*1 еx- sumption attorney unduly will interfere with steps occur, appropriate amination. Should such interference may provide doctor with a reason- the court to be taken investigation nature opportunity complete able may have any injuries plaintiff sustained. and extent of respondent are of court, the view that We staying plaintiff proceedings comply all until should directing order her physical to submit to an oral and examina presence attorney, imposed tion her without an unwar right ranted condition on her proceed have case trial. directing respondent
Let a writ mandate issue court to requiring plaintiff allow the case be tried without to submit examination in the attorney. a medical absence of her J., Shenk, Edmonds, J., Carter, J., Traynor, J., Schauer, J., J., Spence, concurred. Apr. No. 5658. Bank.
[Crim. 1955.] PEOPLE, THE Respondent, v. et al., HAROLD JACKSON
Appellants. *2 Sidney Feinberg Appellant for Valentine Hammack C. and Jackson. Appellant
Frances and K. for Newell Carr Robert Winters Lear. General, Linn, A. Brown, Attorney
Edmund Clаrence G. Deputy Attorney Raymond Momboisse, M. Assistant General, Attorney Attorney (City General, Lynch, Thomas C. District County Elkington, As- Francisco), of San and Norman Attorney, Respondent. sistant District EDMONDS, Joseph Lear were J. Harold Jackson they jointly upon charged tried an which indictment kidnaped reward, inflicting Leonard Moslcovitzfor ransom or bodily harm the indict upon the victim. A second count of alleged they conspired ment the crime and to commit deadly weapon armed with a when was were felony prior сonviction of committed. also Jackson’s guilty charged men pleaded. jury A found both as penalty. to the made no as recommendation upon imposed Jackson. The The death trial sentence of the jury “that verdict be modified” judge ordered imprisonment punishment life as to Lear and fixed his at appeal by automatic Jack- possibility parole. without from appeal (b)), and Lear’s (Pen. Code, subd. son § trial for a judgment denying a motion new and an order have been consolidated. сoncerning facts is substantial
The evidence these without conflict: kidnaping, Leonard and
At asserted the time brother, operated business, twin assisted Alfred, a real estate advisory capacity by father, in an Moskovitz. their Maurice financially free Both and Alfred sound and Leonard pressing obligations. from The members of Moskovitz except family unacquainted Lear, Jackson and possibly for a between business transaction years father previously. several January
On 13th, Wednesday preceding Lеonard’s ab- duction, Jackson called at Leonard’s office and introduced himself “Mr. Lund.” He asked to see some real estate arranged to do so the following weekend. On Saturday morning, telephoned he to Leonard and made appointment to meet him a short time later at a designated *3 location. When Leonard arrived, Jackson persuaded him to drive house to a where his wife and assertedly brother-in-law waiting were for them. they
After entered the house, Jackson orderеd Leonard to his pushed remove coat and then him to sitting position a upon the couch. Jackson held his arms as Lear the entered room, brandishing a knife placed which he at Leonard’s saying, throat, peep you you “One out of and are dead.” Leonard’s wrists and ankles were chained and his wallet and papers pocket. removed from his He was then told he was captive to be held until ransom in the $500,000 amount of had been received.
A later, time short chain on one of Leonard’s wrists was removed. At dictation, Jackson’s he wrote a letter to his father, demanding payment of ransom directing and him to kidnapers communicate with the through personal column local newspaper. of a The chains then were refastened plugs placed and ear in his ears and tape adhesive over his mouth. He was taken to the bedroom with the warning not anything”; “attempt to that there were five members of the gang, watching some whom were the house constantly.
