*1 No. 4767. In Bank. Oct. [Crim. 1947.] PEOPLE, Respondent, HILLS, Jr., THE v. FREDERICK R.
Appellant. *2 Hahn, Goldstone, Ross & Simon, Sanford Hahn, Jerry S. S. Giesler and Ward Sullivan for Appellant. Howser,
Fred N. Attorney General, and Frank Richards, Deputy Attorney General, Respondent. for
EDMONDS, J.When charged with the crime of murder degree, the first Hills, Frederick R. Jr., waived a trial by jury. He was convicted of that offense and the death imposed. sentence was appeal His from the judgment and denying from an order a new trial challenges these deter principally minations upon ground that the evidence is support insufficient to the conclusions of the trial judge in regard guilt. to his
The victim of the homicide was Doris Hills, appel- lant’s wife. She was being described as about 5 feet tall and weighing pounds. less than 100 At the death, time of her they living together. were The two sons of couple had parents left the home of their but a daughter, with her hus- child, band and a small were members of the household. appears It that Mr. and Mrs. happy Hills had a married years life until about ago, four quarreled when over marriage daughter, Carol, their age at the of 16. Hills opposed marriage gave necessary but his wife con- argument sent. The forgotten was never and continued to be the cause of much parents. bitterness between the away
Carol married a soldier and while he was on mili- tary duty, baby family she and her returned to the home. discharged Army, 'When Carol’s husband was from the joined them and the three continued to live with Mr. and Mrs: Hills.
Difficulties between Carol and her husband accentuated home, controversy discord the Hills’ and a between Mr. family Hills and one of his sons added to the disturb- son, Richard, money ance. The his father tried to borrow buy an automobile. did refused Hills either not have lpan suggested make the the nec- Richard obtain essary by selling motorcycles. his two Richard bor- amount money dispute rowed the from a friend. The caused hard feelings son, between Hills and his and Richard was ordered out of the home.- He has lived with his aunt since that time. inharmony.
There were other causes for As a result physical difficulties, years Mrs. Hills two or three irritable, nervous' and engaged she her husband many regarding Ap- discussions rearing of children. parently arguments unending. these were brought
Financial matters also about dissension. Hills *3 joint by closed a bank account which had been maintained him deposited money and his wife and in his own name. quarrel A followed, in which Hills claimed that his did wife dollar,” spent money not “know the value of a too much Shortly death, Mrs. overdrew the account. before her inquired attorney Hills regard property rights of an in to her in testimony the event of a Hills divorce. There was inquiries, although knew of these at another denied time he any knowledge of them. night,
Hills admits that he killed his wife on a December given but he has several different versions as to the manner testimony in accomplished. However, which it was Carol, Hills, husband; her is -without conflict as to the preceded events' which the homicide. baby table, making
At consider the dinner Carol’s keep baby quiet, able noise. Her husband told her to “Well,, a prompted say, which Mrs. Hills to that sure is heck kid,” way bring up whereupon of a she walked out of a returned, When the room. Hills went to milk the cows. he reading'a magazine; Carol, her husband his wife young people went baby in room. The were another his magazine later asked reading bed. Hills started why “jumped re- wife she had on” Carol’s husband. She plied that did not him more. There was some she like Hills left the house discussion about the other children. then greenhouse. in cheek the boiler way Upon trial, that, his his Hills declared back checking boiler, across the shoulders and he was struck exactly happened. According to his tes- did not know what seeing timony, thing the next remembered was his light he lying turning on the on the floor of the shed. After listening her happened. Upon tried to discover what had by attempted her hearing any beat, heart and not to revive respiration. artificial down, wonder- up
He then recalled that he walked dug Upon ing next, a hole. cross- what to do and later hole, in burying his wife this which examination he admitted squash patch. was in a to bed without awaken- He then went ing daughter husband. or her morning prepared He asked
The next Carol his breakfast. was, attempting if to hide she knew where her mother went to friends distress from her. Later he and Carol neighborhood, anything if about the asking knew testimony, whereabouts of Mrs. Hills. In his Hills admitted had that he then knew his wife was dead and been buried garden. in the But he declared that at times he suffered “black-outs,” by dusting powder which caused used were by killing bugs greenhouse. him for He attributed memory just happened as to had the shed at loss of what “black-outs.” the time he killed his wife to one of these days homicide, reported to Two after the Hills and Carol report police missing. Mrs. A made Hills was Biehard, son, file, but Hills denied that he was then on any knowledge of it at that time. was committed
It was more than a month after the crime them questioned police. He then told before Hills was table, dinner following “flare-up” at that, his wife’s boiler. he came gone out to take care of the When he had Hills did not see Mrs. house, he went to bed and back to the *4 night during the to check again. got up times He several and he lights were still on back the boiler; each time he came unusual, he if this was not When asked did not see his wife. night at after he read or sewed replied that she often gone to bed. searching later,
Some time he assisted the officers sqnash patch, nor premises, but he did not lead them to the Although he then re- indicate where his wife was buried. test, to one. a lie detector he later submitted fused take result of the test was But when he was informed placed He take another one. unsatisfactory, he declined to his chest ground test hurt upon the that the his refusal him. his heart troubled They months. again him six police did not visit The him night and arrested at 10 o’clock at then went to his home murder. charge suspicion a on test, detector lie morning next Hills refused to take the The do attorneys agreed to so. he but after consultation with his instrument and by given test was the inventor of The present, The were lasted for about two hours. officers as to its given reports various intervals were at progress. he had killed
