People v. KingPeople v. King
The appellants herein, namely Earl King, E. G. Ramsay and Frank Conner, were, with one George Wallace and one Ben Sakovitz, indicted by the grand jury of Alameda County as principals for the murder of George W. Alberts. Sakovitz has never been apprehended. King, Ramsay, Conner and Wallace were tried before a jury and all four were found guilty of murder in the second degree. The defendant Wallace has not appealed, but King, Ramsay and Conner have each appealed from the individual judgments of conviction and from the orders denying each a new trial.
George W. Alberts was chief engineer on the steamer Point Lobos. He was killed in his stateroom on Sunday morning, March 22, 1936. At the time of his death he was about thirty-seven years of age, in excellent physical condition, and stood about six feet in height and weighed around two hundred pounds. A crushing blow with a dull instrument of some kind was dealt him in the middle of the back of the head, which blow did not cut, but battered the flesh from the skull. Likewise severe blows were dealt him on each side of the head above and behind the ear. According to the testimony of the autopsy surgeon, any one of the three blows on the head would have rendered Alberts unconscious, and in all probability that on the back of the head was fatal. In addition he was stabbed in the chest and shoulders, and a knife had been thrust into his abdomen, through both Avails of the stomach and into the pancreas; and a cut nine and one-half inches long was made on the back of the left thigh to the bone, which severed both the large artery and vein of the left leg.
Alberts entered his stateroom at about 11:00 o’clock on Sunday morning, having come aboard ship with the captain. At about 11:20 the ship’s first engineer opened the door of Alberts’ stateroom to call him and found him dead. The killing had been accomplished and the escape of the assailants from the scene of the crime had been effected in about fifteen minutes.
Wallace and Sakovitz proceeded to the street in front of the union headquarters. Here, Sakovitz asked Wallace if he had anything on him as they expected trouble over there. Wallace replied that he did Hot, and Sakovitz suggested that he go see the janitor, which he did. While Wallace was waiting at the supply room of the union hall, King passed him and told him not to say anything to the janitor about the matter. The janitor gave Wallace a piece of rubber, described as being one-half of a printing roller about eighteen inches to two feet long and about four or five inches in thickness. This bludgeon was given by Wallace to Sakovitz. Ramsay, Wallace, Sakovitz and a sailor whose name is not known, then proceeded to the Howard Terminal in Oakland where the Point Lobos was docked. They arrived on the dock at about noon and remained there until about four o’clock in the afternoon. During this time Ramsay twice left the group and boarded the Point Lobos. Upon his first return he remarked: “That God-damned fink, I talked to him and I could not get him off.” Conner then joined the group on the dock. Ramsay boarded the ship a second time, and upon leaving said: “I’m going aboard the ship and try to get him to come ashore.” Upon rejoining the group, Ramsay stated: “The only way to get him is to go aboard the ship.” Ramsay left the group a third time, going in the direction of the ship, but came running back saying: 11 He is coming.” At this juncture a police officer in uniform appeared on the dock. Alberts, with a companion, had left the ship and, upon crossing the dock, entered an automobile and drove away. Sakovitz turned to Wallace and Ramsay saying: “That God damned fink got away.” Whereupon Ramsay said to the group: “You had better beat it, split up.” They then separated.
On the following day, Sunday, March 22d, the Point Lobos was moored at the Encinal dock in Alameda, it having been moved over night. On the morning of this day, Wallace and Sakovitz met in San Francisco. With them was the
When Alberts came aboard with Captain Odeen, he entered his stateroom. Conner gave a signal with his hand to Sakovitz. In a few minutes a noise emitted from the stateroom which Alberts had entered, and which was described by Wallace as sounding like “ugh, ugh, ugh”. In a matter of seconds Sakovitz emerged with blood on his hands and told Wallace: “You had better beat it.”
