The defendant, Lloyd Edison Sampsell (also known as Lloyd Edison Sampsel) was tried by jury and found guilty of (1) the murder of Arthur W. Smith; (2) assault with a deadly weapon with intent to murder one Harley Cook; and (3) robbery in the first degree. To the first two counts of the indictment (murder and assault with a deadly weapon with intent to commit murder) the defendant pleaded not guilty; as to the third count (robbery) he stood mute and the court entered the plea of not guilty for him. During the course of the trial, however, the defendant took the stand in his own behalf and admitted that he had planned to, and did in fact, rob the Seaboard Finance Company, a corporation, located in San Diego.
On the morning of March 27, 1948, the defendant and a companion (Clarence [Ben] Richardson) went to the offices of the Seaboard Finance Company at Second and B Streets in San Diego for the admitted purpose of robbery. The defendant was armed with a gun which he exhibited to the employees
Defendant testified voluntarily and freely in his own behalf, telling of the robbery in narrative form, and insisted on relating his entire criminal record although he was informed that it was not necessary for him to do so. He makes no contention that the evidence does not support the verdict, with the exception of the count as to assault with intent to commit murder. His theory is that because of certain errors in the giving of certain instructions and the failure to give others, and because of misconduct on the part of the district attorney, he has been deprived of due process of law and the equal protection of the law. It appears that the deprivation complained of is the possibility that, except for the errors, the jury might have recommended life imprisonment rather than returning a verdict finding him guilty of murder in the first degree without recommendation.
The applicable instruction, as given, is as follows:
"Murder is classified into two degrees, and if you should find the defendant guilty of murder, it will be your duty to determine the degree of the offense, that is, whether first or second degree.
"Before you may return a verdict in this case, you must agree unanimously not only as to the innocence or guilt of the defendant, but also, if you should find him guilty, as to the degree of his offense.
"Although there are two degrees of murder, the evidence in this case is such that either the defendant is innocent of the charge of murder or he is guilty of murder in the first degree, for murder which is committed in perpetration of a robbery is murder of the first degree, whether the killing was intentional, unintentional or accidental.
"The law of this state provides that every person guilty of murder in the first degree shall suffer death or confinement in the state prison for life, at the discretion of the jury that finds him guilty. If you should find the defendant guilty of murder in the first degree, it shall be your duty to determine which of the two penalties shall be inflicted, the death penalty or confinement in the state prison for life. If you should fix the penalty as confinement in the state prison for life, you will so indicate in your verdict, using the form that will be handed to you when you retire to deliberate, but if you should fix the penalty as death, you will not specify the death penalty in the verdict. In determining which punishment shall be inflicted, you are entirely free to act according to your own judgment.
"If any individual juror, or the jury as a whole, entertains a reasonable doubt as to which one of two or more punishments should be imposed, it is your duty to impose the lesser of the two." (Emphasis added.)
In this connection, the defendant contends that he has been prejudiced because the jury did not expressly state the penalty to be imposed. (See instruction set forth above.) He states that section 190 of the Penal Code provides that "Every person guilty of murder in the first degree shall suffer death, or confinement in the state prison for life, at the discretion of the jury trying the same; ..." and that it is unconstitutional,
The same instruction, with one immaterial exception, as that given by the trial court as to the form of verdict, was requested by the attorney for the defendant and "refused as covered." After the sentence reading "... but if you should fix the penalty as death, you will not specify the death penalty in the verdict," defendant's request contained the following sentence "and you will say nothing about punishment in the verdict." (Emphasis added.) There was no request by the defendant for an instruction that the verdict as to penalty (or as to guilt or degree) must express the unanimous decision of the jury, although such an instruction was given by the court. There was a request that the jury be polled as to its verdict on the murder count, and on the count of assault with intent to commit murder. As to both counts, the poll showed a unanimous jury. Polling was waived by the prosecution and the defense as to the robbery count.
