*1 Aug. 16, Bank. No. 4652. 1946.] [Crim. Defen- al., DAN LEARY PEOPLE, Respondent, v. et THE CRAIN, dants; Appellant. WILLIAM *2 E. W. Tapley Appellant. Paul E. Miller for Kenny, Attorney General, Robert W. and Frank Richards, Attorney General, Respondent. Deputy CARTER, J.Appellant Crain and his Dan codefendant charged following by information 10Ó192 with the were count, First November, 1.944, crimes: the murder in in Los Angeles of Frank cello; count, attempted second robbery counts, the re- third, fourth, and fifth victim; the same 1944, Angeles in Los on December spective robberies Each Mathews, and Ellen Landers. Back, B. Joseph Nathan charged prior convictions. with two defendant was also guilty reason of in- pleaded guilty not like prior entered sanity, convictions. and denied counsel, by separate pleas. defendants, represented The two jointly. guilty murder jury The found Crain were tried no charged as first the information and made count of penalty. guilty He found recommendation as During charged on the other four counts. course trial prior he admitted first second but denied the con- jury The prior viction. found the latter conviction true. to be insanity plea On the a verdict was returned to the effect that he was sane at the time of the commission of the several offenses. record does not show verdicts ren- what dered toas defendant Leary. An him appeal being separately prosecuted.
Another information, 100187, Leary, was filed Crain, Hardeson, charging one four robberies committed in Los Angeles on December 15th. charges These were consolidated *3 for trial with in except those 100192, information a sev- erance was had as to No appeal Hardeson. was taken the from judgments of conviction entered under 100187, information present transcript and the evidence in the relating to those will not crimes be considered. Leary
Both Crain and made new trial, motions for which were denied. pay Crain was sentenced under count one to penalty, the extreme and under the other four counts to serve prescribed by the term law, the latter sentences run to con- secutively to each other concurrently and with the sentence under the first count. urges
On his appeal insufficiency Crain the of the evidence support the verdicts him. However, qualifies he his contention the “appellant statement that . is . . not taking position appeal this that the evidence demands a reversal of appellant counts IV and V. But urges it is sustain judgment insufficient to the verdicts of con- and I, viction as to murder, II, Count attempted Count robbery of Ocello, Prank III, and Count the robbery of the place of Nathan Back on December 9th.” Crain, Leary, acquaintances and Hardeson were many of years standing. In 1931 together; were trouble Crain Leary Quentin, was to San reform school, sent and Hardeson probation. Shortly was released on before the occurrences here involved, Crain, parole, Leary who was out on and visited persuaded again him Leary embark on career of crime. is taller than Crain and trembling is afflicted with a continual parts body markedly which increases times of ex- citement and is chorea, causing due to the chronic disease of twitehings. muscular tremors and The manner in which the dressed, men the difference in height, Leary’s their and affliction were identification, aids to so that in addition to testimony positive identification, a number of witnesses partial made identifications bodily or testified to resemblances. bearing upon the crimes of The evidence murder and at- charged in tempted robbery counts one and two shows in following: On November 15, substance the an automo- belonging Leary parked alley bile was an which inter- Avenue, Angeles. Leary sects 47th Western Los Street near Leary occupied in the driver’s seat and Mrs. back was parked seat. After some car and conversation at the Crain Leary liquor went at the corner of 47th store Street Crain, Western caliber re- and Avenue. armed with .32 volver, store, Ocello, Frank forced the owner of the into agent Depart- Linden, rear storeroom where