After the killing the group met at a nearby warehouse, where Sakovitz told them “it is all over with—beat it.” The group then dispersed, but later Sakovitz, Wallace and the unidentified sailor met in a hotel in San Francisco where Sakovitz lived, and at that time Sakovitz told them that they were in trouble and he gave Wallace $10, which he said had been sent by King so that Wallace could leave San Francisco. Thereafter Sakovitz, Wallace and the sailor met in Salt Lake City, in Chicago, and again in New York; and while in New York Sakovitz told Wallace that he knew friends who could get papers so that he could go to Russia; but nothing further was done about the plan. In the meantime, on the day following the killing, Ramsay returned to Murphy part of the $30 which had been given to Ramsay
King was absent from the city at that particular time, so Murphy made an appointment to see one Lawrence Ross, and at the conference which followed Murphy told Ross who Wallace was and about his participation in the killing of Alberts; thereupon Ross suggested that Wallace go back east and notify Murphy, addressing him under another name, where he would be located about July 2d. Ross also suggested that Wallace’s membership book be “phoneyed” so that Wallace could go back and work on east coast ships. In accordance with Ross’ suggestions, Murphy made out a new union book for Wallace, under the name of George White, with a notation showing the payment of all dues to July, 1936; and he asked Wallace to write to him under the name of Albert Diekman. Wallace then, for the second time, left San Francisco for New York. Upon King’s return Murphy told him of Wallace’s visit, and King told Murphy that Wallace was a “damn fool” and “should not have come out here”. He further stated that he had sent Sakovitz and Wallace to the Point Lobos to “tamp up” on Alberts,
Shortly after Wallace’s arrival in San Francisco on this occasion, King told Murphy that Wallace was in town again and that he was planning to get him into Mexico; and he instructed Murphy to give his dues stamp to 0 ’Neill because he wanted Wallace’s book to be stamped ahead. Thereupon, O’Neill took Wallace’s union book and returned it to him about six hours later with the dues marked paid up to April, 1937, and although Murphy’s initials “A. M. M.” were attached to the union book they were written by someone else.
Wallace then again left San Francisco and went to El Paso, and from there to Del Rio, and then on to Brownsville, Texas. While in Brownsville he attempted to go to Mexico City, but not having sufficient money to get across the border, he wrote a letter to Murphy, under the name of Albert Dickman, requesting that Murphy give the letter to King and that King write to him at Brownsville, Texas. Upon receipt of the letter Murphy told King about it and King said
Many of the facts above narrated were established by the testimony of Wallace, and appellants contend as one ground for reversal that his testimony is without sufficient corroboration to entitle it to consideration. We are unable to sustain this view.
As to the appellant Conner, the record shows, as stated, that he confessed his part in the affair. In this regard he admitted to the district attorney that on the morning Alberts was killed he pointed out Alberts’ stateroom to Sakovitz, just after Alberts entered it, but he claimed that he understood Sakovitz was only going to beat up Alberts. That this confession was voluntarily made and properly admitted in evidence finds ample support in the record, and where, as here, there is independent proof of the
corpus delicti,
a conviction based on confession will stand' although uncorroborated by any other evidence.
(People
v.
Ruef,
The further contention is made that the testimony of Murphy is not competent corroborative evidence for the reason that he, too, was an accomplice. The evidence conclusively shows, however, that his only connection with the case prior to the killing of Alberts was when he handed the $30 of union money to Ramsay at King’s direction. The governing factor in determining whether a witness is, or is not, an accomplice, is the part which he played in the perpetration of the crime. To establish him as an accomplice, a corrupt cooperation in the commission of the crime must be shown. Aid or assistance given after the commission of the crime is of no avail as it would constitute an independent crime on the part of the witness, and make him in no way responsible for the crime originally committed.
(People
v.
Colium,
In urging their point that the testimony of the defendant Wallace is not sufficiently corroborated to entitle it to consideration, the appellants most vehemently disavow their former associate and characterize him as a person wholly unworthy of belief. The tests to be applied in determining the sufficiency of the corroboration of the testimony of an accomplice are aptly set forth in the case of
People
v.
Collier,
It is not necessary that the corroborating evidence should go so far as to establish by itself, and without the aid of the testimony of an accomplice, that the defendant committed the offense charged.’
“The code section expressly states that the corroborating evidence ‘ shall tend to connect the defendant with the commission of the offense’. This does not mean that such evidence shall connect the defendant beyond all reasonable doubt. Such is the rule in
People
v.
Martin,
Viewing the statements and' admissions of the appellants in connection with the other evidence in the.case produced independently of the defendant Wallace, we cannot say that the whole does not tend to connect the appellants with the commission of the offense charged, and that the finding of the jury in this particular is without support.
Appellants also urge with much force the further contention that in any event the evidence taken as a whole is not sufficient to support the verdict against them. It is
In support of this last contention they rely upon the case of
People
v.
