PEOPLE v. WALKER (1948)

Defendant has been convicted of the murder in June, 1946, in Los Angeles, of police officer Loren C. Roosevelt, and of the attempted murder in April, 1946, of two other officers. The appeal from the judgment of conviction of murder is automatically before this court by virtue of the provisions of section 1239 of the Penal Code. Appeals from the judgments of conviction of attempted murder are not here presented.

To the murder charge defendant pleaded not guilty by reason of insanity and alienists were appointed to examine him and report on his mental condition. When the cause was called for trial defendant waived a jury. He was questioned closely by the court to insure that he understood that in entering only the insanity plea, he was admitting the commission of the offense, and that under his waiver of a jury, if the court found him to be legally sane at the time of commission of the crime, it would have no recourse other than to find him guilty of the murder and to impose a sentence of either life imprisonment or death. Upon defendant's assurance that this was clearly understood, trial of the insanity issue proceeded. Counsel stipulated that the court might consider that evidence in fixing the degree of the crime.

On appeal defendant questions the sufficiency of the evidence to establish murder of the first degree, pleads for reduction of the crime to murder of the second degree, and criticizes a ruling of the trial court on the admission of evidence.

The evidence shows in substance the following: Defendant, now about 29 years of age, was a normal boy, above the average in intelligence. He was interested in radio work, was a good athlete, on the track team, graduated from Hoover School, and had one year at California Institute of Technology. He was thereafter employed by the police department as a radio operator. He lived with his parents and sister, was gentle, affectionate, considerate above the ordinary for the welfare of others, and gave no trouble in any way.

In 1941 he entered military service and served in the Pacific area. After graduating from officers' training school in Australia with rank of second lieutenant, he was assigned, by reason of his technical knowledge, to a small group of men engaged in radar repair and maintenance in advance invasion areas. After some service on other islands he was sent to Wake Island about June, 1944, and stayed until November, 1944. While there he was subjected to Japanese bombardment for some days and nights. With his personnel he found some thousand dismembered, decomposed Japanese bodies strewn over the area. The stench affected the men's ability to rest, sleep, and eat. The practice prevailed for a while among the enlisted men of preparing the heads of Japanese so that the skulls could be shellacked and used for desk ornaments.

Defendant moved to Leyte Island about November, 1944, and participated in a portion of the invasion of that island after bombardment. He and another officer selected a campsite and took some security measures for the safety of about 85 men, but did not post a day guard because of orders which had been received. Defendant was sent back to his ship under orders and when he returned to the island he learned that there had been a Japanese sneak attack at dawn and that his closest friend had died under conditions of valor. He claims he felt an overwhelming sense of guilt for failure to take further security measures, although all of the officers were cleared by investigation of any lapse of duty. Thereafter defendant and his group were subjected to approximately three days and nights of continuous battle by reason of the invasion of Japanese paratroopers, and this despite the fact they were not a combat but a signal corps company. Up to this time defendant was well liked by all the men who worked with him, and was reputed to be more than usually considerate of them.

After the Leyte occurrence defendant felt he could not serve as an officer and asked to be permitted to return to the United States. He was released from active duty in December, 1944, but was promoted to first lieutenant in July, 1945, about three months after his arrival in the United States. There was a progressive change in his temperament for the worse after he left Leyte.

Early in 1945, while still on active duty, defendant burglarized a garage, taking a set of tools, voltmeter, and radio tuner. In August, 1945, he entered the ordinance warehouse at night and stole six Tommy guns, twelve .45 automatics, six .38 revolvers, ammunition, holsters, and clips. He was discharged from the army in November, 1945. During his first week of terminal leave, he stole an automobile, changed the license plates, and used it to transfer some of the stolen goods. From a men's store, he stole civilian clothes. From record and film companies he stole amplifiers, electronic equipment, records, projector, recording turntable, camera, and other equipment. He rented a garage and fitted it up as an experimental workshop. His burglaries continued and yielded funds for living as well as other property.

