People v. Smith

BROWN (H.C.), J.

Defendant pleaded not guilty to a charge of assault with intent to commit murder (Pen. Code, § 217). The jury returned a verdict of guilty of assault with a

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deadly weapon (Pen. Code, § 245, subd. (a)), a lesser and included offense. This appeal followed.

We have examined the record and find that defendant’s claims of error in the admission of statements, in the search of his person, and in the instructions, are without merit.

Defendant argues that he is entitled to a reversal because certain statements made prior to having been warned of his constitutional rights were erroneously admitted into evidence. The search and the statements referred to were made under the following circumstances:

On the morning of September 28, 1967, Samuel Daniels, the business agent for the Miscellaneous Culinary Employees Union, was at his office conversing with a friend, Jerry Harper. The defendant entered the office with a gun and fired three shots, all entering Daniels’ body. Later that morning defendant approached Police Officer James Toliver who was on duty in the vicinity of Seventh and Folsom Streets in San Francisco and asked to talk to him. Toliver told him to go ahead. Defendant said, '‘I just shot a man.” Officer Toliver, after verifying the shooting, placed defendant under arrest. He then advised him of his constitutional rights and searched defendant, whereupon he discovered one live and one spent .38 caliber shell. Defendant stated that he left the revolver by a telephone booth in a service station near the union’s office. Later, when defendant was informed that Daniels was still alive, he said,

‘ ‘

Take me back and I ’ll finish the job. ”

The only statement made by defendant to the police which was made before he was warned of his right to remain silent and his right to counsel was the statement, “I just shot a man.” Nowhere in the reporter’s transcript is it suggested that the statement was made in response to any interrogation by Officer Toliver or after defendant was taken into custody. Defendant himself testified that he approached Officer Toliver. The admonishment requirements of