People v. Butterfield

THOMPSON, J.

The defendant has appealed from a judgment of conviction of murder of the second degree which was rendered against him pursuant to the verdict of a jury.

The cause was previously heard by this court on a petition for a writ of

coram nobis (People

v.

Butterfield,

37 Cal. App. (2d) 140 [99 Pac. (2d) 310]), which was granted on the ground that the defendant was wrongfully induced to plead guilty to the charge of murder by his cellmate named England, and thus prevented from having a trial by jury. The defendant was subsequently permitted to withdraw his plea of guilty and he thereupon entered a plea of not guilty. He was formally tried with a jury which rendered a verdict

[727]

against him of murder of the second degree. Judgment was duly rendered and he was sentenced to imprisonment in San Quentin state prison for the term prescribed by law. From that judgment he has appealed.

It is contended the verdict and judgment are not supported by the evidence and that the trial judge was guilty of prejudicial conduct in propounding certain questions to the defendant in the course of his examination as a witness at the trial.

Briefly, the facts upon which the defendant was convicted are as follows: He was living with Ms parents on a farm in Lake County which is situated three miles from Kelseyville. He was employed elsewhere as a farm hand. Several witnesses testified to Ms previous good character for peace and quiet. He was, however, addicted to the inordinate use of liquor under the influence of which he was sometimes quarrelsome. He was once convicted of the theft of an automobile under section 503 of the Vehicle Code. He was impeached at the trial by evidence of that conviction. The deceased was an itinerant fruit picker in poor health who lived with a partner in a temporary camp near Kelseyville. The evening before the homicide the defendant met Abraham Lee, for the first time, in Kelseyville. They spent the night together, on good terms, drinking beer in various saloons. After midnight they started together for their respective homes. The deceased was carrying a loaf of bread and a jug of wine. Neither of them was armed with a weapon. They followed a roadway paralleling the creek a short distance therefrom. The defendant stepped on a stone and stumbled against the deceased, who cursed and struck him with Ms fist, inflicting no injury. The defendant had no fear of the deceased, but he picked up a stone or a club and struck his companion on the head above his left ear. He fell to the ground and remained there unconscious. The defendant examined him and dragged his body from the roadway where he left it and then started toward home. After traveling a couple of hundred feet, he returned and dragged the body further into the bushes adjacent to the stream, where he covered it with brush. He then proceeded to Ms home, taking from a bureau drawer $28, which he had placed there. He drew a cheek in favor of Ms mother on an account in a Kelseyville bank, and handed it to her, telling her to forward the cash