People v. Keelin

Appellant was indicted by the grand jury of Tuolumne County under a charge of murdering one Raymond T. Etherton. He was tried and the jury found him guilty of murder of the second degree. He appeals from the judgment which followed and from the order denying him a new trial.

We may say generally that it was the theory of appellant that on the occasion of the killing Etherton had burglariously entered appellant’s domicile and was in the act of stealing money; that whatever wounds appellant inflicted upon Ether-ton were inflicted at that time and place and that, under the circumstances, the homicide was justifiable. It was the theory of the prosecution that, although some shots had been fired in appellant’s domicile, nevertheless no serious wounds had been then inflicted and that Etherton had left the domicile and been gone therefrom for some time when appellant followed him and fired the fatal shots without excuse or justification. There is in the record substantial evidence in accordance with the theory of the prosecution, which supports the judgment. There is also substantial evidence in the record which supports the theory and the defense of appellant. The errors complained of have to do with the admission of evidence and with instructions given, and these errors are claimed to have been magnified in legal effect by the denial to appellant of his constitutional rights. We agree with appellant that the judgment and order appealed from must be reversed.

In order to present the assignments of error we think it

A Doctor Boice was called. He had performed an autopsy upon the body of Etherton. He testified that he observed on the body the following bullet wounds: One bullet had entered at the left side below the rib cage, traversed upward and to the spine and had shattered into small bits when it contacted the spinal column. It had passed through several loops of intestines on the way. Another bullet had entered below the rib cage, had gone through the liver, severing the main branch of the hepatic artery and had lodged back of the liver. Two other bullets had inflicted only flesh wounds. There was also a large stellate lesion on the forehead of the decedent, presenting a jagged, torn area. Its appearance indicated that it had been made by some type of blunt instrument or, as the witness stated, “it looked like a rock . . . like something a rock had produced. ’ ’ The witness said that, considering that the body of decedent was found on the highway 980 feet from the trailer, he could have walked or run from the trailer house to the highway, although he would have been in great pain; that such a journey would be improbable but not impossible ; that he would have been bleeding profusely; that the witness had found 2 quarts of free blood in the abdominal cavity; that when an artery of that size is bleeding it is improbable that a man would go very far; that if he ran or walked the exertion would increase the flow of blood from the wound. The witness said further that either of the two abdominal wounds could have caused death; that from the wound which perforated the bowel death would be expected within 24 hours, but that, considering the wound that severed the hepatic artery, it would be inconsistent with probability “that he would have lived at all.” Said the doctor: “With either

The Sonora chief of police testified. He said they had arrested the appellant at his trailer house and that a search of the trailer house disclosed a wallet containing something over $60, and a second wallet with $1.00 in it; that, although they had found a bullet hole in the wall of the trailer and several spent cartridge cases and a rifle, they found no bloodstains ; that going down the road toward the highway, which

Two men, a Mr. Johnson, and a Mr. Bezemer, at 5 o’clock on the morning of the homicide had left Sonora and just before reaching the intersection of the state highway with the side road had observed in the darkness what appeared to be the figure of a human being lying on the side of the road. Another figure appeared to be bending over it. They passed the spot and then determined to return and investigate. They then saw the figure of Etherton on the highway and observed, upon the bank, another person, who quickly disappeared. Johnson was the first of the two to testify. He said that he observed the two figures on the highway, one bending over the other and when he had turned his car about and come back to the scene the one that had been standing was on the bank. He could not say whether that person was large or small or whether it was a man or a woman, although it looked to be a man. The figure wore a long brown coat, but he couldn’t tell whether it was a raincoat or an overcoat, it was so dark. He had not noticed whether the figure wore a hat or not and he had not had a look at the features. He said he could not recall anything except that it was someone dressed in a long coat who was on the bank. He said he had asked Etherton as he lay on the road if he had been run over and Etherton replied “No” and said he had been shot. The witness then told Bezemer to stay there while he went to get the police. He drove to Sonora and after the police arrived he left the scene. He bad observed a rock about a foot from Etherton’s body and saw no other rocks in the immediate area. On cross-examination he said as to the person he had seen standing over Etherton that he could not tell whether he was tall or short, heavy or slight. Bezemer next took the stand and testified much as had Johnson. He had seen the figure which had been bending over Etherton, going up the bank. He said the figure wore a long overcoat; that he couldn’t swear it was a man; he couldn’t recollect the color of the overcoat, nor identify the coat as the coat of appellant which was shown to him. He spoke to Etherton and asked him what had happened. At this point counsel for appellant objected that no proper foundation had been laid to introduce any statement of Etherton. Said the court: “Are you going to introduce a dying declaration?” Prosecuting attorney: “Not at this time, Your Honor. [Counsel for appellant] : The answer

