PEOPLE v. MATTISON (1970)

OPINION

Appellant was convicted of second degree murder and appeals.

Tested by the well known rule that on appeal this court accepts that version of events which are most favorable to the People to the extent that they are supported by the record, (People v. Randall, 1 Cal.3d 948, 954, 83 Cal.Rptr. 658, 464 P.2d 114), the facts as reflected by 900 pages of a reporter's transcript covering a ten-day trial are as follows:

Both the appellant and the decedent, Jack Corcoran, were inmates of the California Institution for Men at Chino. Appellant was a technician in the medical laboratory. He had previously offered to sell inmates alcohol and was known as the ‘packrat’ and the ‘pawnbroker.’ Corcoran had a history of alcoholism.

On Friday, June 21, 1969, Corcoran asked inmate Hammond where he could get some alcohol. Hammond said that appellant was the only source he knew. The next day appellant asked Hammond if Corcoran's credit was good and Hammond said he would guarantee it. A short time later Hammond saw Corcoran with a bottle in his pocket. Corcoran poured some of the contents into a glass into which he squeezed an orange, tasted the mixture and offered Hammond a drink which he refused. A couple of hours later, Corcoran appeared to have been drinking. Hammond then saw Corcoran pour some more of the mixture into a glass and drink it. In a couple of hours Corcoran appeared to be drunk. The next morning he said he was not feeling well. Appellant then gave Hammond a slip of paper and said ‘Give this to Jack. This is for the items I want for the stuff he got.’ On Monday morning, Corcoran collapsed and became violently ill. Hammond was approached by other inmates and a prison chaplain to ascertain what Corcoran had had to drink. He, in turn, asked appellant, who said, in turn, he had given Corcoran nothing which would hurt him; that he had poured grain alcohol directly from its container into a sterile container; that Corcoran had the flu. However, a short time later, appellant gave Hammond a slip of paper which said ‘Test for methylene. Urine was green in color.’ Hammond again asked what the ‘stuff’ was and appellant repeated that ‘It was just grain alcohol.’

Inmate Walters, a hospital attendant in the Intensive Care Unit, saw Corcoran Monday morning. Corcoran was sick and could not see too well. He told Walters that he had taken about sixteen ounces of alcohol which he had received from appellant; that he knew that he was dying and he did not want appellant to get away with it; that he wanted to see his wife and a priest.

That same morning appellant told Withain, another inmate, who was a medical technician that he had given Corcoran eight ounces of grain alcohol and eight ounces of sterile water.

Dr. Ronald Fankboner, a medical doctor, saw Corcoran that morning. He was comatose, incoherent and restless. His urine was green. He was in intense pain, vomiting and had gone blind. All of these were symptoms of methyl alcohol poisoning. His respiration failed; a tracheotomy was performed, but Corcoran died that morning. In Dr. Fankboner's opinion, the cause of death was methyl alcohol poisoning. A blood sample was taken which showed methyl alcohol 0.15%, a toxic dose. A pathologist who performed an autopsy testified that the results of the autopsy were consistent with those found in cases of methyl alcohol poisoning.

A clinical laboratory technologist supervised appellant and other inmates working in the laboratory. He testified that the hospital did not either use ethyl or pure grain alcohol but that eight ounces of methyl alcohol were kept in the laboratory, not under lock and key. Inmates had access to it in their training and every new trainee was told that it was poison.

Appellant contends:

(1) That the finding of guilt of murder in the second degree was improper.

(2) That the evidence is insufficient to to support the verdict.

(3) That a newspaper clipping and the supporting testimony of a newspaper reporter were improperly admitted.

(4) That the dying declaration was improperly admitted.

(5) That there was insufficient foundation for the admission of a bottle of urine.

(6) That the court erroneously admitted testimony of some people named McNair.

(7) That the People did not establish the corpus delicti properly.

(8) That the court erroneously denied his motion for a new trial on the basis of newly discovered evidence.

I.