Mr. Revenue, working. ment of Internal was Crain fired one agent shot at the and missed. Crain then turned Ocello back agent store, in the into main voices store. heard crashing en- He ran from the back bottles two shots. Crain, trance of the who with store encountered along alley. again running was 47th Street Crain toward agent pursuit fired at and missed. Ocello was Leary, back crying turned out that had been Leary’s shot. Crain, escaped wife the automo- hospital, bile. Ocello was taken to the where a .32 caliber surgical opera- was removed from his back and bullet other performed. peri- died later from tions He two weeks resulting gunshot tonitis from the wound. given testimony
Identification and the occurrence *4 part by agent Linden, by McDermott, described in Mrs. who washing upper alley the of her flat over the was window by it, a Mrs. parked the automobile almost beneath visiting flat, by White, the Bryan lower Mr. who was the of corner the inter- paint shop of a on the southwest owner pet shop next section, by Ocello, Mrs. conducted a who and shop. paint door to the evening 9th the three robberies were
On the of December subject of three to five committed which are the counts have been so intoxicated information 100192. claims to Crain no clear of these events. at as to have recollection the time a and suit On December 14th Crain’s home was searched by identified Nathan Rack clothes found which was was having rob- by store Hardeson the been taken from his bery of December 9th. escaped evening Leary
On 14th of December Crain being ad- Leary’s from home officers were the rear of while car They parked at climbed mitted the front door. into guns, by threatening him forced Gillespie and, of a Mr. following day, away. him to them some On the drive distance 15th, December four robberies were committed which 100187, and which convictions were had under information perpetrators cash. remembers netted the considerable Crain committing claims day on that to have been robberies drinking great a deal. evening Crain, Leary
On 15th Hardeson bearing car payment made a down on a LaSalle license num- highway Z patrol ber 08 332. On 16th officer received message bearing that radio to watch for a LaSalle number. highway blockaded, sighted, The car and several sought officers it evade blockade shot at the car as making Leary, slightly wounded, a full turn in the road. seat, came from behind the and Crain and Hardeson driver’s from on the other side of car. Over the embankment caliber revolvers. that side the officers found two loaded .38 Newhall, way response On the sheriff’s office at question Barrett, “Well, you sup- do Officer what pose happen you now,” replied, “Well, will Crain try pin rap me; are a murder I can smell ’’ gas chamber Newhall Officer now. At Hurst told Crain Leary custody that been taken into on December had 14th and on 15th December had made a statement which was saying among things writing, reduced to other that when liquor Crain and returned to the automobile from the store, told her that he had shot Ocello. The officer re- Crain guilty marked he did not think anything. saying [Leary] agreed, Danny “he pulled knowledge it”; had caper, and she no “Leary telling spoke also will hate me for this.” Crain investigation young of the fact that several men were under *5 by police, boys remarked that if those were taken to murder, court on the going give he was to up, himself “nobody because was to ride his beef.” He also said that he shot Mr. 0cello with a .32 revolver which later threw into the ocean. evening,
The same 16th, December Cap- Officer Hurst told tain Brown, being present, that Crain had confessed the murder him, to and Crain admitted that this so. After brought in, Captain Crain asked Brown what kind of a deal give them, he could saying that all wanted was gas beat the chamber. He also said Mrs. not did know of their intention liquor to rob the store but “When running we came out I I ... told her shot the old guy.” Leary, when asked if right, that was nodded his head in the affirmative.