“I think you ought to ask him to give all the conversation. A. I said ‘Who shot you?’ He said ‘Prank.’ I said, ‘where does he live?’ He said ‘lives in a trailer court, Indian Trailer Court, or something like that. ’ Q. Did he say how long he had been out on the road? A. He said between two and half to three hours. ’ ’ The witness said that while he talked to Ether-ton nothing was said as to where Etherton had been when he was shot and that the witness had not asked him that.

The next witness whose testimony is pertinent here was one of the two officers whom Johnson had summoned. The officers had come together. Kalakian was the superior and a police sergeant of the Sonora Police Department. His companion, Shelton, was a patrolman. Kalakian said that they found Etherton “lying there [in the road] in a lot of blood. He was covered with blood.” The following then occurred: “Q. Now, did you talk to the man at all on the road? A. I did. Q. And what did he say to you ? A. I asked him what happened to him. [Counsel for appellant] : I take it we can make the same objection and have the same exception? The Court: I will overrule the objection.” The witness then stated that he had asked Etherton what had happened and had been told that he had been shot. The witness continued: “I said ‘how many times and where?’ He said ‘three times in the guts.’ I said, ‘Who shot you?’ He said, ‘Prank.’ I said ‘Prank who?’ He said, ‘I don’t know his last name.’ I said, ‘Where does he live?’ He says, ‘He lives in a trailer house in the Indian Camp.’ When I got that information, I asked, ‘What else happened?’ He said, ‘Then he tried to finish me off with a rock, bash me in the head with a rock, finish me off.’ Officer Shelton was there. He kept questioning him while I went to telephone for the ambulance.” He stated that Etherton was still conscious when he returned, but he

In a statement made by Officers Kalakian and Shelton to Police Chief Campbell, which report, signed by both officers, was later introduced into evidence upon the theory that it constituted past recollection recorded, there was the following statement: “The victim was lying in a pool of blood,

We think the court erred in admitting in evidence the statements of Etherton, and that nothing occurred thereafter to cure the error. As we have noted, when the subject was first touched upon counsel for the appellant objected that the statements were hearsay unless brought within the dying declaration exception to the hearsay rule. This objection was sustained by the court. Quickly thereafter, however, the court announced that it would permit the statements as being part of the “res gestae.” By this we feel sure the court referred to spontaneous declarations, rather than verbal acts. Wigmore, 3d edition, volume 6, section 1745, at page 132, discusses the distinction and quotes the following from Keefe v. State, 50 Ariz. 293 [ 72 P.2d 425 ]:

“There has been such a confusion of ideas and such indiscriminate use of the words ‘res gestae’ that it is almost impossible, on reading the decisions involving this question, to discover the real extent of the exceptions and the principles involved therein. The phrase ‘res gestae’ means literally ‘the thing done’ and it is used in law as meaning the circumstances which are the automatic and undesigned incidents of the particular act in issue, and which are admissible in evidence when illustrative and explanatory of the act. The phrase is frequently applied to statements or explanations made in regard to an act in question by witnesses thereof.

“Such statements or explanations, however are properly divided into two classes, and the admissibility of the respective classes is based upon entirely different principles of law and logic. They may be defined as ‘spontaneous exclamations’ and ‘verbal acts.’ It is generally due to a confusion of these two classes of evidence and the principles governing their admissibility that the conflict between the many apparently irreconcilable decisions has arisen.