THE FINDING OF GUILT OF MURDER IN THE SECOND DEGREE WAS ERRONEOUS.

The court instructed the jury on first degree murder, second degree murder, and involuntary manslaughter. It was error for the court to submit to the jury the issue of second degree murder.

‘Although killing by poison may be simply negligent and amount only to manslaughter, murder (killing with malice aforethought) perpetrated by means of poison is first degree murder.’ (Original emphasis.) (1 Witkin, California Crimes, p. 283.)

Some cases refer to murder by the enumerated methods of torture, poison, lying-in-wait as being murder in the first degree because the means used are conclusive evidence of malice and premeditation (People v. Turville, 51 Cal.2d 620, 632, 335 P.2d 678; People v. Murphy, 1 Cal.2d 37, 41, 32 P.2d 635; People v. Misquez, 152 Cal.App.2d 471, 480, 313 P.2d 206) while others reach the same result by simply finding that these are made murder of the first degree ‘because of the substantive statutory definition of the crime.’ (People v. Thomas, 41 Cal.2d 470, 474, 261 P.2d 1, 3; People v. Tuthill, 31 Cal.2d 92, 99, 187 P.2d 16; People v. Peterson, 29 Cal.2d 69, 79, 173 P.2d 11; People v. Valentine, 28 Cal.2d 121, 136, 169 P.2d 1; People v. Bernard, 28 Cal.2d 207, 211–213, 169 P.2d 636; People v. Lindley, 26 Cal.2d 780, 791, 161 P.2d 227.)¹ In essence, California courts have chosen to interpret Penal Code, § 189, as requiring the enumerated kinds of murder be conclusively presumed to be murder in the first degree.

Under either rationale, murder by poison is murder of the first degree and cannot be murder in the second degree. (People v. Cobler, 2 Cal.App.2d 375, 380, 37 P.2d 869.) Once a jury concludes that the crime was murder (killing with malice aforethought) and that such was perpetrated by poison, it may not find a defendant guilty of second degree murder. The defendant in this case could properly be found guilty only of murder in the first degree or involuntary manslaughter.²

At this point the Attorney General argues that the appellant has no basis to complain where he is convicted of a lesser crime than the evidence justifies. (People v. Jenkins, 118 Cal.App. 115, 118, 4 P.2d 799.) However, this rule is inapplicable in a situation such as this where the defendant as a matter of law could not be found guilty of the offense of which the jury found him guilty. (See People v. Kelley, 24 Cal.App. 54, 140 P. 302.) The Attorney General's argument is predicated on our finding that the defendant could be convicted of second degree murder, a finding we cannot make under the law for the reasons stated above.

The defendant contends that since he could only be guilty of first degree murder, the jury has in effect acquitted him and to try him again would be to put him in double jeopardy. (Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199; In re McCartney, 64 Cal.2d 830, 51 Cal.Rptr. 894, 415 P.2d 782; Gomez v. Superior Court, 50 Cal.2d 640, 643–647, 328 P.2d 976.) This would be true if the defendant could only be guilty of murder in the first degree to the exclusion of any other offense. He may not be retried and convicted of the greater offense of murder in the first degree. (Gomez v. Superior Court, supra.) We have held that as a matter of law he cannot be guilty of second degree murder. However, the jury in finding the defendant guilty of second degree murder necessarily found that he had either committed an unlawful act causing death³ or that he committed a lawful act which caused death in an unlawful manner or without due caution and circumspection. (Penal Code, § 192(2).) These are the requirements to find the defendant guilty of involuntary manslaughter. We conclude that the evidence is legally sufficient to support a judgment of involuntary manslaughter. (There is no evidence that would support a finding of voluntary manslaughter. (Penal Code, § 192(1).))

Under Penal Code, § 1260, this court has the power to reduce the degree of the offense and to modify the judgment of conviction rather than granting an outright reversal. Accordingly, we modify the judgment by reducing the degree of the crime to involuntary manslaughter and remand the matter to the trial court for resentencing. (People v. Bridgehouse, 47 Cal.2d 406, 414, 303 P.2d 1018.)

