People v. Dawson

Defendant was charged with the crime of manslaughter—the killing without malice of one Eddie Hines. By stipulation he was tried to the court without a jury. He was found guilty as charged and sentenced to state prison. He has appealed from the judgment of conviction and from the orders (1) refusing to set aside temporarily his plea of not guilty for the purpose of moving to quash the commitment, (2) denying his motion for a new trial, (3) refusing his application for probation, (4) denying his motion in arrest of judgment.

Defendant relies for reversal of the judgment and the order denying a new trial chiefly upon the specification that the evidence is insufficient to sustain the judgment of conviction and that the court abused its discretion in denying the motion for a new trial.

At the date of the occurrence that is the subject of this opinion Walter A. English, a geologist, was the owner of the building and premises designated as No. 114 South Beaudry Avenue in Los Angeles. The building was not residential property but was maintained by Mr. English for business purposes, having therein his offices and laboratory together

On the property line between Nos. 114 and 120 there is a cedar hedge about 10 feet high. A chicken wire fence is interwoven in the hedge. There is a hole in the wire fence so close to the ground that one must go on hands and knees in order to crawl through it.

The evidence on behalf of the prosecution came from three boys who were the companions of decedent and from police officers who testified concerning statements made by defendant.

The evidence of decedent’s three companions was adduced mainly by leading questions of the district attorney which called merely for affirmative or negative answers or practically put the answers in the witnesses’ mouths. No objections were forthcoming from defendant’s trial attorney—not those representing him on this appeal. The questions put to the three witnesses were similar in form and their testimony is so nearly identical that, as would be expected due to the character of the questions, it might have come from only one person instead of three. It may be epitomized in one statement without relating the evidence of each witness separately. The three witnesses and the decedent resided near the Beaudry Avenue buildings in question. Two of the boys were 14 years of age, the third was 15. They testified substantially as follows: About 2 or 3 o’clock in the afternoon the four boys decided to go to the building at No. 114 South Beaudry Avenue and play hide and seek; decedent, Eddie Hines, was to be “it”; they went to the front of the building; Eddie was left standing by a tree with his arm over his eyes as the other three boys departed; there was a hole or window in the front of the building at No. 114, about on a level with the ground, which opened into the basement; there was a screen that had been torn from in front of the window but they did not

The report of the autopsy surgeon given at the coroner’s inquest was received in evidence by stipulation. The report showed that decedent was a Negro 14 years of age, height 5 feet, weight 85 pounds; there was an opening in decedent’s body, circular in shape and 3/16ths of an inch in diameter, located in the upper portion of the chest, 2^4 inches to the left of the midline and l%ths inches below the shoulder line, almost overlying the clavicle; posteriorly, in the left side of the back, there was a bulging area 3 inches to the left of the midline and 4 inches below the shoulder line; the bullet was found to be lodged beneath the skin in the bulging area above described.

A police surveyor testified as follows: The vent leading into the cellar of the building at No. 114 is 2.3 feet wide and 1.4 feet high; the lower edge of the vent is 1.4 feet above the ground on the outside and is 5.8 feet from the floor of the basement; a bush covered the vent; evergreen trees and a chicken wire fence extended along the south property line of No. 114; one can see through the trees; there are two

The evidence of decedent’s father related to his age, weight and grade in school and shed no light upon the incident that resulted in his son’s death.

Police Officer Shinbane testified that as he was passing the premises in question he heard a shot and saw decedent stagger to the pavement; someone was holding the boy’s head; he walked up the steps and found defendant with a .22 caliber automatic in his hand; defendant gave the gun to the witness and stated to the officer that there were some prowlers on the place, a couple of them were still in the building, and he had shot the one in the front of the building; he did not say he had been threatened or he had shot in self-defense.; he said he had come back from a trip and had found someone had been burglarizing the place; the witness did not go into the basement to ascertain whether any persons were there or to observe the conditions in the building.

Officer Harry Fremont testified that he and his partner, Al Shambra, answered a call at 120 South Beaudry Avenue; he allowed defendant to change his clothes and then they proceeded to the city hall; defendant made a statement to the officers in which he said he and Mrs. Dorn, his business associate, had returned from a trip to a mining project; he had been absent three days; he was the caretaker of the building at 114 South Beaudry Avenue, the owner of which was then in Alaska; he noticed a screen had been torn away from a vent in the building and while he was engaged in preparing a covering for the window from which the screen had been torn Mrs. Dorn called to him that three or four boys, either Mexican or Negroes, were entering the building; he left his work, procured his gun, and when he ran out through the front door he saw a boy standing by the vent; defendant yelled to the boy and the boy started coming toward him; defendant was behind a hole in a chicken wire fence between two cypress trees; the boy kept coming toward him and he fired the shot. The officer identified a photograph of the vent, showing the screen that had been torn away, the picture having been taken after someone had nailed boards over the vent; he also