On the trial Crain took the witness stand in behalf the defense. He admitted recollection of some discussion trying “tap about on up rap,” me this murder but denied having any had discussion with the officers about a “deal” gas or about the chamber. He testified that at the time of the murder he was at recuperating still home from a truck accident which previous had February. occurred the He being very recalled drunk on December 9th and also com- mitting the robberies December 15th in a drunken state. also evading He admitted evening officerson the of Decem- 14th, ber attempted justification but in said he did not want caught carrying be guns, two since he was then still on parole. having He denied committed the murder or ever having confessed or to an admitted officer or anyone else that he did it. commit requires
It but recital of these facts to show that the record contains sufficient evidence support the verdicts against Crain on degree counts one and two of first murder attempted robbery of Ocello. Crain’s denial of his con fession by and of the conversations related the officers created no more than a theirs, conflict between his testimony and jury which was a matter for the to resolve. The attack made upon the identification, evidence of the claim that the identi fication uncertain, made Linden and White was and peculiar Bryan it was recognize that Mrs. could Crain but man him, go not the merely are matters which to the credibility weight of these witnesses and the of the evidence. They frankly said that because of the excitement and fear engendered shooting they explicit could be as to every occurrence, detail of the their identification of positive unqualified, and their Crain was statements clear and consistent. admitting Crain contends that trial court erred objection in evidence, defendant, over of counsel for each police reporter’s a statement which was in the form of a tran script consisting questions Leary by asked Mrs. Officers *6 18th, Hurst and Brown p.5 m. on December in about the presence Crain, Leary, four some other officers and her answers thereto. Mrs. that statement reaffirmed previous 15th, her statement December which she had read and initialed as correct in afternoon, earlier the she questions. also answered further At the conclusion of the questioning, following place: “Q. the (By officer) took Bill, you Leary’s have statement, heard anything is there you want to anything you say? add it or want to to William I nothing say. Crain: Q. have you, How about Dan? Leary: Daniel All I say very can I is don’t like it much. Q. you (To deny Do it? question answer.) that there was no Q. you Do Bill? William I’m Well, Crain: kind of in the here, Captain. Q. middle Whatever want do. William I Crain: am deny Q. right.” it. All subject admissibility in evidence of an accusa- tory statement to which a defendant under arrest has made equivocal reply reviewed v. Simmons, this day (ante, decided p. 699 18]). Assuming P.2d that [172 application under of the rule there declared in the similar situation here may shown it have been error to admit the accusatory statement, it is clear defendant suffered prejudice no in view of his admissions and the overwhelming guilt. evidence of justifying his No error a reversal judgment on the counts to pertains which the statement has been §4%). shown (Const., VI, art.
Exception is taken to the admission evidence of the written statement 15th, of December by initialed Leary. When objected counsel for to the offer of this evidence, statement court admonished jury as “Well, follows: so far as the defendant Crain is concerned, of course, against is not evidence him and cannot be considered him. It only is admissible as to the defen Leary, dant and as to him it 22 is marked in evidence.” pres- the admonition was that Crain was not The reason for Officer Hurst ent when the statement was shown latter alone. Crain claims a conversation with the prejudice which re- could not have cured admonition rights Leary. It well as those of must be sulted to his as admonition. however, jury followed the assumed, admissible, Accusatory statements, they may are be against a he be tried alone or defendant whether received jointly, properly in the latter case are provided that (People Yeager, 194 defendant concerned. limited to the 40].) P. Cal. [229 prejudiced the fact Crain claims to have been brought on several occasions that Hardeson was into court information 100187 although he then on trial. Under was not charged jointly Crain, Leary Hardeson were 15th, and a on December severance four robberies committed While some of the wit of trial was as Hardeson. ordered testifying, Hardeson prosecution nesses being brought purpose for the identified into the courtroom prejudicial no more to Crain the robbers. one of This in the courtroom. remained all times than if Hardeson had at crimes, prop he was participant some As was objection pro brought No to this erly in for identification. at trial. appears to have been made cedure *7 prosecution of the to is made of failure Criticism giving opportunity witness, thus Crain an as a call However, was called her. to cross-examine defense, pre after few testify for was dismissed to she grounds possible of liminary questions on self- and answers incrimination. prosecution, case of the
At the conclusion stating continuance, for a short that counsel asked Crain’s might he recover the every to believe that he had reason trial develop case of gun murder and self-defense. ground on that suffi a continuance denied properly court (Pen. 1050; necessity Code, made was not of its proof § cient 500]), People Cal.App.2d 669 P.2d Franklin, 41 v. [107 ready I we are to said, “Well, think then counsel Crain’s did in his defense Honor.” Nowhere proceed, Your at the in self-defense. His sole defense acted claim to have murder, of outright of commission denial an trial was recuperating an from at home assertion that it accident when occurred.