Inasmuch as we are only modifying appellant's judgment of conviction, we must discuss the other arguments raised by him on appeal.

II.

THE EVIDENCE WAS SUFFICIENT TO SUSTAIN THE VERDICT.

Appellant suggests that there were inferences to be drawn from the evidence which were consistent with his innocence. This is true. Corcoran may have committed suicide; he may have died of the flu; someone else may have furnished the methyl alcohol. These inferences were rejected by the jury. They accepted instead the reasonable hypothesis that appellant had furnished the lethal liquid to the decedent for profit. This is a reasonable theory and supported by substantial evidence. The test on appeal is not whether there are inferences consistent with the appellant's innocence but whether there is substantial evidence to support the finding of guilt. (People v. Nabayan, 276 A.C.A. 448, 453, 80 Cal.Rptr. 779.) “After conviction all intendments are in favor of the judgment and a verdict will not be set aside unless the record clearly shows that upon no hypothesis whatsoever is there sufficient substantial evidence to support it.' [Citations.]' (People v. Scott, 176 Cal.App.2d 458, 497, 1 Cal.Rptr. 600, 624; People v. Helwinkel, 199 Cal.App.2d 207, 216, 18 Cal.Rptr. 685.) Substantial evidence must be reasonable in nature, credible and of solid value. (People v. Bassett, 69 Cal.2d 122, 139, 70 Cal.Rptr. 193, 443 P.2d 777.) Tested by these standards, the above statement of facts supports the verdict as modified.

III.

A NEWSPAPER CLIPPING WAS PROPERLY ADMITTED FOR IMPEACHMENT PURPOSES AND THE TESTIMONY OF A NEWSPAPER REPORTER WAS PROPERLY INTRODUCED TO AUTHENTICATE THE NEWSPAPER CLIPPING.

A newspaper clipping was introduced into evidence which stated that the appellant was charged with furnishing the deceased with methyl alcohol and that prisoners would be the key prosecution witnesses. Inmates Sturgell and Coffie both had given statements to a correctional officer regarding certain inculpatory statements made by appellant. Both suffered convenient lapses of memory regarding these statements during their testimony. The People attempted to establish that their losses of memory were feigned and that they were intimidated by the possibility of retaliation by other inmates who had read about the involvement of prisoners in the trial. The correctional officer testified that inmate Sturgell had handed the newspaper clipping to him that morning, thus impeaching Sturgell's denial that such an incident had occurred. Coffie admitted that he had read the clipping on the prison bulletin board. The clipping was material to establish that the losses of memory were feigned.

The record further reflects that the newspaper article could not have influenced the jury's verdict. It was a factual statement of evidence established at the trial with the exception that it contained information that appellant was serving time for writing bad checks. The jury would naturally infer that he had committed a felony inasmuch as he was an inmate of a state prison. Since writing a bad check is not a crime of violence, knowledge of such a prior offense could not possibly have prejudiced appellant. A prison inmate would have had to commit some crime to get into prison. We cannot conceive that the knowledge on the part of the jury that the appellant was in the penitentiary by reason of a check offense could have had any bearing on the outcome of this case.

The clipping also contained a phrase to the effect that at the time of death the deceased's lips were curled back in a snarling expression. There was no direct testimony as to the expression on his face at the time of death. Nevertheless, the evidence adduced at trial established that death by methyl alcohol poisoning was a horrible death and the expression described in the newspaper clipping could not possibly have influenced the jury any more than the testimony they received from the witnesses as to the intense pain and blindness which the appellant suffered before his death. In any event the jury was instructed to only consider the fact that such an article was published to the extent that it impeached the testimony of inmates Coffie and Sturgell and not for the truth of the statements therein. We assume that the jury followed that instruction.

The newspaper reporter merely testified that he had written a series of articles concerning this case and this testimony was apparently introduced to authenticate the newspaper clipping. That was all the information the jury could have gathered from the reporter's testimony. There was no error in the introduction of this evidence.

