People v. Sexton

SHENK, J.

This is an automatic appeal from a judgment imposing the death penalty after a conviction of the murder

[363]

of Harry Harames committed in the course of an attempted robbery. A motion for a new trial was denied.

The defendant Sexton and Dominick Louis Silva were jointly charged with the murder of Harry Harames on September 2, 1949, in Alameda County. They were tried jointly. The jury returned a verdict of guilty as to each defendant but recommended life imprisonment as to Silva, who has not appealed. Sexton will be referred to as the defendant.

The sufficiency of the evidence to support the verdict of guilty is not questioned. It is contended that misconduct of the district attorney, error in the admission of evidence,' and error in certain instructions prejudiced the defendant’s chances for a recommendation of leniency by the jury.

The undisputed facts may be summarized briefly. The defendant and Silva were each 21 years of age. They- had been boyhood friends and during adolescence had spent some time in a home for feeble-minded children in Sonoma County, Silva for a longer period than the defendant. On September 1, 1949, and prior thereto the defendant and Silva were employed by a butcher in Hayward. On the evening of that day the defendant was required to deliver meat to a restaurant in Oakland. Silva and Roberta Edwards, a girl of 17, accompanied him in his employer’s 1939 Cadillac automobile. They delivered the meat and then whiled away a few hours in Richmond. About midnight they drove to a place opposite the grocery store of Harry Harames known as the Main Fruit Market on East 14th Street in Oakland. They parked and watched the market until closing time, about 2:15 a. m. (Sept. 2d) when Mr. Harames left his store in a panel truck to go to his home at 53 Estabrook Street in San Leandro. They followed, passed the truck and took up a position opposite the entrance to Estabrook Street from E. 14th Street. Their purpose was robbery. Mr. Harames arrived at his residence, stopped before his closed gate and descended from his truck to open it. As he was doing so, the defendant and Silva left the parked Cadillac car and proceeded toward the truck. The defendant approached the truck at the left side with a loaded .32 automatic in his left hand. He was left-handed. He accosted Harames, who was again occupying the driver’s seat, and told him it was a “stick-up.” Instead of complying with the demand, Harames put the truck in gear. A shot was discharged from the gun held by the defendant, which entered Harames’ body. Silva apparently had not reached the right hand side of the truck, which was to be his station, but was