“A spontaneous exclamation may be defined as a statement or exclamation made immediately after some exciting occasion by a participant or spectator and asserting the circumstances of that occasion as it is observed by him. The admissibility of such exclamation is based on our experience that, under certain external circumstances of physical or mental shock, a stress of nervous excitement may be produced in a spectator which stills the reflective faculties and removes their control,

so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock. Since this utterance is made under the immediate and uncontrolled combination of the senses, rather than reason and reflection, and during the brief period when consideration of self-interest could not have been fully brought to bear, the utterance may be taken as expressing the real belief of the speaker as to the facts just observed by him.

“Verbal Acts are utterances which accompany some act or conduct to which it is desired to give a legal effect. When such act has intrinsially no definite legal significance, or only an ambiguous one, its legal purport or tenor may be ascertained by considering the words accompanying it, and these utterances thus enter merely as a verbal part of the act. ...”

As to the conditions under which spontaneous declarations may be admitted, the authority referred to says in section 1749, at page 139:

“. . . [T]he statement must have been made under circumstances calculated to give some special trustworthiness to it, and thus to justify us in exempting it from the ordinary test of cross-examination on the stand. This principle is represented, in the present Exception [spontaneous statements] , by the phrase, often repeated, that the statement must from the circumstances ‘ derive a degree of credit independently of the declaration,’ i. e. other than the faith to be given to an ordinary extrajudicial assertion. This circumstantial guarantee here consists in the consideration, already noted (ante, see. 1747), that in the stress of nervous excitement the reflective faculties may be stilled and the utterance may become the unreflecting and sincere expression of one’s actual impressions and belief. The utterance, it is commonly said, must be ‘spontaneous,’ ‘natural,’ ‘impulsive,’ ‘instinctive, ’ ‘ generated by an excited feeling which extends without let or break-down from the moment of the event they illustrate. ’ . . .”

After quoting from many decisions, Professor Wigmore (§ 1750, p. 142 et seq.) summarizes as follows:

“From the judicial expositions the following limitations, and these only, may legitimately be deduced:

“(a) Nature of the occasion. There must be some occurrence, startling enough to produce this nervous excitement and render the utterances spontaneous and unreflecting.

“(b) Time of the utterance. The utterance must have been before there has been time to contrive and misrepresent, i. e. while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance. This limitation is in practice the subject of most of the rulings.

“Furthermore, there can be no definite and fixed limit of time. Each ease must depend upon its own circumstances: . . .

‘1 Thus the application of the principle thus depends entirely on the circumstances of each case.

“ (c) Subject of the utterance. The utterance must relate to the circumstances of the occurrence preceding it.”

As we have noted, the trial court admitted Btherton’s statements over objection and at a time when it had before it only the bare facts that Btherton had been killed by gunfire, and the testimony of the autopsy surgeon which indicated that in the witness’ opinion little time elapsed between the entrance of the bullet that severed the hepatic artery and ensuing profound shock and death. The witness’ testimony on this did not exclude the possibility of the lapse of considerable time. Before admitting the extrajudicial statements it was the duty of the trial court to preliminarily go into and receive available evidence touching the quality of the statements as coming within the spontaneous statement exception to the hearsay rule. This was not done and over objection the conversations held with Btherton were admitted. Twice the objection was made and twice it was overruled. While it was not repeated as to succeeding witnesses, it is not to be held that the objection was thereby waived. Without there being any attempt to qualify the hearsay statements, other than such qualification as was furnished by the testimony of the autopsy surgeon, the extrajudicial statements were admitted as spontaneous declarations. The statements themselves contained much from which it could be inferred that they were not qualified as spontaneous declarations. They were made in response to questions; they were made over a considerable period of time; they indicated at least this much reflection, that when Btherton was asked why appellant had shot him he had replied that appellant claimed he, Btherton, had robbed him of $80, but that the charge was not true. It certainly could be inferred from the defensive matter included in Btherton’s extrajudicial statements that he was protecting himself from a charge that might be made that he had

