Defendant was charged by information with the murder of Lewis David Edds on or about April 11, 1947, in the county of San Bernardino. He entered the dual pleas of not guilty and not guilty by reason of insanity, but then withdrew the latter plea following the report of the appointed medical examiners stating their findings and conclusions that
As grounds for reversal, defendant makes the following contentions: (1) that his confessions and extrajudicial statements were admitted without establishment of the corpus delicti; (2) that there was no showing of the voluntariness of his confessions; (3) that a certain photograph, identifying him with particular surroundings, was introduced as an exhibit without authentication; (4) that negative evidence offered by him with regard to the failure to make earlier discovery of the deceased’s body was improperly excluded; (5) that hearsay testimony—as to oral declarations made by the deceased and others in the presence of defendant—was received in evidence over his objections; and (6) that the district attorney was guilty of misconduct in his closing argument to the jury. Careful examination of the entire record, with especial attention to the various issues raised by defendant and their consideration in the light of applicable principles of law, compels the conclusion that defendant’s assignments of error are without merit. A general statement of the facts and circumstances in evidence will suffice before discussing defendant’s contentions as above enumerated.
On April 11, 1947, Lewis David Bdds disappeared. Following arrest almost four months thereafter and confession of the crime here charged, defendant on August 18, 1947, led a searching party—as' will be discussed hereinafter to a body (identified later as Lewis David Bdds) in a wash drain in desert terrain about 42 feet north of the road known as the Victorville-Palmdale cut-off, some 2% miles west of Highway 66, in the county of San Bernardino. Some brush and twigs partially obstructed the view of the body from the roadway. The autopsy performed that day revealed that the body was badly decomposed in consequence of protracted exposure to the desert sun and weather, and that death had resulted from several bullets having pierced the bony structure of the deceased’s chest.
Defendant helped the deceased pack the back seat óf the De Soto car with the latter’s belongings transferred from the Plymouth sedan, and then they drove some 12 miles in the late afternoon to the town of Calico. There they stopped at the home of Larry Coke, a friend of the deceased, and had several drinks of whiskey mixed with coca-cola, defendant taking but one to the others’ three because “he was doing the driving. ’ ’ Coke testified that in the course of their conversation, the deceased stated that “they were going to camp”
After having dinner at Yermo, the deceased and defendant started to return to Calico. Bn route they became aware of “a gasoline odor somewhere in the car,” and they “stopped to try to locate” it. In the course of their investigation on the road, defendant suddenly took the deceased’s gun from the back of the car and shot the deceased “once from the back” and “two or three” times from the side-front as the deceased was falling to the ground. It was then about 8 or 9 o’clock in the evening. Defendant wrapped the body in a pair of old pants so as not to get blood on the car, placed it in the front seat, and after driving down various roads looking for a suitable place of concealment, he finally deposited the body where it was later found in the wash drain off the Victorville-Palmdale cut-off as above recited. Before abandoning the body, defendant took the deceased’s watch, ring, and wallet, and then placed some brush and weeds over the remains as a partial cover.
Thereupon defendant drove the deceased’s car to Los Angeles and registered at a hotel for the night. The following morning, April 12, he pawnéd the deceased’s watch at a jewelry shop, under the name of “L. D. Bdds.” That night he drove to San Francisco, where he stayed for several days. He spent a considerable part of the time in various bars on Third Street, where he introduced himself as Lewis D. Bdds, showing certain documents and papers which he had found among the deceased’s belongings, including the latter’s bankbook, gun permit, credential card from the Bethlehem Steel Company stating the deceased to be a guard there, and a number of $25 war bonds “made out to L. D. Bdds.” Most of the bonds defendant cashed during his stay in San Francisco. Defendant also disposed of the deceased’s diamond ring at one of the bars for $100 worth of drinks, and he pawned a rifle that he had found among the deceased’s effects. In addition, defendant sold the deceased’s car for $1,100 to one Julius Weinrob. The bill of sale covering the latter transaction was introduced in evidence, showing defendant’s execution of that document as “L. D. Bdds.” Weinrob took possession of the car and paid defendant $100 to bind the
About April 19, defendant left San Francisco by bus and proceeded to Nebraska and Texas, visiting relatives at various places along the way. At one of his stops in Nebraska he sold the gun with which he had allegedly shot the deceased, and disposed of the last two war bonds. In early August a bank in Lampasas, Texas, on defendant’s order, sent in a draft together with the deceased’s bankbook to the Los Angeles bank where the account was kept, in an effort to secure certain money there on deposit. The draft was returned “unpaid.” Finally on August 6, 1947, defendant was arrested at Dallas, Texas, by a secret service agent for having forged the deceased’s name on the war savings bonds that he had cashed— some 30 or 32 in all. On August 9, two deputy sheriffs from San Bernardino County—Officers Manning and English— arrived at Dallas, Texas, and interviewed defendant in the sheriff’s office there. At first defendant denied any knowledge of the crime, stating that he had obtained the deceased’s property—the war bonds, watch, car, and other personal effects —as the result of a “strong-arm” robbery in Los Angeles, but after some preliminary questioning defendant admitted his guilt of the homicide and made a confession of the details thereof substantially in accord with the above outline. Defendant was then returned to California in the company of the two officers and incarcerated in the jail at Barstow. The following days defendant spent traveling about the desert with the officers searching for the body of the deceased, and finally in the morning of August 18,1947, it was discovered in a wash drain off the Victorville-Palmdale cut-off as above noted.