735 It is contended that the evidence is insufficient to es attempted robbery charged count and that tablish two assumption the conviction is based the erroneous when a victim is backed into a rear of his store at the .room gun But point purpose be rob him. the evi of must question establishes facts dence as a whole without serious entering it may purpose from which be inferred that the robbery. the liquor store was to commit the crime It is contended that evidence insufficient support a conviction under count three of 100192 information charging robbery of Nathan Rack of suits $82 three of clothes. Mr. Rack en positively identified two men who tered his tailor shop on December 9th and robbed him. Crain was not one of He person partici them. saw no third who pated in part the crime. Crain denied that he had taken strongest tending it. The evidence him it connect was the fact that one of the three stolen suits was found the police in his home. possession
It
is established
mere
of stolen
property is not
to connect an accused with
sufficient
the theft
(People Childs,
it.
People
v.
127
363
P. 768];
Cal.
v.
[59
Luchetti, 119
501
707]; People
Cal.
v. Crotty,
P.
70 Cal.
[51
App. 515
395]; People Russell,
P.
Cal.App.
v.
120
622
[233
209].)
P.2d
Some
[8
evidence of other inculpatory circum
produced
justify
stances
be
must
a conviction of the theft
property (People Vidal,
v.
The on count three of information 100192 is judgment reversed. The one, two, counts four five denying order for a are affirmed. The a motion new trial is affirmed. J., J., Traynor, J., Sehauer,
Gibson, J., Edmonds, O. concurred. judgment in of affirmance
SHENK, J.I concur agree accusatory in state assumption do not that certain erroneously ments were evidence. These state admitted properly ments received. objection of trial court in evidence over the admitted majority states, defendant, opinion for each as
counsel consisting Leary questions of Mrs. asked statement 5 p. Brown m. on December her Officers Hurst and about Crain, Leary, other 18th, presence and some four pre- Mrs. her In that statement reaffirmed officers. 15th, she had read and vious statement of December which afternoon, also in the and she initialed as correct earlier ques- At questions. the conclusion answered further officer). (By Bill, following “Q. you tioning, place: took Leary’s statement, anything you is there heard have say? you William anything want to to it or want to add Dan? say. Q. nothing you, I How about Crain: have very I it much. Leary: say Daniel All I can don’t like (To answer.) you deny question there was no Q. Do it? Well, I’m Bill? William kind of Q. Do Crain: Q. you want to William here, Captain. Whatever do. middle ’’ Q. right. I it. All deny am Crain: California, elsewhere, pointed general rule in as It is the ante, Simmons, concurring opinion in my out tending to in- 18], a statement p. P.2d that when 723 [172 presence and made in Ms crime is criminate one accused objected contradicted, denied, or hearing, is not deny of his failure him, both statement and the fact against him, as in- prosecution criminal are admissible his ac- guilt, or as evidence of consciousness of dicative of a Simmons, supra, (See People v. con- in its truth. quiescence cited.) curring there opinion, and cases ac- reported the admission of the objected Here 18th on questioning on December count of statement, it not the ground it was in- an improper it admitted under evidence, best by Crain. that there was a denial jury, struction to
737 Although Leary’s testimony question an- was containing form, it clear and unmistak- swer was a statement against Leary. example able Crain and one accusations As accusations, told officers “Crain get going, said that shot man took he had and let’s so we ’’ off The of Crain accusa- and went home. reaction to these is, fully import; tions that he their shows understood justified judge conditions under which the trial was in admit- ting fully statement the first instance met, the circumstances show Crain understood the statement accusations, reply, called for a that he was free response to make any might choose, response he and that his jury might reasonably was such that draw it an from guilty acquiescence inference of or consciousness. suggestion The accusatory that the statement not was best evidence because Mrs. attended the trial and her testimony produced, could have been the fact that overlooks the statement not admitted as evidence of the matters to, solely therein referred for the purpose showing response conduct of the accused in to it. promptly Had Crain accusations, denied the there would have been no reaction to show introduce, or admission to and the statement could not have been received in evidence. But Crain’s remarks did not constitute prompt a full and said, denial. He first as here- inbefore “I quoted, nothing say,” then, have “Well, I’m kind of in the here, Captain,” middle lastly, “I am going deny it.” reply, “I say,” The nothing have was not a denial (People Edwards,
accusations
v.