Munn,
In the present case there is presented no question of death resulting from the commission of a simple assault or occurring in the commission of a misdemeanor. There is here a death resulting from the use of a deadly weapon which the appellants say they never intended. Such weapon was, however, actually used, and by one who joined with them in the plan to beat up the deceased, which plan they counseled. The question is whether the use of such a deadly weapon upon the person of Alberts and his resulting death was a natural or probable consequence of the plan or agreement among the actual assailants and the appellants for which the appellants may be held liable, two of them, Ramsay and King, not being present.
The character of the plan is of great importance. Here, several men set out to beat up another. In the words of King, he “sent them over to tamp the chief”. Preparations were made for trouble. It was known that he was vigorous and strong. One, at least, prior to setting out on the expedition, equipped himself with a bludgeon. At the scene of
In such cases evidence of a conspiracy is not considered for the purpose of establishing the existence of a conspiracy as such, but to show the circumstances under which the homicide was committed. The law is that when one person unites with other persons in an enterprise to commit an unlawful act, whether a felony or a misdemeanor, with the intention to resist all opposition by force, and murder is committed by some one of the party in the furtherance of the unlawful design, he is as guilty as the person actually wielding the weapon; and particularly where, as in this case, the means to be used by the conspirators were not specifically understood or agreed upon and at least some of the persons before setting out upon the unlawful mission prepared for trouble with the knowledge and consent of all. (People v. Ford, supra.)
The existence of a conspiracy to commit an unlawful act need not be proven by direct evidence. As is said in
People
v.
Donnolly,
The numerous cases cited by appellants in support of the proposition that the criminal responsibility of aiders and abettors—accessories before the fact at common law—is no greater than the intent formed by them, and that this intent is limited to the particular criminal act contemplated, do not go to the point that such an accessory is not liable for all the natural and probable consequences attendant upon the commission of the contemplated act. These cases are authority only in support of the rule that one is not bound by the act of another foreign to and different from the act counseled and advised. The guilt of an accessory in the crime actually committed, though not advised, is illustrated in the case of
Regina
v.
Bernard,
1 F. & F., 240, 242: As if A. advised B. to rob C., and in robbing him B. kills him, either upon resistance made, or to conceal the fact; or if A. solicit B. to burn the house of C., and B. does it accordingly, and the flames taking hold of the house of D., that likewise is burnt; in these cases A. is accessory to B. both in the murder of C. and in the burning of the house of D.; the events, though possibly falling out beyond his original intention, were, in the ordinary course of things, the probable consequences of what B. did under the influence and at the instigation of A.” ’ ”
Complaint is made that the prosecution proceeded upon a dual theory of guilt, viz., that the appellants were guilty as aiders and abettors and were likewise guilty as coconspirators, and that the court committed error in instructing the jury accordingly. Under the charge in the indictment it is immaterial whether the defendants were proved guilty by showing that they were aiders and' abettors or coeonspirators. The prosecution was not limited to either theory, but was entitled to make proof of guilt by any evidence competent to establish the crime charged, and was likewise entitled to an instruction permitting the jury to determine the ultimate fact of guilt without limitation to any specific theory or aspect of the case.
(People
v.
Burke,
In this state those persons who aid and abet in the commission of a criminal offense, though not being present, are liable for all the natural and probable consequences incident to the commission of the act which they have counseled or advised. As at common law, the nature of the crime actually committed, and not the act contemplated, fixes and determines the liability and character of guilt not only of him who committed the act, but of those who counseled him to proceed.
Furthermore, in this state the responsibility of one who has counseled and advised the commission of a crime, or engaged in a criminal undertaking, does not cease, unless within time to prevent the commission of the contemplated act he has done everything practicable to prevent its consummation. It is not enough that he may have changed his mind, and tries when too late to avoid responsibility. He will be liable if he fails within time to let the other party know of his withdrawal, and does everything in his power to prevent the commission of the crime.
(People
v.
Ortiz,
If the actual perpetrator of a homicide done in the furtherance of the common criminal undertaking is guilty of murder, all who have joined with him and who have not withdrawn from the undertaking, even though not present at the time of the actual killing, are likewise guilty of murder.
