People v. Williams

At approximately 9:15-9:30 p.m. the night of December 9, 1968, Brian Clay left his fraternity house on 28th Street, near the University of Southern California campus, to go to the car of a fraternity brother. The automobile was parked at the curbing near the intersection of West 28th and South Hoover Streets in Los Angeles. Defendant Tumbeau was granted immunity pursuant to Penal Code, section 1324. He testified that he, Jordan and appellant were walking up 28th Street when the victim was seen coming from the fraternity house and going toward the parked car. Appellant pulled an “instrument” (later identified as a two-edged knife) from his waistband or trousers’ pocket and ran forward. He reached over and grabbed Clay and was heard saying something about “keys” and Clay saying “no.” Appellant then stabbed Clay and ran back toward Tumbeau and Jordan, holding a knife in his hand.

On this evidence, Turnbeau would not be an accomplice. He was present at the time of the homicide, but had nothing to do with it except to witness it. Although Tumbeau was indicted for murder along with appellant, such fact would not, alone and as a matter of law, establish him to be an accomplice. People v. Lawson (1952) 114 Cal.App.2d 217 , 220 [ 249 P.2d 850 ]; People v. Johns (1945) 69 Cal.App.2d 737 , 747-748 [ 160 P.2d 102 ]. It is true that other evidence offered would, if believed, have established that status. The trial court instructed the jury on the law of accomplices, properly leaving Turnbeau’s status for the jury to determine. The jury very well may have concluded, on the evidence before it, that Tumbeau was not an accomplice, making Penal Code, section 1111 inapplicable.

Even if Tumbeau were an accomplice, however, there was ample corroborative evidence. People v. Henderson (1949) 34 Cal.2d 340 [ 209 P.2d 785 ]; People v. Trujillo (1948) 32 Cal.2d 105 , 110-112 [ 194 P.2d 681 ]. For example, Mrs. Basse saw the crime occur, though not realizing it was a stabbing at the time. Thus, she saw three young Negroes by the car, one at either end and one leaning inside. The one leaning inside backed out and walked to the comer. A fourth young man was then seen to back out

Appellant argues that Turnbeau’s testimony should, in any case, have been rejected as inherently improbable because of inconsistencies and impeaching evidence. However, the weight to be given testimony is for the jury to determine in the first instance, and for the trial court in the second instance, which it later did when it denied appellant’s motion for a new trial. We cannot now reweigh it.

Appellant next contends the trial court erroneously admitted evidence that appellant brandished a kitchen knife later the night of the murder. Evidence showed that, after the stabbing, Tumbeau and Jordan ran. Tumbeau started to run in the direction of his home' but stopped off at “Frank’s house.” Frank said appellant was upstairs. Appellant soon came down. They talked awhile and appellant then went to the refrigerator, got out some hamburger and started cooking it. Frank said he should not do this, as the meat belonged to someone else. Another man soon entered the apartment and appeared upset by the incident. He told appellant to leave. Appellant “got mad and he grabbed a knife and he approached this guy that was at the door.” Tumbeau stepped between them; he and appellant left soon thereafter.

This testimony was admitted after a discussion with counsel at the bench. The court concluded the evidence was admissible on the issue of “intent,” and thereafter advised the jury it was received for a limited purpose relating to appellant’s state of mind. The court gave the jury a formal instruction concerning it at the trial’s conclusion.^[2]

Evidence of a second crime need not be excluded merely because the second crime occurred after the crime charged. People v. Griffin (1967) 66 Cal.2d 459 , 464-465 [ 58 Cal.Rptr. 107 , 426 P.2d 507 ]. Respondent relies upon such cases as People v. Kelley (1967) 66 Cal.2d 232 , 238-245 [ 57 Cal.Rptr. 363 , 424 P.2d 947 ]; People v. Whitehorn (1963) 60 Cal.2d 256 , 262-263 [ 32 Cal.Rptr. 199 , 383 P.2d 783 ]; People v. Covert (1967) 249 Cal.App.2d 81 , 83-89 [ 57 Cal.Rptr. 220 ]; People v. Adamson (1964) 225 Cal.App.2d 74 , 76-79 [ 36 Cal.Rptr. 894 ]; and People v. Malloy (1962) 199 Cal.App.2d 219 , 229-234 [ 18 Cal.Rptr. 545 ] (disapproved on other grounds in People v. Kelley, supra). While we are not entirely convinced that the circumstances surrounding the “hamburger incident” make evidence of it admissible under the rules discussed in these cases, we are satisfied that any error in admitting the evidence, if error it was, does not fall within the rule of prejudice stated in People v. Watson (1956) 46 Cal.2d 818 , 835-838 [ 299 P.2d 243 ]. The chief problem to be resolved by the trial was the identity of appellant as Clay’s assailant. The evidence was not admitted to establish an identification but to show intent, an issue not greatly in dispute. The evidence, both direct and circumstantial, fastening guilt upon appellant was convincing.

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Relying upon People v. Bassett (1968) 69 Cal.2d 122 [ 70 Cal.Rptr. 193 , 443 P.2d 777 ], appellant asserts this court should re-evaluate the evidence and reverse his conviction because the evidence is insubstantial. We disagree. Appellant gives no reason for this assertion and the mere fact that Penal Code, section 1181, subdivision 6, contains authority for this court to act is no reason for doing so. Bassett is not in point at all.

Appellant contends the M’Naghten rule of insanity is wrong and that the trial court improperly applied it. This claim is far-fetched. Appel