenced to the state prison, the terms to run concurrently with each other. A timely notice of appeal was filed.

A résumé of some of the facts is as follows: On November 8, 1965, at about 11 p. m., defendant Cozetta Johnson (the sister of Micha Thompson), Micha Thompson (the deceased), and Fred Snow, each of whom had been drinking during the day, arrived in Fred Snow's car at the home of defendant's sister, Minnie Murray, on South Compton in Los Angeles. While the persons mentioned were sitting in the living room, defendant began waving a pocket knife around and then cut Micha Thompson on the knee (the knife had a blade about five to six inches in depth); she got up, stepped out of her shoes and defendant then struck her. Cozetta Johnson could not determine whether defendant hit Micha Thompson with his fist or stabbed her because she, Cozetta Johnson, did not see a knife in his hand at that time. Micha Thompson then fell onto a couch. Defendant then stabbed Cozetta Johnson nine times. The last Cozetta Johnson remembered of having seen Micha Thompson was when she (Micha Thompson) was on the couch. Cozetta Johnson further stated that all four persons had been drinking during the day and that everyone had been very friendly prior to the cutting of Micha Thompson. She further testified that when defendant hit Micha Thompson it was around the head area and it did not appear to be a stabbing motion. When Cozetta Johnson left the room, Fred Snow, defendant and Micha Johnson were still there with the latter person lying on the couch. Fred Snow testified that he called the police because he had seen someone on the floor although he could not remember who it was.

Fred Snow also testified as a prosecuting witness that he had not seen a small pocket knife in defendant's possession but saw only a ‘shiny’ object in defendant's hand when he (Snow) was at the door of Minnie Murray's house and he could not tell whether it was a knife. Further he testified that he did not see a scuffle between Micha Thompson and defendant or anything else. Other questions put to him by the prosecutor and answers given by Snow were as set forth in the footnote.¹

The prosecutor had in his possession a signed two-page typewritten statement made by Snow and a copy of the transcript of the preliminary hearing. After a showing by the deputy district attorney that he was surprised with and damaged by the testimony of Snow, he sought to impeach him. Snow was handed his typewritten statement and acknowledged that he had signed both pages of the statement. He was then asked whether in the statement he had said: “I was standing at the door talking to Cozetta and I heard Micha yelling, ‘No, no, no.’ Cozetta ran inside and I saw Jethro with a knife in his right hand and he was holding down by his leg.” Snow said that he had made such a statement. Snow was then shown his testimony at the preliminary hearing, held on November 18, 1965, and was asked: ‘Now, I want to ask you now whether you have a present recollection as you sit here now as to whether or not the defendant had a knife in his hand on November 8 of 1965.’ Snow replied: ‘No, it looks like a knife, * * * but I couldn't say exactly was a knife. I said it was a shiny object.’ He further said in answer to a question by the judge at about this time, ‘Yes, I knew he had a knife.’ and the judge asked ‘Well, now, did you see the knife?’ and Snow replied, ‘No. I saw some shiny object.’

Parts of the preliminary transcript were then read aloud as follows:

“Q And what, if anything, did you see in Mr. Bolton's possession?

‘A He seemed to have a knife in his hand.

‘Q What kind of a knife was this?

‘A I don't know exactly as it was pretty dark. It seemed to be some type of a shiny object.

‘Q You don't recall whether or not you have seen that knife before?

‘A I saw this knife. I don't know whether it was that one or not.”

Snow testified at the trial that he had so testified at the preliminary hearing.

An autopsy surgeon for the coroner's office performed an autopsy on the deceased and found nine cut wounds on the body varying in size from several inches in depth to skin surface cuts. The doctor stated that six of the nine wounds were lethal in nature and that the stab wound at the base of the skull severing the spinal cord would have rendered her incapable of any further voluntary action. The blood alcohol of deceased was .19.