When Leonard did nоt office, return to his his father be- police. came alarmed and called Saturday On evening, the first ransom letter was received Leonard’s mother kidnapers police shown to officers. A communication to the prepared telephone officials alerted. evening, In the made Leonard was food and then was living throughout to lie chained on a room mattress in night. Sunday morning a compelled On he was to write describing ransom letter, repeating second demand for money Dur- the manner in which be accumulated. ing he remained That day chained blindfolded. evening, newspaper shown an advertisement a stat- he was family the sum ing could raise demanded but that his not discussion, negotiate. After Jackson and Lear wished some $300,000. sev- agreed Lear to reduce their demands dictated Leonard, specifying eral letters to the method to followed family delivering money. These letters were subsequently destroyed. mailed and Monday morning, message in the appeared On a second notifying acquiescence in their kidnapers newspaper, time demands. Extensive were had at that be- discussions deliver- Lear, tween Jackson and Leonard as to the method of ing money. persuaded previous Leonard them that the they complicated,” suggesting plan was “too instead argument, Lear contact After some Jackson and his brother. agreed. They night public telephone a where drove Arrangements talk Alfred. Leonard was allowed to family with the later. made to communicate house, they When returned to the there was more discussion regarding delivery to be the ran- the method followed plan by money was They a which the som. settled placed specified in two and delivered to a to be suitcases un- telephone Leonard was returned unchained and booth. telephone Lear left to make bound to the bedroom while attempting Upon apprehended to do so. call. He was while kidnaping interrogation by police officers, he admittеd the offi- and Leonard. When the them to Jackson directed living house, found broke into cers only shorts, hiding and Leonard closet room, clad in his *4 in the bedroom. kidnaping a was that the asserted was defense
Jackson’s money from father. Accord- to extort Leonard’s hoax devised by him, he presented had known Leonard ing to the evidence had with months years. He met Leonard a few for several kidnaping plan to work out for accom- purported before the had been chained othеr He denied that Leonard plishing it. day house. at the than on the first knowledge the kid- position Lear’s was he had that no naping appeared until Jackson at the house with Leonard. He testified, however, he assisted thereafter out stepson. of fear for His himself account by in parts events was similar most related to those witnesses prosecution. for kidnaping He was concluded “phoney” unchained there when he observed Leonard jesting when the ransom between Leonard and Jackson regard notes were written. he related the As discussions with delivery agreed money, of the ransom it was that Leonard $100,000 $200,000. was to receive either or points Numerous are made grounds Jackson and Lear as reversing for judgment impor- conviction. The most tant of them sufficiency relate to the evidence show “bodily harm” and prejudicial acts of asserted misconduct the trial attorney. the prosecuting assign- Other challenges ments of error include the rulings upon the admission of jury. evidence and instructions
Section Code, 209 of the Penal prescribes punish- which ment kidnaping for the crime of ransom, reward, extor- [for or robbery], provide tion was amended in 1933 to one convicted of that crime “shall suffer death or punished shall be by imprisonment prison in possi- the state life for without bility of parole, at the jury trying discretion of the same, person persons cases which the or subjected to such kidnaping or bodily suffers suffer harm or shall be punished by imprisonment prison in the for state life possibility parolе person persons cases where such or bodily (stats. do not suffer harm.” The 1933 amendment 1933, p. 2617) patterned Lindbergh the federal after Law, imposition which penalty authorizes the of the death kidnaping except when the victim has been liberated “unharmed.”
The subject uncertainties of the federal statute were the Robinson States, of comment in v. United U.S. [65 944], involving prosecution 89 L.Ed. S.Ct. under that act. There the evidence that the victim had showed suffered injuries from two violent blows on the head with an iron from lips rеpeated applications bar and abrasions Reading tape. meaning word “unharmed” as “unin- Supreme possible Court stated: “Two jured,” reasons ... suggest Congress themselves the motivation of severity kidnapper’s punishment making depend of a whether, injured. his victim has been first reason *5 516 the severity injury