Following test, Hills told the officers them, night on the his wife. As related the circumstances to he greenhouse to trips crime made of the he several he was visits, while During the last of these check the boiler. across surprise, he was struck greenhouse, great to his around He whirled the shoulders with an iron bar. him at the was unknown grappled person, with the who head, at the losing struck coat, fur time. He felt a awas assailant person times. He realized that his several At that by throat. grabbed woman, said, and he her few moments A was his wife. time did not know she floor. He lying struggling and was stopped later she revive her tried to recognized her as his wife and then and decided dead thought respiration. artificial she and buried bury got a shovel her. He went out squash patch. body was where map a indicated to the officers on Hills They grave. them the buried, would show and told them he place indi- digging at him and started took to his home cated him. denim slacks pair blue and a oxfords pairA of brown fit belonging as the shoes identified Hills
were first discovered. shoes. toes Stockings were stuffed in wife. to his found, clothed body decomposed deeper, About a foot underwear type slacks, a man’s coat, blouse, in a fur grave stockings. body shoes was without shorts. deep. 6 feet 5 and was between *5 repeated given by time he Hills at that In a statement know how did not story before, but said that he he had told wife; bury his also dig grave, him or to long it to took top throwing on the shoes and slacks that he did not recall anything body. that he not take He certain did was to come He call his wife grave. in the did not put the house to her. greenhouse with As go did he out to the there, out nor weeks, he had idea quarreled had he and his wife not pipe. iron why come strike him with an she out and would inquiries as to a any knowledge of his He also denied wife’s realized what property. divorce a division When he and thought appear it done, it best to make stated, he had he he that she left him.
Later, during this he was not statement, same Hills said got sure he went the house her shoes and whether to and slacks them in “it could be.’’ He grave, and threw but any quarrel with his also told the officers that he did not have house; they sitting wrapping wife in were bench greenhouse arguing her, he choked got accompanied him did not her. His wife had when strike They talking check he went out to the boiler. about were ordering Richard she him for Richard out of the berated argument angry house. caused him become so that This strangled he her. days later, DeRiver,
A few in an with Dr. official interview psychiatrist Angeles Department, Hills Los Police said argument he they that and his wife had an while were bed. smoking, got up When and dressed the boiler started he going argu his wife that was with him to finish the said she They through greenhouse ment. came to the shed back argument, which and sat on a bench and continued the was He Richard, for about half an hour. then “blew his about , . “ ” ” Richard damn top Hills had called a God bastard that,” her ten his wife that husband “was times so said her, tussling. grabbed He her and choked while started throat go” let floor of shed. He stated he “never she was on the grave was got her throat. After of her after he hold of cold; he dug, went back to the she was partly he shed Dr. picked up. He told De felt the when he coldness he did wife; hated Rivers he did not know that he think he her, kill nor did he planned believe he had her. intended kill autopsy surgeon testified that because of the decom-
posed body, condition of the he was give unable to a definite cause death. It was not certain that death was caused strangulation; say manual strangula- that manual present, tion but she have died from suffocation. explained way had no of knowing whether Mrs. Hills was dead she buried; possible when she Although was then still alive. there no soil or dirt *6 in. what lungs, cavity remained of the inor the chest bronchial tubes, does not it follow that she dead at the time burial soil, being because the moist, would not neces- sarily have been inhaled. Soil was found in the mouth and eyes, he said, this necessarily would not be conclusive evidence that person was buried would alive. It be possible for soil in person to be the mouth whether the alive dead or when buried.
Upon this judge, evidence the sitting jury, trial a without convicted degree Hills of the crime of murder of the first imposed the grounds death sentence. As for the reversal of the judgment, although maintains Hills that have been strangled, tending this a circumstance be premeditation show or that deliberation. also asserts was error to admit his confessions admissions evidence having freely as voluntarily Finally, made. argues degree greater the record shows crime of a manslaughter. than degree,
To there must constitute murder of the first showing willful, evidence a killing was the result of premeditated deliberate and was accom kill, or intent plished by by torture, poison, wait, means of lying enumerated perpetration committed in the of certain (Pen. Code, 189.) premeditated felonies. or deliberate The § intent, however, evidence, but need not be direct shown “may be proof from and circum inferred of such facts stances as will for such furnish a reasonable foundation ante, ; conclusion.” P.2d (People Eggers, p. v. 676 1] [185 People People Smith, 510]; v. 640, 15 Cal.2d 647 P.2d [104 Cook, People v. Dale, 15 v. 507, 752]; Cal.2d 514 P.2d [102 Machuca, 156, People 7 Cal.2d 158 1014]; 159 P.2d v. [59 62, People Mahatch, 200, Cal. 64 v. 148 Cal. ; P. [109 886] drawing inference 202 P. 779].) The [82 jury, or of exclusively province matter within
701 the trial jury court when a trial has (People been waived. Erno, v. 195 272, Cal. 710].) 279 P. [232 province
It is not the
of this court to determine con
flicts in
evidence,
nor to choose
different infer
between
reasonably may
testimony.