Officer Forbes of the Los Angeles Police Department arrested defendant about 5:15 a. m. November 9, 1965, after having talked with Snow. Defendant was sober at that time. Defendant was advised of his constitutional rights and as to his right to remain silent, his right to an attorney at all stages of the proceedings and that anything he said could be used against him in subsequent court proceedings. Defendant acknowledged that he understood the admonitions by the officer. Defendant was then questioned in the police car on the way to the station and he freely and voluntarily gave a statement to the police. Defendant related to the officer that he had consumed some beer and rum on the date of the killing, that he found his money to be missing and called it to the deceased's attention, whereupon she got mad and fearing that Cozetta Johnson and deceased might attack him, he then pulled out his knife and ‘cut’ the deceased and Cozetta Johnson, that he then left the premises and slept that night in a vacant lot where the knife must have fallen out of his pocket.

Officer Larson, an investigating officer of the Los Angeles Police Department, arrived at the scene of the murder at about 12:45 a. m., November 9, 1965, and upon entering saw the body of the deceased on the floor in a pool of blood. He also noticed that the kitchen plastic drapes appeared to have been burned on the stove. Larson took pictures of the scene and these were introduced into evidence. Larson also questioned defendant on November 9, 1965, about 9:15 a. m. at the jail after advising defendant with reference to his constitutional rights. Defendant stated to Larson that he had been advised of his rights previously and then gave a free and voluntary statement to the officer. That statement was transcribed into writing and signed by defendant and the officers. Defendant therein stated, among other things, that he had accidentally cut decedent, that he got mad and when Cozetta Johnson came over he began cutting the decedent, that Cozetta Johnson had attempted to get hold of him and he cut her too, that the knife he had used had a blade about three and one-half inches long.

Officer Riley, of the Los Angeles Police Department, talked with defendant on November 9, 1965, in the police car on the way to defendant's arraignment. Defendant told the officer that he had cut decedent while attempting to show her how he was going to deal with another person with whom he had had an argument.

The only questions in this case are whether, under the circumstances, the prosecuting attorney could impeach Snow, his own witness and whether it was error for the judge not to instruct the jury on the subject of impeaching testimony.

We are persuaded that under the circumstances of this case no useful purpose would be served in making an extended analysis of each of the cases on the subject of impeaching one's own witness, for here there was ample evidence to establish that appellant ‘cut’ both Cozetta Johnson and Micha Thompson and that Micha Thompson died from the wounds she received. There was in any event no miscarriage of justice in the proceeding as so conducted and appellant in his own brief so states (Cal.Const. art. VI, § 4 1/2).

No request was made by counsel for appellant at the trial for an instruction with reference to the limited nature of the impeaching testimony. In the absence of any such request there was no duty upon the trial court to instruct the jury on the matter. (See People v. Sweeney, 55 Cal.2d 27, 43–44, 9 Cal.Rptr. 793, 357 P.2d 1049; People v. White, 50 Cal.2d 428, 430, 325 P.2d 985; People v. Weitz, 42 Cal.2d 338, 347, 267 P.2d 295.)

The appellant was fairly and properly convicted of murder in the first degree and of the offense as charged in count II of the information.

The judgment is affirmed.

FOOTNOTES

1.  ‘Q Let me ask you this: At any time, did you see a small pocketknife in the possession of the defendant Bolton?‘A No. I saw a shiny object in his hand at the door. I don't know whether it was a knife or not.‘Q Did you see what appeared to be a scuffle or something resembling it occurring between Micha Thompson and defendant?‘A No, I didn't.‘Q Would you tell us what you did see?‘* * *‘THE WITNESS: I didn't see anything.‘* * *‘Q Who did you see lying on the floor?‘A I saw a woman lying on the floor.‘Q Was that Micha Thompson?‘A I don's know whether it was her or not. I didn't take a good look.‘Q Did you see Cozetta Johnson?‘A No, I didn't.‘Q You didn't see Cozetta Johnson?‘A No.‘Q You were talking to her near the door there, weren't you, sir?‘A No, I don't remember.‘Q You don't remember?‘A No.’

FOURT, Associate Justice.

WOOD, P. J., and LILLIE, J., concur.