is old belief that the of the should measure reasoning rigor implicit punishment. of the If this be the Congress the statute, in intended that appear would he kidnapper proviso for a of the must to obtain the benefit Congress injuring both libеrate and refrain from his victim. deterrent, provision on may equally have intended as a this theory likely to kidnappers inflict would be less upon they knew that such abstention violence their victims if assumption penalty. save them from the death This would history, is slight support legislative finds some in in accepted has been one by government, contested [and] F.Supp. 103 F.2d Parker, 450, case v. 19 States 857]. [United injury Congress to which referred quality . . The of . injury may types that some of possible is not It defined. trifling from as to be excluded be оf nature would such category Congress which had in mind. We need injuries of regard category. indulge speculation in to such a The no degree were of such injuries upon victim inflicted this scope read out the Act’s without con- they can not be of injuries point almost all would be tracting it where to 283-285.) (Pp. excluded.” uncertainty precise as to the meaning exists Similar of “bodily harm” 209 in section
the words the Penal Code, given Legislature has no to which One definition. con was based the assumption of the statute struction of a adopt meaning given the traditional legislative intent those action context an in tort for battery. words 3 (People Tanner, 324].) v. Cal.2d 279 P.2d Said the [44 generally ‘any touching is defined as “Bodily harm court, against his will with person physical of another force aggravated manner, and intentional, hostile or projecting ” (P. against person.’ 297.) his This force definition subsequent opinions, but in both restated Tanner it, the followed victim of the which kid case those bodily (People Tanner, harm. v. naping suffered serious nearly wire, tortured and with suf supra, bound [victims 1, 6 ; People Britton, Cal.2d 3 P.2d [56 v. focated] 494] them, wire and one struck on bound [victims 555, P.2d Brown, 29 Cal.2d ; People v. [176 929] head] People forcibly raped ; v. struck defendant] [victim P.2d Chessman, rape 38 Cal.2d [238 1001] [forcible Code].) of the of section 288a Penal a violation injury to Leonard is that his only wrists evidence in” by the chains so to “cut tightly were bound There was blood. extent the circulation impair to some similar marks” breaking skin, but “a few little no of a wristwatch. band be made those which would their comрlained of he the chains when captors His loosened food, exercise, tight. was allowed to being He go permitted He was newspaper to read. cigars When shave, and brush teeth. bathe bathroom, physical No he felt “wonderful.” he stated that released, *6 appeared there time and him at that examination necessity for one. to be no present of facts the application to the in its
Tested in definition questionable the seriously whether it is case, Legislature in intention of the case states the the Tanner bodily kidnaping harm and cases distinguishing between If the more injury the has resulted. in victim which no only injury may imposed the is of penalty be when serious present by record, the which similar to shown nature necessarily every an incident to forcible concededly almost is purpose penalty of enhancement of the neither the kidnaping, deterring the the more heinous crime nor intention the killing is injuring or his victim subserved. kidnaper from necessarily bodily injury contrary, if there be On the imposition of every kidnaping sufficient to warrant almost kidnaper might penalty, the well reason the more serious him to kill course for would be the victim that the better probability of identification. the minimize general is attorney concedes that “almost The involving kidnaping a forcible impossible to conceive” injuries Certainly, the victim. the evidence more trivial favorably support judgments of the shows most viewed injury compel, law, as to as a matter the trivial by contemplated is not of the nature thаt it conclusion penalty the more serious for a providing Legislature circumstances, these the determinations of kidnaping. In they finding bodily rest insofar as jurors, upheld. be harm, cannot strenuously insist because of the mis- appellants deputy judge attorney and the district trial
conduct entirety. sup- in their be reversed judgments should they present more than 20 acts of asserted position of this port assertedly other judge trial unfair of the misconduct attorney. by prosecuting remarks prospective voir dire еxamination During that “this is a repeatedly case,” stated death judge jurors, they “duty would be bound” penalty, to consider the they and that should determine whether the defendants should suffer the penalty death imprisoned or be for life. Contin- ually, when counsel for the inquire defendants would of a juror whether he would find for a defendant if he believed certain facts to be true, judge would interrupt to ask if he would find for prosecution if the evidence showed opposite state of facts. There singularly are few instаnces in which, when the prosecuting attorney posed a state facts, judge inquired juror if he would find for the defendant if such facts were not found to be true. At point, one when counsel for juror Lear asked a if he believed might an innocent man brought be trial, judge inter- rupted to rule question that the improper. It should not suggested, be the judge, said attorney that the district would knowingly prosecute an innocent man.