ences which
from the
be drawn
question,
sole
so far as the admissible evidence is con
cerned,
sufficiency
relates to
support
(Peo
its
the verdict.
ple
Eggers,
v.
supra-, People Holt,
59,
v.
90
Cal.2d
[153
21].)
P.2d
ultimate fact found
trial court was
that defendant
guilty
degree.
of murder of the first
If
there is substantial evidence in
support
the record
judgment,
the determination
upheld.
(People
must be
v.
Eggers, supra; People v. Holt, supra; People
Smith, supra;
v.
People v. Wells,
Applying these case, rules to the record in this the evidence as to the relationship wife, between Hills and his and other members of family, up to the time of the homi cide, the manner of accomplishing killing, the means of disposing of the body, the efforts prevent made to dis its *7 covery, and his conduct both prior immediately to and after the crime was committed, a deliberate intention to kill is fairly deducible.
An appellate court’s function is to correct errors of
law; and
jury
where a
has
waived,
judgment
before the
may be set aside
appeal,
it
clearly appear
must
upon
hypothesis
no
is there sufficient
support
evidence to
the con
by
clusion reached
the trial court. The
of fact
trier
is the
sole judge
weight
of the
and worth of the
(People
evidence.
v. Newland,
702 controlling. by upon defendant are
The cases relied
609], the circum
People Kelley,
The and the order affirmed. Spence, J., and concurred.
Gibson, J., Shenk, J., C. CARTER, J. dissent. I majority opinion shred of evi- point fails to to even a
The might premedi- which indicate that this dence homicide Indeed, so, record, I there for, tated. it could not do as read by way premedita- evidence, otherwise, of inference of is Although, majority opinion states, tion or deliberation. as the premeditated intent direct or deliberate need not be shown “may evidence, but of such facts proof inferred will foundation and circumstances as furnish a reasonable conclusion, drawing for such a of inference is a facts,” matter for the trier of the the facts nevertheless circumstances which furnish the “reasonable foundation” present. for the conclusion must be Here one search record in vain them. majority opinion merely upon rests its conclusion
generalization that “from the evidence as to relation- ship wife, between Hills and his his other members of family, up to homicide, the time of the manner of accom- plishing killing, disposing body, means of of the prevent effort to discovery, prior its and his conduct both immediately committed, after the crime was a deliberate fairly intention to kill is deducible.” generalization nothing. Every means scintilla of evi- family dence as to relationship killing indicates that the must unpremeditated. have been concerning steadiness, Facts good character, loyalty family rela- tionships abound in contrary the record and there is no show- ing. Some of these facts will be set forth later. As to the manner of subsequent point indications events, all to the act, commission unplanned defendant of an followed by an protect family by effort to nondisclosure of the homicide. Taking above-quoted general the elements mentioned in the “ by one,
statement one the first is evidence as to the relation ship between wife, Hills members and his other . ” family, up para to the time of the homicide In the third graph majority opinion up it is said that to the time the couple marriage differed daughter, they over the of their apparently happy had a married life. Thereafter home apparently Nothing shown, became discordant. how more ever, period general than inharmony, has occurred such as many assuming at time some families. But even that the very discord was aggravated, proof this would not be *9 704
premeditation. might give fact The mere that the evidence family extremely in- rise to an inference that the life was imagination harmonious, possible no could stretch of the lay inferring a reasonable foundation further that the premeditated. every If rule otherwise, murder was the were premeditation necessarily time motive is shown would be not the law. proven, but such is general statement of The second element mentioned majority accomplishing killing.” of the is “the manner the accomplishing respect The evidence with to the manner of killing nothing upon which an inference to base contains Even if it be conceded that premeditation. of wife, supply that fact not strangled or choked his does term premeditation, “torture” that is element of or of as (People Bender, 189 of the Penal Code v. used in section more 8]). The evidence shows no Cal.2d P.2d 177 [163 body; and buried the than that defendant killed premeditation. deliberation or does not show general statement The next element mentioned is body.” only The with disposing “means of of the evidence secretly body respect disposition of the is that defendant perpetrator of Let this so. fact that a buried it. be body of victim does not homicide buries show that merely effort to con- premeditated. It an was shows ceal the homicide. majority the factual résumé in the
Lest it be inferred from autopsy sur- analysis testimony opinion of the of its might showing geon there from which burial alive that was a pre- inference of inferred, giving rise to a further be thus out that deliberation, pointed it must be meditation or testimony misleading inaccurate. analysis of that testimony of respect majority opinion states, with death; give a definite cause surgeon, that he was unable to by manual caused certain that death was that “it was not strangulation say that manual strangulation; that he could not died from suffocation. present, but she have was Hills way knowing Mrs. whether explained that he had no that she was possible buried; it was dead when she was was in what or dirt Although there was soil then still alive. cavity bronchial in the chest lungs, of the remained of burial time dead at the tubes, it does not follow she necessarily have being moist, would not soil, because the said, but eyes, in the mouth was found inhaled. Soil necessarily be not conclusive evidence this would inbe possible It for soil to person was buried alive. would ’’ person buried. mouth whether the was alive dead when present purport of testi- résumé does not the real This mony, surgeon state the cause which was body could not tell what the condition death and testified direct burial. examination at time of On body “pretty decomposed”; that he well that the death,” give specific, “a definite cause unable to ex- findings suggested a cause. He then there were which *10 my findings this: plained, “Well, conclusion as to the body decomposition does not this advanced state of of the However, tear- findings asphyxia. in the permit of the usual junc- supporting the ing loosening of the fibrous tissue body hyoid major cornu on of the bone and the tion the mobility the consequent right side, the and the abnormal external with trauma due to point bone at this is consistent asphyxia.” testified that pressure subsequent with bones, broken or poison, found no evidence of disease no bullet wound. “Q. Now, asked, the