Defendant’s testimony was as follows: He was the custodian of Mr. English’s business building at 114 South Beaudry Avenue, and had possession of keys to the building; each day while he was in Los Angeles he opened Mr. English’s mail, removed checks therefrom and forwarded them to Mr. English in Alaska; he and Mrs. Dorn left for a trip to their mining project on July 17, 1947; before leaving he made a careful examination of the building inside and outside and observed that the wire screen which covered the window leading into the basement was in place; they returned to Los Angeles on July 22d, arriving at the premises in question about 2 o’clock p. m.; they discovered that their equipment stored in the rear of the premises at No. 114 had been tampered with; large latches on a concrete vault in which his electric dynamo was situated had been “thrown”; they immediately inspected the premises finding that the building had been burglarized and that entrance had been made through the window leading into the basement; the wire screen which had been securely fastened on July 17 had been' torn off; cabinets and drawers in Mr. English’s laboratory .had been opened and the contents strewn about; locks had been tampered with and the contents of the premises were in great confusion; a microscope belonging to Mr. English was missing; there was a fresh gouge mark where an attempt had been made to “jimmy” the hasp of the vault; the door from the photographic dark room had been forced and a light was burning in the room; the keys on the typewriter had been jammed in a bunch; keys with identification tags were scattered over the floor; drawers of steel filing cabinets had been opened and the room was in a state of disorder; contents of a Gladstone bag had been scattered; his steel tool box had been dragged out and opened; rough

As reasons, in addition to the testimony above outlined, for defendant’s fear that he was about to be attacked, evidence was introduced concerning previous disturbances, robberies, burglaries, assault with a deadly weapon and other crimes in the neighborhood committed by juvenile gangs and others; a robbery had been committed in a store only a short

Defendant did not tell the police officers the microscope was missing. His explanation was that he did not want to tell everything to Detective Fremont because he did not have confidence in the latter, since on the trip to the jail Fremont had said: “I am going to make it my business to send you to San Quentin because I have a boy 13 years old.” He was practically corroborated by Fremont who admitted that he said “Well, you ought to be in San Quentin. I have a 13 year old boy myself. ’ ’

At the time of the shooting defendant was 58 years of age; his health was poor; he drew permanent and total disability payments from the government and from an insurance company for chronic arthritis and suffered from hernia which required the wearing of a truss; he also suffered from heart trouble. Proof of defendant’s condition came not only from him but from reports of the United States Veterans’ Bureau which were received in evidence: (1) rejecting his application for United States Government life insurance because of disability consisting of “myocarditis, chronic, with partial heart block”; (2) awarding disability allowance; (3) awarding a pension for “heart disability” and for “disability of orchitis, chronic, which have been rated as permanently and totally disabling.” In addition defendant has a large inguinal hernia and an incipient umbilical hernia which require his wearing a truss. At the time in question he was also suffering from an injury to the bone sheathing of his left arm. The foregoing evidence was not contradicted or even questioned at the trial.

Mrs. Dorn’s testimony corroborated defendant’s evidence as to the occurrences after their arrival at the premises from

Mr. Aufderheide, who resided at No. 122 South Beaudry, which is the south half of the duplex in which defendant lived, testified that between 9 and 9:30 o’clock on the morning of the day of the shooting he had seen four boys on the premises at No. 114, and identified decedent, Eddie Hines, and two of his afternoon companions as three of them; he could not identify the fourth; just before the shot was fired he was sitting in his living room and heard footsteps in No. 120; he ran out through the front door; just before he reached the door he heard defendant shout “Stop” and a phrase which was indistinct, and then the shot was fired. He also testified he knew of a number of arrests that had been made at No. 114 and he had called the police a number of times himself because of drunken persons sleeping on the premises; in March, 1947, he saw the dead body of a murdered man in a car in front of No. 114.

Mr. English testified that one of the considerations for taking defendant as a tenant was that the latter would look out for the property and see that it was not burglarized or do something about it if it was; the building had been burglarized twice and the people who previously occupied No. 120 paid no attention to the burglars although they admitted they had seen them. Mr. English described the condition of his premises when he returned. He stated the Stan microscope, two fountain pens and a clinical thermometer, some books, scales and other items of property were missing, also his safe deposit key, the key to the vault in the building and keys to other doors.

Several witnesses testified that defendant’s reputation for peace and quiet in the neighborhood was good.

The evidence shows that defendant was at first resisting an attempt to commit burglary, a felony, and intending to arrest the offender, there being reasonable ground to apprehend that Eddie Hines designed to commit the crime and that there was imminent danger that such design would be accomplished. An instant later defendant was lawfully resisting another public offense, to wit, an assault upon himself. In defendant’s practically helpless situation his resistance was no greater than was sufficient and necessary to prevent the assault upon him. Defendant was attempting to arrest Hines for what appeared to be an attempt and an intent to commit burglary in defendant’s presence. While defendant did not inform Hines that he intended to arrest the latter he did call upon him to halt. Under the circumstances then existing and owing to the lack of time within which defendant could have informed Hines that he was to be arrested, and the cause of the arrest, the demand to halt was sufficient. In this situation regard must be given to the fact that defendant knew he would be unable to cope with his attacker or to defend himself in physical combat.