Nor do we find any error in the failure to instruct the jury with reference to manslaughter. Appellants concede the killing to be murder, but deny responsibility on the ground that it was never intended by them. This position, as heretofore pointed out, is untenable. Moreover, manslaughter is a crime distinct from murder, but may, however, be included in it. It is distinguished from murder by the absence of malice. To constitute murder the existence of malice is indispensable, and any unlawful killing of a human being with malice aforethought is murder. Section 188 of the Penal Code provides that malice may be express or implied, and that “it is implied, when no considerable provocation appears, or when the circumstances attending the
The rule is well established that when the evidence clearly shows that a defendant, if guilty at all, is guilty of murder, an instruction upon manslaughter should not be given.
(People
v.
Turley,
In addition, all proper instructions requested by appellants were either given or included in the charge of the court, and all principles of law necessary for a proper understanding of the entire case were properly instructed upon.
The contention is made that the comment of the trial court on the evidence was unfair and prejudicial to the defendants. The court in commenting on the evidence is not required to sum up all of the evidence, both favorable and unfavorable, or comment on the testimony of every witness in the case. The court may make such comment as in its discretion it may deem necessary for a proper determination of the case, so long as material evidence is not withdrawn from the consideration of the jury, nor an attempt made to control the verdict. In all such cases it should make clear to the jury that they are the final and exclusive judges of all questions of fact and the credibility of witnesses.
(People
v.
DeMoss,
4 Cal. (2d) 469 [
Error is claimed because of the refusal of the trial court to grant separate trials. Since the enactment of section 1098 of the Penal Code, in its present form, a defendant jointly charged is not entitled to a separate trial as a matter of right, and the question of severance rests entirely in the discretion of the trial court.
(People
v.
Thomas,
The cross-examination of the witness Slade was not unduly limited. Upon the subject of his residence, he testified at length that he had been living with an attaché of the district attorney’s office up to the very day he took the witness stand. In addition he was cross-examined exhaustively and answered all questions as to his employment and whereabouts from the time of the murder until he was called as a witness. The defendants were permitted by prolonged cross-examination to bring before the jury the fact that he had been kept by the district attorney’s office in Alameda County for a considerable period of time continuously up to his taking the witness stand. The question, “Where do you live today?’’ was asked after such exhaustive examination, was not a preliminary question, and the rule stated in
Alford
v.
United States,
The appellants have raised the point that the trial jury list, from which the panel and the jury were ultimately selected, was not made up according to the requirements of section 204b of the Code of Civil Procedure, and in this particular have attacked the procedure followed by the jury commissioner in making up and submitting such trial jury list. No bias or prejudice on the part of the commissioner is asserted, and the only error claimed is in his method of procedure in compiling the list. Unless there be a material departure from the provisions of the statute which militates to the prejudice of a defendant, no error can be claimed in
Upon their motions for a new trial, the appellants urged upon the trial court, and have made the point here, that there was misconduct on the part of the jury, in that one of the jurors, Mrs. Julia Vickerson, intentionally concealed certain facts upon examination on
voir dire,
which rendered her disqualified to act as a juror in the case. In support of this contention, an affidavit was filed alleging the relationship of attorney and client between Charles Wehr, deputy district attorney, and the juror, and the juror’s husband, Dr. J. I. Vickerson. The allegations of this affidavit were contradicted by several affidavits filed counter thereto and by the testimony of the juror, her husband and Mr. Wehr, as well as the testimony of several other witnesses, taken upon the hearing of the motion. Upon her examination on
voir dire,
the juror answered all questions propounded to her fully and fairly, and then testified that she knew Mr. Wehr, but that she knew Mr. Harris, attorney for one of the defendants, slightly better. Mere acquaintanceship with one or more of the attorneys in the case is not a ground of disqualification, and neither is the fact that a prospective juror is a client of an attorney a ground of disqualification. (Pen. Code, sec. 1074, subd. 2;
People
v.
Conte,
Appellants’ other and varied specifications of error based on objections running through some four thousand pages of transcript, and discussed in half that number of pages of printed matter presented here in the form of briefs, have been carefully considered and appear to be without merit. From a consideration of the whole record we are convinced that no prejudicial error was committed in the
The judgments of conviction, and the orders appealed from are, and each of them is, affirmed.
A petition for a rehearing of this cause was denied' by the District Court of Appeal on January 12, 1939, and an application by appellants to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on January 26, 1939.