On cross-examination witness particular your it attracted in this what was that attention by manual possible instance to fact that there was a death the exactly. I strangulation? Well, A. I think don’t recall news- general information, perhaps, from the seems to be In might I I that.” papers read; have am not certain of apparently reply question, words, you the “In found other causing in the death of no evidence of violence or force used you deceased, stated about right, the is that other than what strangulation?” answered, right, and evi- “That is region neck, in trauma dence there was no extended right hyoid on . . . broken. ...” side. bone was not surgeon questioned respecting the was then further mobility hyoid bone, said: “I feel looseness or great pressure being that exerted to there was a likelihood of say bring Q. you with about that looseness. And could not certainty then, particular that in case the cause of death this you? I could strangulation, was due to manual All could A. say particular over finding pressure is that with consistent I area, strangulation Q. question that type. That isn’t the you you asked I with cer- you, Doctor. asked if could state tainty—and dealing we are with here—that certainties strangu- in manual particular
death this case was caused your say No, examination? I can’t that. upon lation based A. only person if say present, I that that was this can bring pressure were alive at the time the were exerted changes, very it could well and should have about such say, for breathing. I am exam- interfered unable to with brought pressure this could not have ple, whether or not Q. you But do victim was dead. patient about after the or this ascertaining of death at all difficulty cause concede decomposition; isn’t that correct? in this ease because of Yes, true.” A. that is “Doctor, question asked,
On redirect examination body you at the determine from the condition of this actually you performed autopsy if this woman was time ? buried, she have been buried alive dead when she was actually way knowing. Q. could have I And she A. have Well, alive? A. I think it is been buried while she was still possible.” recross-examination, stated that
Thereafter, the doctor decomposed tissue dirt the mass of “there was no or soil ’’ finding did not recall lungs, and that he that remained of him eye pointed then out to It was any dirt in the sockets. scalp has face, “The neck and report stated filling dirt it, dirt large black, moist over quantity of mouth,” eye sockets, but he reiterated openings ear larger cavity or in in the chest “there was no soil or dirt *11 lung tissue.” tubes or the bronchial buried was ordinarily person if a asked, He was then “Now would be inhaled dirt, was some alive, while there still body proper? itself system in through bronchial conscious was necessarily. patient If the It varies. A. Not dry, perhaps loose soil were struggling and if the . . lung tissue. . deep into the get of it possible it some is findings are con- your here Q. you Doctor, that say, Would incon- death or finding the cause of only as to sistent with one but—what asphyxia, consistent with A. I it was sistent? said your state- say that Q. you your question again Would is ? consistent was of death was here ment as the cause to what I wouldn’t say that. No, I didn’t finding? A. with no other say that.” following testi- examination,
Thereafter, redirect on is a form “Well, suffocation given by doctor: mony was underlying general asphyxiation. Asphyxiation air, absorption of interference with which is the condition alive person if was body. Q. And a into the oxygen, soil, asphyxiate wet covered with buried and would you say you Q. And I think so. Yes, A. would suffocate? Q. And that eyes? A. Yes. And the in the mouth? found soil was person finding that with the would be consistent necessarily. If this A. Not buried, would it not? alive when go in. open, soil mouth and had his person were dead right.” That is if alive? A. Q. do that he was But he also could recross-examination. made even clearer The matter was You a stated Doctor, just minute here. “Q. Well, now, cause that the your opinion ago professional moment that in injury was an due to a trauma which death was time that hyoid prior to the Now, if that occurred bone. have person would body then the placed grave, in the was neces Well, not they not? A. time, dead at the would might person sarily. person might have been dead. asphyxia. state of in that asphyxiated and live a short time determining that, death Q. way whether You would have no grave being or at place body placed was took while No, the time? A. I wouldn’t.” speculation under indulged in
Although doctor some testimony as a whole prod examiner, from his of the any statements, is obvious analysis under it fair of his more; That because nothing purport just this, give could not body, he decomposed of the condition of the hyoid condition death; the cause of that a loosened strangulation; bone was consistent with death when way or alive knowing was dead whether the victim openings the face buried; presence and that the of dirt a burial than did did not indicate a burial alive more after death. drawing foundation
Such evidence affords no reasonable therefore alive and an victim buried inference that the fact The mere premeditated. the homicide must have been of itself body decomposed does that a has been buried deceased give conflicting to the inferences rise than it could any more buried, alive or that he was dead when causing of an accident happening be inferred the mere negligent or that injured personal injury, either that the negligent. he was not impose irretrievable,