102, 123
Cal.App.
72
P.
[236
944]; People
Egan,
Cal.App. 279,
v.
77
282-3
337];
P.
[246
People v. Egan,
738 harmony are upon relied eases Teshara, People 134 In v. Cal. pronouncements.
above “expressly denied” the ac 798], 544 defendant P. [66 People Lapara, statement; similarly v. Cal. cusatory accusation, 545], P. confronted with the 66, 71 [183 . replied, . “Why kill this man . the defendant did ’’ prompt kill him. each cases "I did not these accusatory statement inadmissible. rendered the full denial Shellenberger, 25 by Crain, case cited The other only authority to the effect 506], Cal.App.2d P.2d [77 is addressed de accusatory statement to two that where *10 “it reply, makes a does not only one of them fendants and occasion, an exists which a under which present situation ’’ reply a from the other defendant. naturally call for would jury the court instructed the present In case the fairly afford him defendant, under conditions which “when a in of an accu- reply, stands mute the face opportunity an reply equivocal an which is not a crime, or makes sation of accusation, charge the circumstances denial of the or direct or his failure to part, or his conduct such silence on his of against him as evidence may make a denial be taken direct guilt, depending on indicating the construc- an admission of reply. In the or such eases you place tion on his conduct accusatory evidence but the itself is not conduct statement may considered respect to such accusation be the accused of accusatory statement itself for the you together with the by If find that determining you his reaction thereto. purpose of accusatory you to a defendant and statements were made beyond that his conduct a reasonable doubt should find charged person innocent reaction those of an thereto were not you may circumstances, then consider crime under like reply, you accusation and defendant’s otherwise will both the it disregard incident and not consider for totally the entire ’’ any purpose. giving of this was errone- It is asserted that the instruction accusatory put were not statements ous because call an sufficiently manner to for af- in a direct defendants argued only is denial and it therefore firmation or jury. The case of confuse the of instruction was to effect supra, Cal.App.2d 25 is cited Shellenberger, at page In it is said this that case support of claim. given “be- not have been should instruction that a similar any evidence of transcript we find do nowhere cause appellant remained occasion silent the face of an naturally reply.” accusation which would call present entirely presented. Crain, situation is case different accusations, equivocal when confronted with the made three replies, prompt none of which was full denial. Hence Shellenberger inapplicable, rule case is and the properly given. instruction was request Leary, given
theAt an instruction was to the jury part concerning which reads in as follows: “Evidence any by any alleged statement made one defendant as to offense or if offenses, subsequent said statement was made to the alleged offense, by commission of be considered you as evidence the second defendant unless such defendant; presence statement was made of the second it is not alleged to be considered as evidence therein, solely facts as stated but is admissible to show what reaction, any, if the second defendant made to such statement presence. in his question is whether his said reaction or showed tended to show an admission or confession or guilt. consciousness ...” Whether this instruction, given at Leary’s defendant re-
quest, complained could be him is not involved in appeal. this But Leary’s Crain asserts that reaction to the accusations was “so incomplete, vague and uncertain as to give jury the, nothing weigh definite to without a further .,” elucidation . . he, Crain, inasmuch as finally indi- *11 cated a guilt, denial of the instruction unquestionably “es- a prejudicial tablished state of jury” mind with the and was prejudicial rights. to his Leary’s reply to the accusations already has given. been No prejudice, claimed, is shown. No error part on the of the trial court has been shown. Spence, J., concurred.