He never returned to live with his family. They found him a changed person mentally and physically from the boy they had known. He was morose, melancholy, taciturn, brooding, rough with small children, secretive, and difficult. He took several small jobs, but quit them. He generally carried a machine gun.

An attempted sale by defendant in April, 1946, of equipment taken in one of the burglaries, gave the police a clue to his identity and whereabouts. Two officers attempted to effect an arrest but defendant shot his way out, thus committing the attempted murders of which he was found guilty. In May, 1946, defendant burglarized another establishment, taking from it a roll of safety and detonating fuse and a roll of priming cord. With the thought of blowing safes and cutting locks, he made nitro-glycerine out of fuming nitric acid, sulphuric acid and glycerine.

In the early dark of a morning in June, 1946, defendant drove to a meat market, and preparatory to an attempt to blow the safe in it, he severed the lock on the gates with bolt cutters and put on his own padlock. He then hid the bolt cutters in an adjoining area, got into his car, and drove around the block to see if he had been observed. Not seeing anyone, he retrieved the bolt cutters and returned to his car, again driving around the block. He saw someone with a flashlight in the vicinity where he had hidden the cutters. He turned his car at the second street past the meat market and parked it half way down the block. He then walked back and saw the person with the search light enter a car and drive it toward him. It drew up directly opposite him and be saw that the driver was an officer. The officer called defendant to the car and asked what he was doing in the neighborhood. Defendant told some story about seeing a girl friend. The officer, sitting behind the steering wheel with a flashlight in his left hand and his right hand on the butt of his gun, asked defendant for his identification. Defendant slowly drew his loaded .45 automatic from under his belt and pointed it at the officer, who then whipped out his own revolver, Defendant shot twice at the officer, ducked, and ran, abandoning his own car. The officer died in the hospital a few hours later. Defendant's abandoned car was found to contain bolt cutters, a loaded Thompson submachine gun, a bag of tools, sap, sash cord, bell wire, hacksaw blades, hand drill, electric drill, crescent wrenches, pay bar, extension cord, hammer, pliers, wire cutters, nitroglycerine, adhesive tape, percussion cap crimped to a 4x4 white blasting fuse and a primer cord attached to the percussion cap.

After the murder defendant gave up the idea of blowing safes and worked at several jobs for brief periods. He then experimented with making California license plates and drivers' licenses, which could be used in selling ‘hot’ cars. He had theretofore stolen various cars. In December, 1946, he started robbing liquor stores. These crimes led to his apprehension by the police, although he attempted to resist arrest with a Thompson submachine gun. After arrest defendant gave detailed confessions regarding his commission of numerous crimes.

Whether defendant embarked on his career of crime with an idea of making society support him and pay for his suffering, or whether he did it, as he claims, under an aberration, was an issue for the trial court. Defendant asserts that although he had been told that his best friend had been killed in the dawn attack on Leyte Island, nevertheless he either met this friend as a stowaway on the transport home, or else had a vision or hallucination of meeting him; that the two decided that the blame for the war lay at the door of the industrialists and evolved a plan to prevent any future similar occurrence. Defendant told his friend of an idea he had of inventing an electronic radar gun, which by shooting a beam would disintegrate metal into powder, and by which they could seize control of the Government and enforce legislation which would increase the cost of war to a point where it could not profitably be waged, effecting this primarily by raising to a high level the salaries paid to soldiers.

Defendant testified that he was to meet his friend after his discharge, but the friend never appeared; that he committed his series of thefts with the idea of securing the equipment to proceed with his invention and protect it; and that even in wounding and killing the police officers, he thought the sacrifice was justified by his plan to forever end war. Defendant said that later he came to the realization that his idea was ‘strictly screwball,’ too far fetched and foolish to expect anyone to believe it; that it would need very ultra short frequencies to upset a molecular structure, which could not be obtained by normal radio means; that he was attempting to develop means whereby such frequencies could be developed between light rays and longer radio waves.