Certainly wrong, terrible and it is *12 decomposi merely burial penalty because the the death impossible body to deter the victim makes it tion. of the therefore alive, and whether she could have been buried mine alive and from facts decides infer a burial the trier of the to pre the further inference of inference draws doubtful wrong glaring it is con The is even more when meditation. “ you question: determine reply sidered that in to the Could actually buried, . . . if this woman was dead when she may surgeon replied, or she have been buried alive?” the actually way knowing.” prosecution’s “I If the have refused way knowing the fact and expert witness had no surely inference, it was not himself to even an to commit inference, from it a further the court to draw the impose foundation premeditation, inference of and on this testimony was penalty. Indeed, expert since the the extreme uncontradicted, conclude that the court was bound to reasonably inference not be drawn. majority of the doctor opinion refers to the statement question,
in “And she could have been buried reply to possible.” Well, “A. I think it is while she was still alive?” qualify frank admissions answer did his other But this History actually way knowing fact. he had no persons suspended where replete with cases of animation possibility there- unwittingly alive, buried and the have upon burial close exists in instance where follows fore statement testified, But and his supposed death. shaken, thought dead when he that he his wife was was not any inference to her, expert and the refused to draw buried contrary. general statement next element mentioned discovery”; prevent its majority opinion is “the effort Certainly the fact that is, to conceal the crime. the effort done conceal what he has of homicide tries to perpetrator require premeditation. show This is too obvious does not a husband fact, In natural reaction of comment. further might killing be to an unintentional of his and father to public family by keeping circumstances from protect apt make an words, In he would be as disclosure. other unpremeditated in the ease of an effort at concealment planned case of a murder. as con- defendant’s Lastly, general mentions statement immediately the crime was after prior to and duct “both conduct showing as reference to the committed.” The point intended to committed crime was before *13 709 mentioned, already inharmony home, the which has in. to differences, although suggestion of financial to the perhaps differences, any were, if in such involved there the sum meager as showing subject on the so and the insignificant so weight. if conceded that there carry But even it be to quarrels, differences, suggestions divorce, of were financial what- alone do not constitute evidence like, and the these killing. the fact be admitted premeditated a Let soever of argu- she had irritable; nervous and Hills was that Mrs. dinner respecting children; that at the ments with defendant “Well, saying, day homicide she the room the of the left on way bring up kid”; a to a and that she a heck of that sure is hotly greenhouse. argued How and defendant later It premediated? to have been prove the does this family possible in more than discord simply shows no for the crime. motive com- immediately after crime was
Defendant’s conduct beyond effort concealment. But doubt an at mitted shows infer not evidence from which to is evidence of concealment fact of the matter is that evidence premeditation. The premeditation of and the writer whatsover proof contains no put finger on opinion has not been to majority of able points which to that element single circumstance even one generalization above discussed. refuge in the taken so has part clearly attempt of the trial an on record shows The premeditation and deliberation a case of make out court to only evidence is sufficient to establish none exists. where murder; it is insufficient establish that the homicide premeditated. deliberate and But the murder was solely degree of the relate to the prejudicial errors asserted judgment re- a reversal if the is warrant and do not crime degree. of second adjudication of murder an duced power my opinion pursuant to the vested It therefore is Code, judgment 1181 of the Penal court-by section in this prescribed penalty by law impose reduced be should that, modified, degree and as so the- the second murder of Bender, v. 27 Cal.2d (People affirmed. judgment should 21].) 59 P.2d People Holt, 25 Cal.2d ; v. P.2d [153 164 8] [163 the facts and discussion of the following full résumé of appeal will demonstrate this presented points law this conclusion: soundness years age, has lived Los 43
Defendant, is about who years 19 1923, In when was year. Angeles his fourth since 710
old, girl age, he married a of the same had three children, William, years who about old and now served Navy during War, Richard, the World now about Marine, Carol, who served in the Merchant who is 19. about always ample family. provision
Defendant made for his grade twenty nurseryman For school education. years acreage nursery, family lived for the used only Nuys. During located near the war defendant not Van nursery night kept worked a shift in the up also day. working plant, Lockheed thus 14 to hours Aircraft According testimony marriage children, always happy, serene, home and- parents their seemed *14 with and harmonious. How- relations friends in-laws were ever, during years the war the wife worried over children. the frail, operations, was small had had several and She and unusually suffering menopause the became while from she appa- Defendant, soft-spoken man, a nervous irritable. rently her, strongly opposed her atti- patient was but he with Marked concerning children. problems tude on certain the age when, the the differences the two arose at between parents, and daughter marry a soldier. Both Carol wanted to particularly objected youth, her because of defendant, yielded mar- attended the when she 16 the wife became Feelings arguments over this event riage. the aroused wiped were never out. she to live with her