It would seem that in the present case, even under the view taken by a minority of this court (see dissenting opinions, People v. Williams, 32 Cal.2d 78 [195 P.2d 393]) the penalty was left entirely to the discretion of the jury as provided in Penal Code, section 190. The trial court instructed the jury that it was its duty to impose the lesser of the two penalties if any individual juror entertained a reasonable doubt concerning the penalty to be imposed. Andres v. United States, 333 U.S. 740 [68 S.Ct. 880, 92 L.Ed. 1055] relied upon by defendant, presents a different state of facts. The jury, in that case, was told: "And, finally, you will recall I said that you are instructed that before you may return a qualified verdict of murder in the first degree without capital punishment, that your decision to do so must, like your regular verdict, be unanimous." (Emphasis added.)
By the defendant's own admissions, he was engaged in an armed robbery. There is no question but that Arthur W. Smith met his death at the hands of the defendant during the course
Defendant argues that the (chief deputy district attorney) district attorney was guilty of prejudicial misconduct in two instances, both of which occurred during his closing argument to the jury.
It appears necessary to quote the following excerpts from the defense attorney's argument to the jury: "Ladies, you have been asked and you have assumed one of the most difficult responsibilities that any human being can be asked to assume. In the hands of each one of you rests the life of Lloyd Sampsell. A verdict of first degree death penalty can be returned only by unanimous consent. Any one of you jurors can stop that verdict. So each one of you will be individually responsible if that verdict be returned.... Now, as I say each of you ladies will be individually responsible for the death of Lloyd Sampsell, if you should return such a verdict. You can't share that responsibility with your other fellow jurors because you, any one of you, could have stopped it and you failed to stop it. So you, the individual who failed to stop it, have complete responsibility. (At this point, the attorney gave a complete and graphic description of the procedure up to and including the scene in the death chamber).... In some states it has been the custom, when the judge imposes sentence, the extreme penalty, the death penalty, on a defendant, to add to that, `And may God have mercy upon your soul.' Wouldn't it have been much better if we could breathe that breath for the juror who returned that verdict — `May God have mercy on your soul?'" (An objection to this line of argument was overruled.)
The defendant maintains that the conduct of the district attorney might have been cured by a specific instruction to that effect by the court, but that no such instruction was given. (No such instruction was requested.) He contends that the statement made by the district attorney as to the effect of the automatic appeal to this court misled the jury to his prejudice and may have been responsible for the imposition by it of the death penalty. He cites cases to the effect that this court has no right to review the exercise of the jury's reasonable discretion in capital cases. (To that effect, when there is evidence to sustain the jury's finding, see: People v. Adams, 199 Cal. 361 [249 P. 186]; People v. Hill, 22 Cal.2d 863 [141 P.2d 418]; People v. Bautista, 22 Cal.2d 867 [141 P.2d 417]; People v. Berryman, 6 Cal.2d 331 [57 P.2d 136]; People v. French, 12 Cal.2d 720 [87 P.2d 1014].) The defendant, however, made no attempt to object to these remarks during the course of the trial, nor was the court requested to admonish the jury concerning
The district attorney's remarks concerning the function of this court where an automatic appeal is taken and his remarks concerning the probability of parole constitute reprehensible conduct which is not to be condoned. It is only because the evidence in this case so clearly establishes the defendant's guilt that we do not consider that reversible error was committed. We are not unmindful of the fact that the remarks made by the district attorney may have been in response to those made by counsel for the defendant, but we can see no justification for such an argument in the light of the settled rule respecting the function of this court and the provisions of section 3046 of the Penal Code.
The record shows that the evidence was more than ample to support the findings of the jury that defendant was guilty of murder in the first degree and of robbery in the first degree. A reading of the instructions as a whole, in conjunction with the testimony adduced upon the trial of the case, compels the belief that the defendant was accorded a fair and impartial trial. In view of the evidence it would appear unnecessary to discuss defendant's contentions with regard to Count Two
Gibson, C.J., Shenk, J., Edmonds, J., Traynor, J., Schauer, J., and Peek, J. pro tem., concurred.
Appellant's petition for a rehearing was denied March 20, 1950. Spence, J., did not participate.