The way in which defendant planned and effected his crimes and his success in eluding capture for so long a time showed a keen mentality. After he was arrested his family revealed to him a long history of insanity in both branches of the family. A great-great-great-grandfather was insane for nine months. A great-great-grand-uncle, great-great-grandfather, and great-grand-aunt also spent time in the insane asylum. A great-grandfather committed suicide, as did a grand-aunt. A grandmother is confined at Patton. A grand-aunt had hallucinations. A cousin is mentally retarded; the father a psychoneurotic.

Dr. R. O. Lieuallen, a member of the staff of the Norwalk State Hospital, appointed by the court to examine defendant, testified that after taking into consideration both the family and personal history of defendant, he believed that it was evident that defendant had a bad family background, and an unstable nervous system; that it was difficult to evaluate just how much his home environment or service experience had helped to precipitate his criminal conduct, but in his opinion defendant was sane at the time of commission of the murder and at the time of trial. Upon being shown an exhibit which charted the family history of insanity the doctor admitted it was worse than he thought it was but that it did not change his opinion. Upon objections by defendant on the ground of remoteness of time of examination (February-March, 1947) from time of commission of the murder (June, 1946), the doctor also admitted that it was possible for defendant to have been insane during the period of criminal activity and to have recovered his sanity at time of examination, but he reiterated his opinion that defendant was sane, and that the story told by defendant of the appearance of his friend on board the ship did not ‘ring of the true delusion or hallucination’; then at some length he explained why it did not ring true.

Two other doctors examined defendant and also reached the conclusion that although he was emotionally unstable, he was sane both at the time of his commission of the murder and at the time of their examination.

Dr. Lieuallen, on re-direct examination, was asked whether his report would have been different in some respects if at the time he had had the full details of defendant's family background. He replied: ‘I probably would have mentioned more about the family background, but I do not think it would have changed my conclusion about it.’ Then when asked if it would have produced ‘a doubt in your mind as to his possible sanity,’ the court sustained an objection to the question as having been asked and answered. This ruling is assigned as error. However, the record shows that the second question was a repetition, in slightly different form, of the previous question, and that the doctor had also reiterated that he did not believe that his conclusion would have been changed. The ruling was not erroneous, much less prejudicially so.

Defendant contends that in view of his family background and the impact of his war experience upon his mentality; this court should reduce the crime to second degree murder; that ‘aberration naturally resulting from defense of one's country, from a moral viewpoint should be viewed by the courts with more favor.’ This appeal to sympathy cannot avail defendant. It is similar to the plea of ‘shellshock’ which was raised by a veteran of the first world war in People v. Gillberg, 197 Cal. 306, 240 P. 1000. As this court there said 197 Cal. at page 313, 240 P. at page 1003: ‘It must be accepted as a fact, found by the jury, that the defendant was responsible to the law for his act. There is absolutely no substantial evidence in the record that even tends to show that the defendant was affected by any kind or degree of insanity which the law recognizes as an excuse for the commission of interdicted acts, either at the time of, or prior to, the commission of the crime.’ Under defendant's plea of not guilty by reason of insanity, the only issue was his sanity, and that was resolved against him. The record affords abundant support for the conclusion that he was sane.

At the time the court was considering the fixing of the degree of the crime, the district attorney expressed the belief that the murder was of the first degree because it was committed in the course of perpetration of a burglary and also, although there was some conflict in the evidence on the issue, because it was a wilful, deliberate killing. The court commented in substance that although the record might well support a finding that the killing was wilful and deliberate, nevertheless he would rest his finding upon the one basis of a first degree murder committed in the perpetration of an attempted burglary.

Defendant argues that the killing was more in the nature of a killing in the commission of assault with a deadly weapon than in the attempted perpetration of a burglary; that the burglary had been abandoned at the time of the murder for then defendant's sole purpose was to disarm the officer so as to evade arrest for the prior shooting of two other officers.