After a child was born to Carol came discharged parents was from and when her husband joined family. unhappy life was service, he Their married continually divorce. Defendant and Carol later for sued her way Carol and annoyed by criticisms of the wife’s his hours long child. Defendant’s raising were their husband his children and work, problems with over the combined situation in inharmonious irritability, wife’s created an with son had a difference addition, In defendant home. purchase of a ear. requested Richard over a for loan friendly boy but the remained ordered the the house wife him to him. with see continued in- defendant during period unsettled At some this time but the estate acreage mother, from his nursery herited the reason, perhaps be- not closed. For some the mother was the estate or plan close thought would aid to cause he money might secretly give wife thought because joint changed children misuse funds, or otherwise joint bank account which he an had with his wife to in his own name. There is some evidence that account nursery- wife knew of this. Defendant also discussed with the turning him foreman the business over to for awhile so he together. wife could The wife had take a vacation rights in inquired attorney concerning property of an her divorce, telling attorney event defendant and the friendly. son Richard were not that there was admitted She ground attorney suggested not divorce. The defendant, very talk with seemed to be because the matter minor, agreed. at time to this Defendant one denied and another admitted that of the visit to at he knew attorney. He claimed he did know the wife told community property. she entitled to half of nursery greenhouse, house, contained a lath other out- buildings, large 17-year-old and a boiler house to heat greenhouse. running Defendant this boiler about night hours one out of each 24. It had be checked at more times and giving had been trouble. grandchild dinner December 7, 1945,
At cried parents quiet Nevertheless, tried her. defendant’s wife made a critical remark and Defendant left the room. went out milk the cows. When he returned he and his argument- wife had a discussion children. Defen- about the dant then went to let the cheek the boiler. cows out and to grandchild About 9 o’clock the children and went to bed and prepared the wife for bed. following morning appear
At did not breakfast the the wife *15 inquired and daughter of his to her whereabouts. as daughter She not thereafter found. nor Neither the night. Inquiry her husband had heard disturbance in the relatives, apparently was made of friends and and defendant encouraged Finally police this. the and later were called investigators attorney’s the up from the district office took search. January 14, interrogated
Defendant was at on his home 1946, again January premises and on 17th and 18th. The were searched and defendant was asked to a lie detector take going bed, test. He told the officers that after to he arose night and his checked the boiler two or three times the on light room disappearance; wife’s that the was on in another his each he he did see house, time came back to the 712 night, it
wife; was not unusual read sew at that to go bed; him to morning and for to that the next he asked was. he where she Defendant at first told the officers that test, take and would not the lie detector but later consented laboratory January went 18th. to the crime afternoon January was 19th, police On test told defendant unsatisfactory Defendant and asked him to take another. ground refused on the hurt chest and his heart his troubled him. later, police
The next visit was months June from five They night 19th. at 10 at and called on defendant o’clock they go police said him would like to have with them. theAt taken suspicion station he was of murder. was booked morning, laboratory to the crime about 9 :30 the next or. 20th. lie machine June The inventor of the detector test. Chicago. declined to take a there Defendant and Between 4 and 4:30 in the afternoon counsel arrived his 8 in refused to advise defendant take the About to test. evening that time the inventor of the machine returned and at inventor given defendant consented to a test. It was progress reported at 10-minute his intervals between which he to the officers. It lasted until o’clock. home take him
At that time defendant to told officers body and he would them where of his show he 1945, evening He said that on of December buried. nursery fix to trips had made from the several house to through green- boiler; coming back as he bar; an iron house he was struck across the shoulders with and a fur grappled felt with unknown assailant that he coat; woman found it was a realized with artificial strangled wife; that he tried to revive her respiration proceeded then unsuccessful; but was and that he ground soft. bury spot her in where a home with defendant started
The officers returned pair a dig They uncovered place a indicated him. at stockings stuffed belonged the wife with which had shoes deeper foot pair slacks. About a the toes a coat, a man’s fur decomposed body clothed in a unearthed her slacks. shorts, blouse, type of underwear there took then returned to their automobile officers stated Defendant defendant. detailed statement from more burial complete long him it took he did not know how him. He made struck why idea his wife and that he had no *16 question inconclusive statements on the whether he went back into the house for his wife’s clothes and threw them in the grave completing before it. say He did he that when realized done, thought what he had appear it best to he make away. gone his wife had
After taken, this statement was the officers drove defendant Fernando San for breakfast. in the morning, About 5 21st, they June returned defendant to his home there and questioned again him further. He was interviewed between 9 :30 p. Nuys a. m. and 12:45 m. at City the Van Jail. Some of his statements these several interviews confessions contradictory; were for example, whether he and wife his arguing were outside, when he went and she went with him complete argument, unex whether she came out pectedly. main, In the however, adhered defendant to his original story being greenhouse struck in the unaware and grappling with an unknown through assailant. He insisted out that he had no injuring intention of his wife appalled when found he he could not revive her. At the trial he took the stand witness his own behalf for the first time advanced the further information that he remembered nothing between the time he was struck across shoulders and the time he saw his lying wife on the floor that expe ; black-out, rienced a similar to previously by others suffered him, by caused powder bugs. a certain dusting used to kill trying wife, partially recalled to revive only his but recalled the burial.