Other statements made the judge during the course of the trial certainly jury carried to the bodily belief thаt harm had been suffered the victim. At the outset of the trial, in addressing jurors, he told them that determine, “to analysis, the last whether or not the de- fendants, and each of them, should suffer the penalty death or imprisoned for life.” At another time, re- prosecution ferred “capital as a case” and stated that *7 jurors “duty would be bound to determine question one ’’ law; question penalty. is the When the defense called a stenographer as witness a present at a conversation which testimony to was аdverse to Lear, she stated that she was unable to relate the conversa- referring tion without to her notes. A request that she be allowed to refresh her purpose recollection for the of im- peaching testifying others to the present conversation and to it judge whole of was denied. The give ruled: “We will opportunity the counsel an to have the statement and to impeach Inspector Ahern he to, if wishes ifor he thinks he can, going any attempt get but we are to resist copy to a that statement of Joe Lear before Mr. Lear has taken the (Emphasis added.) stand.”
During cross-examination of the complaining witness coun- for Lear stated that he was “at sel a loss to understand” something judge the witness had said. The remarked: “You understand, if say you testimony are at loss to but his clear, is jury concerned, is Winters, far as the Mr. then it as is of no misunderstanding your may what be. You concern are not has answered If the witness the trier of the facts here. to have he doesn’t do, he had to questiоn, that all is under- you say, lack of repeat satisfy your apparent, it to ’’ standing of the answer. know, Mr. judge “You point, stated: At another a permit procedure to it is the usual courtroom Winters, to you going not stand answer, are explain his witness explaining from his answers.” prevent this there and witness sought impeach reference to When this witness counsel grand jury, hearing before the transcript of the trickery. him The court declined attorney district accused transcript reading single from the a statement tо allow the Objection reading pages of it. commenced a of several reading judge em- by the would serve to made that such was long colloquy In a phasize the the witnesses. statements objection feel, ruling “I judge stated overruling something position matter, may on this that there be may your there be a trick Blkington, taken Mr. saying objection he denied made, question.” When an may said, was: “There trick; statement, he that was a tricky Blkington has said about a something in what Mr. question.” judge guilty of similar misconduct The same Cal.App.2d 524, 544 P.2d People Burns, v. [241 ground. being reversed 9], P.2d the conviction attorney prosecuting referred
During trial, when challenged produce him to subpoena for Lear and counsel a say: “He doesn’t copy judge interrupted it, any segment of his to disclose any more than he has to, have that; that is what People. You know case on behalf of long fishing while. ...” you for, though, for have been just after the noon recess had been occasion, another On “laugh- defense counsel of accusеd all of the called, the joking,” saying: “Let grinning” “jesting and ing and anything funny about I don’t observe the record show that any conduct, had been They denied that there this.” them had extended an invitation to explained that one of said record does show what was lunch. The another for it substantiate the counsel, neither does among defense but any indicate actions which would nor judge’s accusation *8 jury. judge’s remarks before justify gave judge 59 of the 63 instruc- charging jury, In attorney. Counsel for Lear re- by the district offered tions Only them were instructions; two of allowed. quested given. charges In presented the 37 one of judge the instructions, “guilty” times, used the word the words “reasonable times, “presumption doubt” five only innocence” phrases once. The latter two in- cluded two instructions. Of the three instructions request at the defendants, one was the definition of required by reasonable doubt section 1096 of the Penal Code. presenting jury requested to the the other instructions defendants, judge so remarked as to their source as impression they to create the charges by were not the court. reading judge While one of them, the remarked: “Mrs. Carr Winters, going change and Mr. I am this instruction #6 particulars” certain changes stated the to be made. giving requested by After the instruction counsel Jackson, for judge “I stated to him take it that this instruction is testimony you addressed to the have received relation allegedly to the act of Leonard Moskovitz in accompanying. when, closing . .” argument, . But counsel for Lear re- Attorney’s interpretation ferred tо “the District bodily harm,” prosecution interrupted say that such a defi- nition would come from court. The trial then said: give Jury I “That is correct. will . . . the on instruction bodily harm, support what constitutes legal ’’ authority. attorney acts the district are also challenged Certain Although being prejudicial misconduct. what he said and subject much is not to as criticism as the did conduct of