When at the close of the evidence the cause was submitted to the jury all of the evidence we have related touching the admitted statements as properly qualified spontaneous statements had been received. The question of whether or not these statements qualified as spontaneous declarations was clearly and seriously at issue. Research has not disclosed any ruling by the appellate courts of this state on the subject of whether or not, when conflicting evidence has been received or conflicting inferences can be drawn touching the matter of qualification of spontaneous statements, the ruling of the trial court admitting the statements is final, or, on the contrary, whether or not that issue must be resolved by the jury under instructions by the court defining spontaneous declarations and telling the jury how they are to determine whether or not the statements were qualified; and that if they find them not to have been qualified they are to disregard them. However, we think the issue must be submitted to the jury. We think the ruling of the trial court is preliminary

‘ ‘ The weight of authority in respect to the relative functions of the court and the jury touching the admission and determination of dying declarations is that the court alone shall pass on the admissibility of this character of evidence, and that the jury shall exclusively determine its probative value. . . . Whatever the law may be in other jurisdictions, it is well-settled in this state that it is the function of the trial court primarily to pass upon the admissibility of the alleged dying declarations and of the jury to determine whether they were in fact made under a sense of impending death, and, if so, then to determine the credibility and weight to which they are entitled. If the jury is not convinced beyond a reasonable doubt that the declarant was in extremis and believed at the time that he was, they must, in arriving at their verdict, disregard such declarations. But if, on the other hand, the jury are satisfied beyond a reasonable doubt that the declarant acted under a sense of impending death, they must then determine what facts, if any, are established by his declarations and apply them accordingly. (People v. Glenn, 10 Cal. 32 ; People v. Lem You, 97 Cal. 224 [ 32 P. 11 ]; People v. Thomson, 145 Cal. 717 [ 79 P. 435 ]; People v. Profumo, 23 Cal.App. 376 [ 138 P. 109 ]; Greenleaf on Evidence, sec. 161.)”

Under the circumstances, therefore, we hold that it was incumbent upon the trial judge, having admitted the statements, to submit to the jury under appropriate instructions the ultimate determination as admissibility with instructions that they were to disregard the statements if they determined them not to have been spontaneous declarations. This was not done.

Upon the subject we have just been discussing the record presents a puzzling situation. Although the statements of

“Evidence has been received tending to show that the deceased made a statement concerning the circumstances under which he received the injuries which later caused his death. The evidence of that statement may not be considered and must be entirely disregarded by you unless you find from all the pertinent evidence that at the time the deceased made the statement, he was under a sense of impending death, that he then believed that he was going to die from the injuries thus inflicted, and that he then had no hope of recovery from such injuries. If the statement was made under the conditions I have specified, the jury may and ought to consider it as evidence, ...”

If this instruction had been given at the request of the People only, error would have to be declared because the objection of the defense that the declarations of Etherton had not been qualified as dying statements had been sustained by the court. And since thereafter no further attention was paid to the statements as perhaps constituting dying declarations the defense had had no opportunity to present evidence bearing upon the nonexistence of a belief upon the part of Etherton that his death impended and that he had no hope of recovery. But the defense also asked that the same instruction be given. What occasioned this mutual request does not appear in the record.

It was error for the trial court to submit to the jury the issue as to whether or not the statements admitted in evidence constituted dying declarations of Etherton. Whenever a dying declaration is offered in evidence the burden is cast upon the one offering the same to establish primarily that it possesses the qualifications of such a declaration. To do this the offeror must establish that the declaration was made under a sense of impending death, that the declarant believed he was going to die from his injuries and had no present hope of recovery therefrom. Preliminarily, it is for the court to determine the admissibility of the proposed declaration and it is the duty of the court to inquire into the facts