The trial court found that the several confessions freely voluntarily statements defendant were made. They objection were received in evidence without his by counsel, procured defendant testified that had been practiced upon mental and physical coercion him police However, sufficiently officials. the evidence supports finding subject. trial court’s on the crime,
As a motive for the the trial court stated he believed a separation defendant knew that from his' wife was give inevitable and that rather than his property, thought expeditious way that the most for him to her; handle money the matter was to kill that he loved than did more the woman who property years. helpmate companion for more than 25 The con finding evidentiary support tention that this lacks must be inevitability separation. sustained. There no evidence of *17 contrary, On evidence to the effect that defendant planned to trip together and his wife take a vacation and that attorney knew she visited the the wife when that she ground change for divorce. The in the bank account was prior killing, apparently made number months to the a of and only money. of a small sum involved the transfer of Members family generous of the testified that defendant was with her regard money property in matters. The which defendant separate mother would his was to inherit from his become shows, argu- So far as the evidence defendant’s property. only relating problems concerned to the ments with wife children. welfare testimony to credit
The trial court refused defendant’s wiped which out certain details that suffered a “black-out" killing. of the The evidence concerning the circumstances rejection theory. justifies the court’s this guilty that he was The found defendant’s contention court manslaughter untenable, in this nothing to be wife that the evidence shows that the was connection stated quarrel during malice a sudden heat of not killed without testimony he and was that his wife passion; that defendant’s gun but the victim quarreling; that no was used had not been believed that the strangled by defendant; that the court was lath house killed her and not out wife was bedroom readily conclude by defendant; that one could as contended grave; placed in alive when she was that the readily people that might it inferred other that unlikely that something killing; it is home knew taking place. did hear what was not and ample circumstantial there is The stated that court further this defen- the belief that evidence which would substantiate depth, grave, 5 or 6 feet in be- already prepared dant had conclusion that killing place, and that was fore the took deliberately than a nothing more less the homicide was carefully and which was premeditated murder planned and degree. the first defendant, murder in craftily a executed greater crime guilty of a finding that defendant evidentiary support. manslaughter has sufficient than provocation" any “considerable evidence of absence of offense to man- reduce the (Pen. Code, §188), sufficient to strangled that the deceased evidence slaughter, acted conclusion that supports the trial court’s “circumstances is, aforethought, with malice attending killing an malignant show abandoned and (Pen. Code, 188; People Bender, heart” v. supra, §§ 178). at p. 27 Cal.2d finding
The further nothing the homicide was more deliberately or less than a planned premeditated murder carefully which was craftily executed defendant, murder of first degree, support lacks because of the ab- sence of evidence reasonably from which it be in- “willful, ferred that the premedi- deliberate, meaning tated” within section 189 of the Penal Code. Only unlawfully where there is evidence that the “intention away take creature,” the life of a fellow was a considered at or intent arrived out as the result of deliberation carried premeditation, degree. can the murder be that of the first merely Where the evidence establishes that there was no con- *18 provocation siderable and that defendant the acted with “an malignant heart,” may abandoned and “im- “malice” be plied,” degree. (Pen. and the murder is of that the second Code, 189; People Bender, ; v. supra, p. at 27 Cal.2d 178 § People Holt, supra, 59, v. 25 87, 90; People Thomas, Cal.2d v.
25 Cal.2d 7].) P.2d [156
In an effort support, to find for the trial court’s conclusion killing that premeditated, the was deliberate and and there- degree, fore of the attorney general first the to the refers trial court’s stated belief that the wife killed in her was bedroom and was alive placed previously grave. when in prepared the But no evidence was adduced facts, of such is there nor to be any found in the evidence basis such a or for belief inference part on the only the trial court. The evidence relative the manner in which killing the accomplished, other than by opening conditions shown the grave, that is contained consistently in the statements defendant. He maintained position the wife; that he had hurting no intention of that strangled she house; outside the that after found unavailing, that his the dug efforts revive her were grave.
