People v. Deacon

DOOLING, J.

Appeal from a judgment of conviction of second degree murder and from the order denying a motion for new trial. The principal complaint is the alleged misconduct of both the trial judge and the prosecutor. Also cited are an instruction on first degree murder and the admission of certain evidence.

Dana Clark died of knife wounds on August 12, 1951, in appellant’s San Francisco apartment. Deacon and Clark had been friends for a number of years. Clark was an excessive drinker. They were together on the day in question and, with three other people, had some drinks in a bar. About 9:45 p.m. on the night in question Deacon went to one Vaughn’s apartment, which was in the same building as his own, to get some ice. The ice was for Clark who had been beaten by Deacon in Deacon’s apartment. Deacon said he had “blown his top.” Vaughn went back to his own apartment and Clark remained in Deacon’s. At about 11:50 p.m. Vaughn saw Deacon again when Deacon rang Vaughn’s doorbell and said “Call an ambulance” and “Dana is dying” and 1

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I think I have killed Dana. ’ ’ Vaughn then went to Deacon’s apartment and found Clark dead, lying on his back on the bed with a wound near his heart. Vaughn identified a knife that he had used in cracking the ice earlier in the evening and said he had left it on the sink where he had used it. Deacon never told Vaughn that Clark had killed himself. Clark had expressed a sullen wish to kill bimself after he had been beaten. Vaughn did not see any knife when he went into Deacon’s apartment after Clark had been stabbed. The knife was found in the kitchen and was clean. The autopsy showed that, although there was only one surface wound, there were three internal wounds indicating that the knife was

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thrust three times through the same opening. It was the expert’s opinion that it was “very unlikely” that the wounds were self inflicted. ' Deacon testified that Clark was drunk and despondent and that finally he, Deacon, threw the knife .to Clark and told him to use it or stop talking about it. Deacon further testified that Clark did use it himself, which Deacon saw and Deacon then grabbed the knife, -withdrew it and threw it into the kitchen. He had felt he was morally responsible for the death, but he did not kill Clark. The cause of the previous beating given Clark by Deacon does not appear other than he “blew his top,” nor is there further motive shown for a killing. The evidence however is very convincing of a killing rather than a suicide especially in light of the expert’s testimony and Deacon’s admission to Vaughn, immediately after Clark’s death: “I think I have killed Dana.”