Appellant contends that the trial court committed prejudicial error in admitting into evidence the written report which the two investigating officers made to their chief. We think this contention must be sustained. This document was admitted after cross-examination of Officer Shelton, the last to testify of the four witnesses who saw Etherton as he lay upon the highway. The two arriving witnesses, Johnson and Bezemer, had said that they could not by any means describe the figure they had seen stooping over Etherton and later ascending and disappearing over the bank of the highway; that they could not be certain whether it was a man or a woman they had seen and could only say that it wore a long overcoat. They had given their reasons for this, that is, that it was dark, they did not get a good look, and were concerned with the man lying in the road. Of course, and properly enough, neither of the officers testified that either Johnson or Bezemer had made statements to them contradictory to their direct statements on the stand, nor was any effort made to impeach either Johnson or Bezemer upon the ground that he had made such statements. Nevertheless, the typewritten and signed report which the two officers gave to their chief contained this matter: “Mr. Harry Johnson stated that he saw a man running from the scene when they first discovered the victim. Mr. Johnson described the man as being elderly, slender built, and wearing glasses.” Appellant was an elderly, slender man who wore glasses, and the sentence we have quoted from the typewritten report was the only evidence of a descriptive nature that identified appellant with the figure seen bending over Ether-

“. . . Even if it be assumed that the circumstances were such as to authorize the use of the letters to refresh the witness’ recollection . . ., the party calling her was not thereby authorized to put the papers before the jury. Such a paper is ‘in no sense testimony. . . . The opponent, but not the offering party, has a right to have the jury see it. . . . That the offering party has not the right to treat it as evidence, by reading it or showing it or handing it to the jury, is well established.’ (1 Wigmore on Evidence, §763.) And such seems to be the fair construction of section 2047 of the Code of Civil Procedure, which expressly declares the right of the adverse party to read the writing to the jury. . . . To permit this to be done by the party producing the witness would open the door to the admission of hearsay and manufactured evidence without limit.” (See also Estate of DeLaveaga, 165 Cal. 607 [ 133 P. 307 ]; People v. Lanterman, 9 Cal.App. 674 [ 100 P. 720 ]; Hawkins v. Samguinetti, 98 Cal.App.2d 278 [ 220 P.2d 58 ].)

Seeking to justify the introduction of this document in evidence, the attorney general here argues as follows: ‘ ‘ The witness testified in effect that the contents of the report were accurate; that the report was made shortly after the occurrence of the offense related therein, and that at the time of the trial he had no independent recollection of the contents of the report. The rule is that a written memorandum which contains a statement of facts which were fresh in the writer’s mind at the time [of] the memorandum may be introduced in evidence as past recollection recorded if the witness at the time of the trial testifies that after looking at the memoranda he is unable to refresh his memory therefrom and is unable to testify independently concerning the facts stated in the memorandum.” We do not read the record as being in accord with these statements as to its contents nor as measuring up to the rule relied upon. The following occurred: “Q. I will ask you this, Mr. Shelton. . . . How much of your testimony that you gave here in Court yesterday and today is based upon this report? A. Quite a bit of it. Q. How much of the testimony that you have given is based upon your independent recollection of events as they happened? A. I believe it’s about half and half. . . . Q. How much of the testimony that you have given, Officer, relative to the statements of either the deceased or Mr. Keelin is based

In our view the foregoing will not support a claim that the witness had no recollection at the trial independently of the memorandum or of the contents thereof. The document was inadmissible and its admission may well have gravely prejudiced the defense. For instance, in addition to the paragraph in which was contained the description of the figure as being “elderly, slender built and wearing glasses” there was the following matter which had not been theretofore testified to: “A bloody rock was found under the victims left hip, with which the victim claimed Frank had used to beat him on the head, trying to finish him off.” Up to that time and on this subject there had been testimony that Etherton had claimed Frank had tried to finish him off with a rock, but there had been none in which he referred to a certain bloody rock found under his left hip and identified as the rock with which appellant had tried to “finish him off.” The significance of this additional hearsay statement

