People v. Clark

FOURT, J.

This is an appeal from a judgment of conviction of murder in the first degree.

[526]

In an information filed in Los Angeles County on December 31, 1964, defendant was charged with murdering Marshall Allen Taylor on December 5,1964. (Pen. Code, § 187.) A jury trial was duly waived and the judge found defendant guilty of murder in the first degree and sentenced defendant to the state prison for the term of his natural life. A motion for new trial was denied. A timely notice of appeal was filed.

A résumé of some of the facts is as follows: In March 1964, defendant and a friend, Gary Prothero, rented an apartment, which was located over a garage, from Mr. and Mrs. Taylor. The Taylors had two sons. One of the boys, Marshall, aged 14, was engaged by defendant in a homosexual love affair. Defendant and Marshall went to movies on weekends and on occasions Marshall spent the night in the apartment and slept with defendant.

Prothero and defendant were employed at Best Lathing Company. Prior to December 5,1964, work was slack and they worked only a day or so a week. Prothero told defendant that he (Prothero) was going back into the Navy. On Monday, prior to the killing of Marshall, defendant asked Mrs. Taylor if he could stay in the house after Prothero went into the Navy and she replied in the negative.

On the evening of December 4, 1964, defendant gave Prothero $7 to spend the night elsewhere and, in effect, told Prothero that he did not want him around the apartment that night. Defendant stated that he was going to tell Marshall that he (Clark) was going to leave. Prothero thought that this might generate an argument and perhaps some trouble, and he did not want to be around the apartment. Prothero spent the night in a hotel in Long Beach.

Prothero returned to the apartment at about 9:30 a.m., December 5, 1964. The door to the apartment had two locks on it, one near the door knob and a second one which was activated with a separate key. Ordinarily defendant and Prothero used the doorknob lock. However, when Prothero went to enter the apartment the second lock was engaged and he was unable to gain entrance to the apartment. Prothero went downstairs and had a cup of coffee and talked with Mrs. Taylor for about an hour. He went back to the apartment and again tried the door and again found it locked. At this time he smelled gas whereas he had not the first time he had been at the door. He then went downstairs to Mrs. Taylor’s house and asked for a key to the second lock on the door. He secured the key and entered the apartment. The smell of gas was