IV.

THE DYING DECLARATION WAS PROPERLY ADMITTED.

Appellant contends that the court failed to determine the admissibility of a dying declaration out of the presence of the jury.

The court admitted the deceased's dying declaration that appellant had given him the alcohol and his subsequent dying declaration that he did not want appellant ‘to get away with it.’ Appellant objected on the grounds that the matter should have been heard in chambers.

Section 405, Evidence Code, provides that the court is the sole judge as to the existence of the preliminary fact whether or not the dying declaration was in realization of impending doom. The question of admissibility is not to be resubmitted to the jury. Section 402(b) of the Evidence Code, provides that the judge may in his discretion decide the question of admissibility of evidence either in or out of the presence of the jury except where admissions or confessions are concerned and in these cases out of the presence of the jury if a party so requests. Thus, evidence, relating to whether or not a dying declaration was made in realization of impending death, may in the court's discretion be heard in the presence of the jury. It is clear that this declaration was made in realization of impending death. He was blind at the time; a tracheotomy had been performed; he was in a respirator; and he asked to see his wife and a priest. His sense of immediate pending death may be inferred from his physical condition as well as from a direct statement. (People v. Wilson, 54 Cal.App.2d 434, 441–442, 129 P.2d 149.)

Appellant's contention that the court erroneously ‘failed to instruct the jury on the law pertaining to dying declarations' is without merit. The giving of an instruction that a declaration must be made with knowledge of impending death would be erroneous since under section 405, Evidence Code, the judge's ruling on admissibility is final and the question is not resubmitted to the jury. (See Comment to Evidence Code, § 405.) In addition, appellant requested no such instruction.

V.

A PROPER FOUNDATION FOR THE ADMISSION OF A BOTTLE OF URINE WAS ESTABLISHED.

Without retracing the laborious steps taken to lay the foundation for the admission of a bottle of urine which had been taken from the decedent, we would merely state that we have examined the record and the evidence sufficiently and adequately establishes a chain of evidence. The court committed no error in the admission of this evidence.

VI.

TESTIMONY REGARDING THE McNAIRS.

The prosecutor interrogated several prosecution witnesses as to whether they knew of an inmate McNair and that McNair's wife had been arrested shortly before for bringing narcotics into the institution. One inmate testified that he knew Mrs. McNair had been so arrested a week before Corcoran's death and that a friendship between McNair and Corcoran died down three or four weeks before Corcoran's death. This evidence was introduced in an attempt to establish a motive for the killing, i. e., that someone may have had a motive for wanting to get rid of Corcoran. The People conceded that the evidence as finally developed was weak and was insufficient to tie appellant into wanting to kill Corcoran. However, it was proper for the People to attempt to establish that there was possible hostility between the appellant and the deceased or between the deceased and other inmates in order to establish that the deceased died of criminal means. It should be remembered that the prosecutor was dealing with inmate witnesses. As any experienced trial judge knows, this type of witness is not always completely cooperative with the prosecution and it is apparent that the prosecutor was somewhat disappointed in some of the answers he received from some of the witnesses. Under any circumstances, the evidence concerning the McNairs was of doubtful weight and added little to the case. Assuming for the purposes of discussion that the receipt into evidence of this evidence was error, we have no difficulty in holding that no miscarriage of justice resulted. It is not reasonably probable that a result more favorable to the defendant would have been reached had this evidence been rejected by the court. (Art. VI, sec. 13, Calif. Constitution; People v. Watson, 46 Cal.2d 818, 299 P.2d 243.)

VII.

A CORPUS DELICTI WAS PROPERLY ESTABLISHED.

Appellant contends that the prosecutition did not establish a corpus delicti beyond a reasonable doubt. Such is not the law. Only a slight or prima facie showing must be made that the deceased died through criminal means. (People v. Lopez, 254 Cal.App.2d 185, 189, 62 Cal.Rptr. 47.) There was sufficient evidence that the decedent died from consuming methyl alcohol which appellant furnished him knowing that it was poisonous.