Appellant contends that the trial court erred in admitting in evidence, over his objection, testimony given by him before the coroner’s inquest. In examining this contention it should be stated that appellant was arrested early in the morning of December 5th and was kept in custody until the inquest was held on December 9th at 7:30 in the evening. During that time he had asked for and had been denied counsel. He was produced at the coroner’s inquest by the officers in whose custody he had remained, was sworn as a witness and questioned at considerable length by the sheriff, by the district attorney and by one or more coroner’s jurors. He had at no time been informed of his right to counsel nor had he been taken before a magistrate who might inform him thereof. In fact, he testified that it was during this period he demanded to be allowed to have an attorney and was told by his custodians that the district attorney was his attorney. There appears to be no denial in the record that this occurred. During the trial the People called the sheriff to the stand and began to question him concerning statements made by appellant at the inquest. Objection was made, based on the facts and circumstances we have related, that to permit these statements to be used would violate the appellant’s constitutional right not to be compelled to be a witness against himself. The objection was overruled. Although a transcript of the testimony before the coroner was not admitted in evidence, the sheriff was questioned at some length as to the questions asked the appellant at that inquest and as to the appellant’s answers to the questions. There can be no doubt from the record that a great deal of his testimony before the coroner was thus introduced into the

“The testimony should not have been admitted. The course pursued was in violation of the constitutional right of every person not to ‘be compelled, in any criminal case, to be a witness against himself.’ (Const. Cal., art. I, §13.) The defendant could not, of course, have been called and required to testify against himself at the trial. The guarantee against being so compelled would be of little value if the same result could be attained by the indirect method of compelling him to testify at some antecedent step of the proceedings against him and then offering in evidence his statements so extracted. We do not mean to suggest that under no circumstances can testimony given by a person before a grand jury be given in evidence in a subsequent trial of a criminal charge against him. The constitution protects a person from being compelled to be a witness against himself. If, at the time he appears, no accusation, formal or informal, has been made against him, he does not, in testifying, become a witness against himself. Or if, even though charged with crime, he voluntarily gives evidence against himself, his rights are not infringed by the use of such evidence thereafter. These distinctions are well illustrated by a series of New York cases [citing cases], the result of which is summed up in People v. Molineaux, 168 N.Y. 331 [ 62 L.R.A. 193 , 61 N.E. 308 ], in these words: ‘When a person testified at an inquest as an accused or arrested party, his testimony cannot be nsed against him upon a subsequent trial of an indictment growing out of the inquest, unless his testimony has been voluntarily given after he has been fully advised of his rights and has been given an opportunity to avail himself of them. ’

“Here the defendant, when brought before the grand jury, was in custody under an accusation of guilt of the crime under investigation. Taken into the presence of that body by the sheriff, sworn and examined without the aid of counsel, and without any instruction as to his rights, it

It has been frequently held that a defendant, subpoenaed to testify before a grand jury, who appeared and answered questions in regard to matters on which he was later indicted could have the indictment quashed on application to the court because it was deemed that being subpoenaed to testify before a grand jury investigating a charge or a proposed charge against him was such compulsion that the Constitution was violated. These cases are collated in an annotation appearing in 38 American Law Reports, 2d, pages 225, 300-301. We have no doubt that under the circumstances disclosed by this record the use of appellant’s statements before the coroner at his trial was a violation of his constitutional rights. In saying this we consider what occurred after the coroner’s inquest was held. When he testified before the coroner he had been in custody four days, during which time he had been frequently questioned by the police officers and by the district attorney. They continued to hold him in custody in violation of his right to be taken before a magistrate, to have an attorney and to be informed of his rights, for an additional seven days, at which time he was taken before the grand jury and again examined by the district attorney and various grand jurors. During that examination he was questioned regarding inconsistencies between statements to the grand jury and statements he had made to the coroner. His indictment followed. Appellant did not seek to appear before either the coroner or the grand jury and it is apparent that he did no more than ignorantly submit to being haled about by his custodians. It was not until 12 days after his arrest and detention that he was arraigned in the superior court and counsel was appointed to represent him.

Appellant contends that his long detention without benefit of counsel and his being compelled to testify against himself before the coroner and before the grand jury while that body was investigating the charge of murder proposed to be placed against him so prejudiced his defense as to amount to a denial of his constitutional right of due process. In addition to what has been heretofore discussed, appellant, in support of this contention, further argues that delay in obtaining counsel deprived him of any representative who could act in his behalf while the facts surrounding the killing of Etherton

For the reasons given, the judgment and the order appealed from are reversed.

Peek, J., and Sehottky, J., concurred.