The trial in the court’s belief that the wife killed attorney by bedroom and not in the lath house said general to be a reasonable inference which court could opened, grave have drawn from the fact when the stockings them, first, shoes and were and underneath found body argued clothed with the feet bare. It is in have the lath house bare deceased would not come out to taking could not slippers feet. Defendant recall off his wife’s killing, usually and stated that she slippers after wore actually He had what no recollection of If shoes. occurred. had in slain the bedroom thereafter unlikely body, clothed her it is he would have overlooked putting stockings. shoes have removed shoes stockings preparing body with some idea of burial, Although and then abandoned the idea. the court might readily stated that it inferred people that the other in something killing, testimony the home knew about the family any of members of the was that in the noise bedroom clearly parts could have been heard in other of the house. daughter Carol testified that she went to bed about 9 stayed night o'clock the room all her with husband and any baby; heard, screams her mother have could been noisy moving about; that no sound emanated if the Certainly, mother’s room. mother called for daughter would help, the natural reaction of the have only evidence, short, to her assistance. In direct rush evidence, reasonably be drawn from that and the inference beyond killing place is that the took earshot outside an crime was com Moreover, from inference house. necessarily follow that mitted bedroom would Furthermore, premeditated. was deliberate and found, bedroom, she if was killed in the the court the wife as not, found, have, been buried alive. as the court further readily conclude belief that one could The court’s stated grave apparently placed that the wife was alive when testimony misconception purport grew out of hampered surgeon. examination was given autopsy His *19 by body, the he stated decomposition of victim’s the question eyes. the the mouth and Asked he soil in found finding the “And that would be consistent with the replied, would it not?” he person alive when buried was his and had necessarily. this were dead person If “Not he He admitted go in.” also open, could mouth soil place while determining death way whether took had of words, the grave. in In other body placed being was nothing testimony was that plain purport this of was victim that the by either him showed conditions found testi- Such grave. in her living placed when not still subject, on only evidence mony, coupled with the other buried when he dead wife was defendant’s statement that the her, give rise to does not an inference that she was buried only alive. The inference reasonable is that she was dead. support It surgeon’s finds in the further statement that if a struggling victim is conscious when buried and the soil it dry, possible get is loose and into deep lung soil tissue, but that soil in which the deceased was buried seemed moist no dirt was found in the mass of decom- posed lung tissue; also, that the conditions found were con- strangulation type pressure. sistent with In short, only say surgeon body that under the in the conditions by him, found death could or could have been caused strangulation suffocation, way manual had no and he of determining place body whether death took while the being grave. placed testimony in the Such affords no basis for an inference that the deceased was buried alive there- killing premeditated. fore the must have been expressed court’s further belief that defendant had The. prepared grave place before the took stems part from his belief that the deceased was buried alive, for if fact, naturally such were grave would have been prepared prior death. It appears, also from the court’s emphasis depth of he the hole that believed that defen- strength dant did dig not have time and a 5 to 6-foot grave killing. Defendant, after the however, stated that he dug grave after his efforts to failed, resuscitate his wife and there contradictory is no “prob- evidence. He stated he ably” chose particular ground site because was soft. prime life, a man in the to 14 15or hours hardened day labor, experienced through nursery manual his ground work in digging. pressed conditions and He was not reasonably for time and it cannot be inferred that was not physically possible completed grave for him to have daylight. between the time the murder and inconsistency physical The record shows no between facts and the proved uncontradicted statements of defendant. consistently These adhered statements to the fact that defen- plan wife; dant did not want or to hurt that he ap- palled done; when he found what made every They effort support testimony to revive her. find given family regarding friends and members of the defen- family dant’s relations and the steadiness of character long years. period proof conduct over No was ad- *20 718 might reasonably
duced from which it be inferred premeditated. was deliberate or ' n considering In duty the effect of the evidence it was of the trial court “to avoid fanciful and unreason theories able imagination suspicion” inferences and not to resort or (People Holt, 59, 25 21]). v. Cal.2d P.2d “Mere [153 conjecture, surmise, suspicion equivalent of is not proof. reasonable inference and An does not constitute by inference must be the usual ‘warranted consideration of prepensities passions men, particular propensi of [or] . question. . .’ passions person ties or act inis whose ” (Code Proc., 1960.) (People Bender, supra, 27 Civ. v. p. 186.) Cal.2d at from which
Because of the lack of substantial evidence reasonably either formed can be inferred that defendant pre- kill and with deliberately, or carried out the intent to words, judg- meditation, ordinary meaning of those degree finding the first upon ment based of murder of sufficiently sup- evidence, however, cannot be sustained. court, and establishes ports findings the trial the other degree. a murder the second homicide as judgment my therefore, that the should be opinion, It is degree second reducing it to murder of the modified The cause should modified, be affirmed. as so it should pronounce directions to with remanded to the trial court sentencing imprisonment him to judgment for murder law prescribed term prison a state for the degree. the second
Traynor, J., Schauer, J., concurred. October rehearing denied petition for a Appellant’s J., voted for Schauer, Traynor, J., and Carter, J., 1947. rehearing.