People v. Hathcock

[648]

Opinion

GARGANO, J.

The defendant was convicted of perjury in violation of section 118 of the Penal Code. The facts upon which her conviction was predicated are substantially as follows:

On the last day of January or the first day of February 1968, Barbara Simmons was driven from Fresno to Madera County and shot to death. Sometime later appellant, who was the wife of one of the suspects, Weldon Lee Hathcock, was granted immunity pursuant to Penal Code section 1324 from prosecution for any offense arising from the murder. Thereafter, she gave a written statement to the district attorney implicating her former husband in the killing. Appellant also testified as a witness for the prosecution at Hathcock’s first trial; that trial ended in a mistrial.

At Hathcock’s second trial, appellant was again called as a witness for the prosecution. She testified that her former husband ordered her to drive the murder victim and another man to Madera County. She said that when they arrived near the place where the murder occurred, she was told to stop the vehicle, and the two men and Barbara Simmons got out and walked several feet away; appellant heard a shot and then she heard several more shots before Hathcock and the other man returned to the automobile and told her to take them home.

After Mrs. Hathcock implicated her husband in the murder of Barbara Simmons, the prosecutor asked her if she had told the defense attorney that her former husband was not involved in the murder; the witness answered in the affirmative; then the prosecutor inquired if what she had told defense counsel was true, and the witness said, “Your Honor, I can’t answer that question truthfully. May I—I’ll have a perjury charge if I do.” Following some colloquy between court and counsel, the court asked the witness if she wanted to consult an attorney before the questioning resumed. The witness said that she did, and the court declared a recess.

On the following day the examination of Mrs. Hathcock was conducted in the presence of her attorney. She was ultimately questioned by defense counsel about the content of a letter she had written to her husband in jail in which she had said, “I know in my heart you didn’t do what they are saying?” Counsel asked her what she meant by that statement, and appellant replied, “Because I knew he didn’t do it.” Upon redirect examination the prosecutor asked, “Mrs. Hathcock, how did you know he hadn’t done it.” She answered, “Because he wasn’t there.” It is this answer that formed the basis for her prosecution for perjury.