People v. Seals

SHOEMAKER, P. J. Appellant Donald Seals was charged by indictment with murder, and, after a trial by jury, was convicted of voluntary manslaughter. He appeals the judgment of conviction.

In his opening brief, appellant assigns as error various rulings on the admission and exclusion of evidence, and the giving of certain instructions. In his reply brief, appellant raises the additional contention that the admission into evidence of a tape-recorded statement taken in the manner hereafter described constituted reversible error under the rule stated in two United States Supreme Court decisions rendered subsequent to the filing of appellant’s opening brief: Massiah v. United States (1964) 377 U.S. 201 [84 S.Ct. 1199, 12 L.Ed.2d 246]; and Escobedo v. Illinois (1964) 378 U.S. 478 [84 S.Ct. 1758, 12 L.Ed.2d 977]. This latter contention is meritorious, hence there is no necessity to discuss appellant’s other claims of error.

Early on the morning of March 3, 1963, Mark Bankendorf was driving north on Webster Street in San Francisco. As he proceeded, he heard screaming, and, upon stopping his car, ascertained that the sound was coming from an apartment building located at 1119 Webster Street. He was able to distinguish the words, “Don’t push me; don’t push me.” He looked up and saw what appeared to be two people struggling inside a window on the second floor of the building. He then saw a brown object which could have been a body fall out the window.

Kathleen Genins, a passenger in the Bankendorf car, had also heard the screaming and had looked toward the upper apartment at 1119 Webster Street. She saw a woman outside the window, hanging onto the window ledge and moving from side to side. She also saw what appeared to be the form of a man standing motionless inside the window. Although the man was directly behind the woman and in close proximity to her, he did not seem to be touching her and appeared to have his hands at his sides. Mrs. Genins then saw the woman fall backward to the ground.

Bankendorf sought a police officer and in a short distance encountered Officer Tull. He led Tull to 1119 Webster Street, where the officer examined the woman’s body and radioed for an ambulance. Tull and Bankendorf then entered the apartment building and proceeded to the second floor, where they met appellant at the head of the stairs. When the officer asked appellant what had happened, he said, “How is she? [640]Is she all right?” Bankendorf also heard appellant say, “It was my money, not her money.” Tull then asked appellant why he had pushed the victim out of the window, but appellant did not reply. Appellant appeared to be intoxicated but not actually drunk.