Where an attack is sudden and the danger is imminent a person may increase his danger by retreat. In such ease he may stand his ground and slay his attacker even though it be proved that he might have more easily gained safety by flight. (People v. Newcomer, 118 Cal. 263 , 273 [ 50 P. 405 ]; People v. Hecker, 109 Cal. 451 , 463 [ 42 P. 307 , 30 L.R.A. 403 ] ; People v. Ye Park, 62 Cal. 204 , 208; Beard v. United States, 158 U.S. 550 , 560 [ 15 S.Ct. 962 , 39 L.Ed. 1086 , 1090].) Necessity is deemed to exist when an innocent person is placed in sudden jeopardy. “ [W]here the peril is swift and imminent and the necessity for action immediate . . . the law does not weigh in too nice scales the conduct of the assailed, and say he shall not be justified because he might have resorted to other means to secure his safety.” (People v. Hecker, supra, at p.467.)

Defendant had reason to believe, and from all the evidence we must conclude that he did believe, he was in danger of bodily injury which might be serious or even result in his death. An apparent and actual necessity existed which would lead any reasonable man to be in such fear of grave results to himself that he would he justified in resorting to self-defense and to use such force as he believed was necessary to protect himself from the encounter which seemed to be imminent.

The prosecution’s evidence of the events before and at the time of the shooting was the testimony of decedent’s three companions above related which was repeated by them in response to leading questions, as we have already pointed out. The other evidence for the prosecution consisted of testimony of the police officers concerning defendant’s statements made to them. Such statements did not differ from the evidence given by him and Mrs. Dorn at the trial. A careful examination of the entire record, coupled with a consideration of the arguments contained in the briefs, particularly that of the attorney general, has convinced us that the evidence is insufficient to sustain the judgment of defendant’s guilt of the crime of manslaughter. It does not dispel the presumption of innocence nor does it remove the reasonable doubt of defendant’s' guilt which persists throughout a trial of one

Since defendant was in a kneeling position on the ground and entangled in the chicken wire fence, and since the bullet entered decedent’s body 1% inches below the shoulder line and was found beneath the skin 4 inches below the shoulder line it is manifest that Eddie Hines was in a stooping or crouching position at the time the bullet struck him. The downward course of the bullet fully corroborates defendant’s evidence as to the respective positions of himself and the decedent when the shot was fired. This physical fact impeaches the testimony of the three boys that Hines was in a standing position when he received the wound. If he had been standing and defendant kneeling the bullet would have taken an upward instead of a downward course in his body, and if both had been standing it would not have gone downward. The testimony of the boys is contradicted by facts in another particular; They testified that they had not been in the basement at any time previously, yet two of them, according to their own statements, had no difficulty in finding their way up the stairway and out through the back door. Their response to Mrs. Dorn, when she asked where they were going, that they were “going out the back door,” indicated their familiarity with the premises. The police surveyor stated that anyone going from the basement to the first floor would not have a straight exit but would have to do some detouring.

The uneontradieted evidence furnishes complete justification for defendant’s adoption of the course he pursued. Defendant having been employed by Mr. English as custodian for the express purpose of guarding the premises, and Mrs. Dorn having seen the boys in the yard and having heard one of them say “Let’s break in here again,” he had reason to believe and evidently did believe that another burglary was about to be committed. Such belief, based on the facts then within his knowledge, justified him in procuring his gun for the purpose of protecting the premises from depredations similar to those that had been committed during his absence at the mine and on other previous occasions referred to in the evidence. He had been told by Mrs. Dorn that some of the persons she had seen in the yard had gone into the building

The evidence given by defendant and Mrs. Dorn was uncontradicted and unquestioned. Their statements made to the police officers and their testimony in court regarding the burglary and the condition of Mr. English’s building were apparently accepted by the officers as true. They made no examination of the premises for the purpose of ascertaining whether defendant’s statements were true. Officers were on the ground a few minutes after the shooting, yet there is no evidence that they entered the building or made any investigation of the burglary.

The attorney general argues that the size of decedent indicated that he was only a boy. He was 5 feet tall. Many adults are no taller. Defendant did not have sufficient time to consider whether his assailant was a boy or a man. Furthermore, the abundant evidence of the previous presence in the neighborhood of ruthless juvenile criminals would remove this feature of the argument from serious consideration. We

The judgment and the order denying a new trial are and each of them is reversed. The appeals from other orders are dismissed.

Moore, P. J., and McComb, J., concurred.

A petition for a rehearing was denied October 29, 1948, and respondent’s petition for a hearing by the Supreme Court was denied November 18, 1948. Edmonds, J., Carter] J., and Spence, J., voted for a hearing.