VIII.

THE TRIAL COURT PROPERLY DENIED APPELLANT'S MOTION FOR A NEW TRIAL ON THE GROUNDS OF NEWLY DISCOVERED EVIDENCE.

On his motion for new trial, appellant produced the declaration of a fellow-inmate who stated that he had drunk one-third of a five-inch high cup from which appellant had also been drinking. He also stated that the deceased stated that he received a bottle of the liquid every week from a person named Lanny or Lonnie.

The denial of a motion for new trial is addressed to the sound discretion of the trial court and an appellate court will not interfere except in a clear showing of an abuse of discretion. (People v. Williams, 57 Cal.2d 263, 270, 18 Cal.Rptr. 729, 368 P.2d 353; People v. Avina, 264 Cal.App.2d 143, 148–149, 70 Cal.Rptr. 235.) A motion for new trial on grounds of newly discovered evidence is looked upon with disfavor. (People v. Gaines, 204 Cal.App.2d 624, 628, 22 Cal.Rptr. 556.) The test applied to such a motion is whether a second jury would probably reach a different result on the basis of new evidence. (People v. Huskins, 245 Cal.App.2d 859, 862, 54 Cal.Rptr. 253.) The fact that a fellow-inmate drank some of the methyl alcohol would not have rendered a different result reasonably probable. There is no showing of the strength of the liquid which the inmate drank and Dr. Fankboner testified that some individuals do not suffer serious effects from drinking rather large amounts of methyl alcohol.

The trial court properly exercised its discretin in denying the motion.

The judgment of the trial court of second degree murder is modified and the cause remanded to the trial court with the direction to enter a judgment against the defendant finding him guilty of involuntary manslaugher and thereupon to pronounce judgment upon him as prescribed by law.

FOOTNOTES

1.  In some jurisdictions with similar murder statutes these enumerated methods of murder are considered merely illustrative of the kinds of murder that are normally wilful, deliberate and premeditated and the rule is that these elements must still be proved. (Montague v. State, 240 Ark. 162 [398 S.W.2d 524]; Houlton v. State, 254 Ala. 1 [48 So.2d 7]; State v. Phinney, 13 Idaho 307 [89 P. 634].) The author of a comment in 6 Stanford Law Review 345, states that this interpretation is consistent with the historical purpose dividing murder into degrees. Moreover, this interpretation appears to be more grammatically proper. Were this the rule, then the issue of murder in the second degree could properly have been submitted to the jury in this case. In most murder by poison cases (of which there are very few reported—American, at least California murderers seem to dispose of their victims by more forceful means such as guns and knives), the elements of deliberation and premeditation are obvious. For example, in Cobler, ante, the wife poisoned her husband by putting strychnine in his milk. However, in this case the murder was arguably not deliberate or premeditated. Thus, were it not that California has adopted the stringent rule referred to above in cases involving torture, poison or lying-in-wait, the submission to the jury of the issue of second degree murder would be proper under the facts of this case.

2.  A felony-murder instruction was also given, based on the felony of administering poison with the intent to injure. (Penal Code, § 347.) This offense is clearly an ‘integral part’ of and ‘included in fact within the offense’ of murder by poison. (People v. Ireland, 70 Cal.2d 522, 539, 75 Cal.Rptr. 188, 450 P.2d 580.) Therefore, for the reasons stated in People v. Ireland, supra, the giving of a felony-murder instruction was also erroneous.

3.  Penal Code, § 347b, provides that it is a misdemeeanor to sell, furnish or give away any alcoholic solution of a potable nature containing any deleterious or poisonous substance. The jury were instructed on this code section in connection with BAJI 308–B (Rev.) in their instructions on involuntary manslaughter. In this regard, they were also read BAJI 309 (Rev.), 310 (Rev.) and 312 in defining involuntary manslaughter.

GARDNER, Presiding Justice.

KERRIGAN and TAMURA, JJ., concur.