his statements merit discussion. judge, some argument During course to the jury, repeated refer- Greenlease, Hart, made to the ences werе and Lindbergh cases. Objections references were to these overruled requests disregard jury to them admonish the denied. These remarks “ statements as these: included kidnapers] [His weren’t going any chances ... so to take Bobby killed Green- him, and buried and then lease another little pseudo act of kindness, grave. on a flower That is the same kind generosity little extended to Leonard Moskovitz . . . he was smoke couple of cigars”; allowed] [when plan delivering and if the the ransom had failed “Leonard just would have been buried somewhere, Bobby as little was buried ... I Greenlease think there very is a close comparison between the Greenlease case and the Moskovitz only case, in that, and the difference unfortunately, Bobby rescued.” wasn’t Greenlease no record shows basis whatever for the excuse challenged now by any comments argument invited
of defense counsel. Reference other cases was made in argument attorney. opening reply of the district In the they dissimilar, counsel were for Lear stated that but there of ivas discussion them. no extensive of during Other misconduct consists references trial the record, including matters, regard- outside the examination ing by criminal acts other asserted the defendants which only for purpose could have made the of disparaging been their of Also, character. the motives Lear and his counsel by charging they “hiding attacked behind” “deliberately” him “using” stepson by Lear’s subjecting to the crowds. courtroom
If overwhelming weight this werе a case in which the of guilt evidence the credible tends to establish the of the of of of one the crimes which charged, defendants are judge prosecuting the attorney, together misconduct compel errors, judgments with other would the of conviction entirety. in to be reversed their VI, Under of article the mandate section of Con- 4% dispose
stitution this court must of the cause such manner justice. miscarriage as to avoid a of is It that the conceded great of weight the evidencе kidnaping shows a for the purpose of However, except ransom. for the manner in which jury conducted, might the trial was have found in favor of on presented by the defendants other issues indictment. judgments upon all counts of the indictment are re- impose versed with directions to trial court each imprisonment defendant a sentence of life for the crime of kidnaping purpose for the of charged ransom as I count indictment; of denying the orders the defendants’ motions for a new trial arе affirmed. J.,
Gibson, Shenk, J., Spence, J., C. concurred.
CARTER, J. I dissent. inaugural In (March his first address 4, 1801) Thomas 11Equal justice J efferson declared: exact to men all . . . religion, freedom of freedom of press, person freedom of protection under corpus; the habeas by juries and trial selected,—these impartially principles form bright con gone stellation which has before us.” This declaration predicated Rights on the Bill adopted years ten previous which is the foundation of the every American tradition that person charged public with the commission of a shall offense impartial my opinion a fair and trial.
be accorded greater is of importance of that tradition preservation way life of the American any than other perpetuation by that immortal principle postulated document. no doubt that this tradition has been can be desecrated There prosecutor trial and the conduct this conduct, as disclosed record and set forth case. Such opinion, could have no majority other effеct than to in the every semblance of a the defendants fair deprive Conceding guilt that evidence impartial trial. overwhelming, I may be can see no other conclu- defendants *10 impartial denied a fair they were and trial that sion than 4%, of VI, section Cali- Constitution of and that article uphold judg- a be construed to verdict and cannot fornia atmosphere prejudice un- rendered and ment fairness. judgments grant reverse the and each
I would therefore newa trial. defendants I dissent. TRAYNOR, J. miscоnduct of the trial prose of the record
The majority opinion attorney as forth set demon cuting impartial were denied a fair and defendants strates abundant evidence that defendants Because trial. kidnaping, it is contended not could guilty of were determination of this issue. prejudiced been have however, they guilt, were entitled to of their “Begardless (Moore Dempsey, v. trial. U.S. impartial fair concurring ; opinion L.Ed. see 265, 67 87-88, 92 S.Ct. 543] [43 Shepherd Florida, v. U.S. of Mr. Justice 740].) plea can ‘Neither for the 549, 95 L.Ed. S.Ct. [71 VI, оf the constitution save this application § 4½] [Art. a record a defendant to be shows The fact that situation. guilty necessarily determine there does a crime justice. ease the defendant miscarriage of this no has been him guaranteed to law fair trial not have did ’ 618, 627 Mahoney, 201 Cal. (People v. the constitution. ” 792, 798 McKay, 37 Cal.2d (People v. 607].) P. [258 145].) P.2d [236
Schauer, concurred. J., rehearing for a respondent appellants petitions J., Traynor, J., May Carter, 25, 1955. denied petitions opinion should that the Schauer, J.,
granted.