People v. Yarbrough

[457]

Opinion

KINGSLEY, J.

Defendant was charged with murder, in violation of section 187 of the Penal Code. After a trial by jury, he was found guilty of voluntary manslaughter, a lesser and necessarily included offense. He was sentenced to state prison; he has appealed; we affirm.

The evidence for the People, if properly admitted and believed, amply supports the jury’s verdict. Accordingly, we summarize it only insofar as is necessary to understand the procedural issues raised on this appeal.

The victim, who was living with defendant, died from multiple blows to the head, inflicted by a blunt instrument. It was the theory of the prosecution, obviously accepted by the jury, that those blows were struck by defendant during a quarrel. Defendant denied quarreling with the victim or striking her on the occasion involved. He offered no explanation for the kind of blow that caused death.

I

A substantial part of the prosecution’s case consisted of the testimony of the victim’s seven-year-old daughter, who was present in the motel room in which the alleged altercation occurred. Defense counsel argues that it was error to admit her testimony because she did not understand the difference between right and wrong or understand the meaning of the word “oath.” However, the record discloses an extensive

voir dire,

during which it became clear that the girl did understand that she should not lie and that she would be punished if she did lie. We cannot say that the experienced trial judge erred in admitting the testimony of the girl.

II

The court instructed the jury on the degrees of murder, on voluntary manslaughter and on involuntary manslaughter resulting from an assault. No objection is made to those instructions. It is argued that the court should also,

sua sponte,

have instructed on involuntary manslaughter resulting from a lawful act. We do not agree. Defendant denied striking the fatal blows; nothing in the record showed any “lawful” conduct on his part that had had any causative effect on the death. There was no need to instruct on a hypothetical situation that was not advanced by either prosecution or defense.