The evidence, however, supports the court's view. At the time of the murder defendant had already snipped the bolt on the door of the meat market and replaced the lock, and he was scouting the neighborhood to see that the coast was clear; in other words, he was in the process of completing his attempted burglary after commission of a definite overt act. A killing in an attempt to perpetrate a burglary is murder of the first degree (Penal Code, sec. 189). A failure to complete a crime because of threatened arrest or the appearance of the police is not such a free and voluntary act as to constitute an abandonment. People v. Corkery, 134 Cal.App. 294, 297, 25 P.2d 257. Moreover, the record also supports the conclusion that the killing was wilful, deliberate, and premeditated. As the trial court remarked at the time of imposing the death penalty, ‘I feel that when the defendant shot and wounded officers Forbes and Johnson he felt that he was coming to the end of his rope and that it was either him or them, and I believe even more so when he shot Officer Loren Roosevelt in the car that that same thought went through his mind, that this was the crucial point in his life; that if Roosevelt got the drop on him and captured him, that all of his past career would come up to him, but that if he succeeded in getting Officer Roosevelt out of the way, he would have another chance. However, I believe that in addition to my finding that the killing of Loren Roosevelt was murder in the first degree as a matter of law, I feel that it was a deliberate killing, a purposeful killing on the defendant's part.’

The sufficiency of the evidence to support the finding of sanity is not questioned. Defendant himself testified at great length on the trial. He showed a mentality and scientific learning far above the average. The concern of the trial court over the case is reflected in his remarks at the close of the trial and at the time of imposing sentence of death. Among other things he said: ‘This is a case in which I feel my responsibility very greatly. * * * The defendant, of course, in his lengthy time on the witness stand here showed a high degree of intelligence. I seldom recall a more intelligent witness, a witness who gave clearer responses to the questions than did Mr. Walker. It is true that he had a war experience that, in the vernacular of the service men, might be termed rugged, but without analyzing it or comparing it too much, I would say that perhaps millions of his fellow Americans had experiences that were equally rugged during the war. Furthermore when the defendant came home and back to his country, apparently his services were so satisfactory that after his return home he received a promotion so that there certainly could not have been any important effect that way. The whole course of conduct of the defendant as testified to by the defendant and by the witnesses shows to my mind intelligence and plan far beyond anything that is usually seen in a case of this type. * * * Now, we come to the question of hallucinations. * * * I frankly cannot accept the idea of the hallucinations, because it does not fit in with the rest of the testimony; it doesn't fit in with his plans and it doesn't fit in with any number of things. * * * I am convinced affirmatively that the defendant was at the time of the commission of the acts charged in the indictment and is now legally sane. * * * ’

In fixing the penalty, the court further said. ‘The decision that I have to make in this case is the most difficult and solemn that ever faces a judge. * * * I recognize the defendant's war service and the disturbing effect it may have had upon him; but as I also said yesterday, his service was shared by millions of other boys who have come back home and who have led and are leading normal lives. I recognize the fact that the defendant has what may be classified as an unstable personality; that he may be disturbed emotionally, but I think it would be true that most persons who choose for themselves a life of violent crime are unstable and disturbed. I believe that that cannot enter into our deliberations. * * * It seems to me that this defendant has shown by his own testimony on the witness stand, by the story of his life of crime, also by the statement that he has made to other officers that he is beyond the possibility of rehabilitation; that he will be a menace to society wherever he is, whether that is inside or outside the penitentiary. His remarks have indicated that if he were sent to the penitentiary on a sentence there he would immediately set about ways of getting out, and I think the chances are fairly good that he might be successful. Because of a belief that this defendant will be a menace wherever he is, inside or outside of the prison walls, I very regretfully, I may say prayerfully, fix the penalty in this case as the death penalty provided by law.’

Defendant moved for a new trial which was denied.

On this appeal we have reviewed the entire record, including the proceedings on the motion for a new trial. We have been unable to discover any error justifying a reversal of the judgment or the reduction of the crime to that of murder of the second degree. We are therefore compelled to conclude that the judgment and order denying the motion for a new trial must be, and each of them is, affirmed.

CARTER, Justice.

GIBSON, C. J., and SHENK, EDMONDS, TRAYNOR, SCHAUER, and SPENCE, JJ., concur.