People v. Pshemensky

HERNDON, J. Defendant appeals from the judgment convicting him of involuntary manslaughter,1 and argues (1) that the evidence is legally insufficient to support the judgment; (2) that evidence obtained by means of an illegal search and seizure was improperly admitted; and (3) that evidence as to his statements to the police was received in violation of the rules enunciated in People v. Dorado, 62 Cal.2d 338 [43 Cal.Rptr. 169, 398 P.2d 361], We find no merit in these contentions.

Pursuant to stipulation a jury trial was waived and the case was submitted to the trial court upon the evidence taken at the preliminary hearing and the additional testimony introduced by the prosecution and by the defendant at the trial.

The evidence establishes that on the afternoon of September 25, 1964, one Harry Torrey was killed by a bullet fired from appellant’s .22 caliber Winchester rifle. The bullet struck the decedent in the neck while he was repairing a television antenna on the roof of an apartment building located in the heavily populated Hollywood area. Appellant at all times freely admitted that on occasion he had fired his rifle at the birds which frequented an avocado tree standing in the direct line of sight between the sun porch of his apartment and the roof of the building on which Mr. Torrey met his death. By way of defense appellant testified that although he had killed birds both on the morning and afternoon of the day following the homicide, he had not fired the rifle on the previous day. He further testified that although he had a large supply of regu[156]lar .22 caliber ammunition in his apartment, he had used a special “weak-eharge” cap when he fired the weapon into the out-of-door airspace in the vicinity of his sun porch.

The coroner’s report indicates that Mr. Torrey was killed some time between 12:30 p.m. and 4:30 p.m. during the afternoon of September 25, 1964. The decedent’s wife testified that she went up to the roof at approximately 4:15 p.m. to call Mr. Torrey to dinner but did not see him. Later, around 5 p.m., when she became concerned because they had scheduled dinner for 4:30, she again went up to the roof and then discovered his dead body. Appellant offered alibi testimony concerning his activities during the period from approximately 3:45 p.m. until after 5 p.m. which, if accepted by the trier of fact as true, would have tended to prove that he had not been in his apartment to fire the fatal shot during that period of time. . It is immediately apparent that appellant’s contention regarding the sufficiency of the evidence presents nothing for appellate review. “Bach defendant called several witnesses in his behalf in an attempt to establish an alibi. It is apparent the [trier of fact] did not believe these witnesses or the defendants’ version of where they were at the time of the commission of the [homicide]. ‘ The weight to be given to the testimony of the witnesses, whether in support of an alibi or otherwise, and their credibility, present questions for the determination of the [trier of fact] which is binding upon this court on appeal. [Citation.]’ ” (People v. Johnson, 210 Cal.App.2d 273, 276 [26 Cal.Rptr. 614] ; see also, People v. Williams, 53 Cal.2d 299, 303 [1 Cal.Rptr. 321, 347 P.2d 665].)