Thereafter defendant made further statements acknowledging his commission of the crime: one in the afternoon of August 18 in the presence of the district attorney of San Bernardino County and the two officers charged with his custody; another in giving testimony on August 21, at Ms preliminary hearing and arraignment in the Justice’s Court of Termo; and still another on the occasion of his examination
At the trial defendant’s association with the deceased on the desert between April 7 and 11, was described at length by the several persons above noted as having seen them together in that interim on various occasions—business and social—and these respective contacts were similarly identified by defendant in the course of his repeated confessions and statements to the law enforcing authorities. However, defendant completely repudiated that phase of his previous narrative when he took the witness stand on his own behalf, maintaining that he had not been outside of Los Angeles County at any time between April 7 and 12, 1947, and that he had no knowledge whatever of the homicide in question. In line with such change of position, defendant testified to this chronology: On April 7, he was in Glendale at the home of his future wife and her family; April 8, 9 and 10, he spent in Los Angeles going to various bars, attending picture shows, and “knocking about” town in general; on April 11, he borrowed a dollar from a certain bar attendant, Fred Shaw, and with that money he went to Long Beach, where he visited a friend, Wylie Moffett, who operated a bar there, and then returned to Los Angeles in the late afternoon. In the evening of April 11 he went to Gus' Bar, where he met two “casual acquaintances,” one of whom he had known at Folsom, and at their suggestion he agreed to help “roll” a man—about 30 or 35 years old—who was then standing at the bar and was “pretty intoxicated.” They carried through their plan when their intended victim went to the rest room, knocking him unconscious and then taking all his personal effects—including his wallet, watch, “everything that was in his pockets,” car keys and parking ticket. They got the victim’s automobile—a 1941 De Soto—
On behalf of defendant, there was somewhat vague and confused testimony from the Los Angeles hotel clerk and his wife as to defendant’s presence on the premises between April 5 and 12; from defendant’s future in-laws as to the time he allegedly spent at their home in Glendale on April 7; from the bar attendant, Fred Shaw, from whom defendant claimed to have borrowed the dollar for his trip April 11 to Long Beach, and from the bar owner, Wylie Moffett, whom he assertedly visited that afternoon. Defendant’s purported two companions on the occasion of the related robbery in Gus’ Bar during the evening of April 11 were not called as witnesses to substantiate that happening, and the proprietor of the bar testified that no such disturbance occurred on the premises during that day or night. Confronted with this sharp conflict in the evidence as to defendant’s whereabouts and activities during the critical period of April 7 to 11, the jury, in finding defendant guilty of the murder charge in question, apparently accredited the sequence of events for that interval as outlined in defendant’s successive confessions and corroborated by the prosecution’s witnesses pertinent to that branch of the case.
(1) As his first ground for reversal, defendant contends that the corpus delicti was not proved, and that therefore evidence of his confessions and extrajudicial statements was erroneously admitted. Specifically he challenges the sufficiency of the proof—‘ ‘ exclusive of [his] purported confessions and admissions”—to establish (a) the identity of the body found as Lewis David Edds and (b) the cause of death as the criminal act of another. To this point he properly refers to the settled rule that the corpus delicti must be proved by evidence outside of the extrajudicial declarations and statements of a defendant. (8 Cal.Jur., Criminal Law, § 248, p. 167;
As above stated, the body of the deceased was found on the morning of August 18, 1947, in a wash drain near the Vietorville-Palmdale cut-off by a searching party which included defendant and the two mentioned deputy sheriffs having charge of his custody—Officers Manning and English. Upon being notified of the discovery, the deputy coroner, Edward P. Doyle, and the autopsy surgeon, Dr. Chauncey Baird, proceeded to the place on the road where the body was located and a preliminary examination of the remains was there made that day. The autopsy revealed that the body, which was fully clad as found, had probably lain exposed to the desert sun for a considerable period of time. The clothing was “markedly bleached,” and putrefaction had affected the remains. There was decomposed flesh and skin on the body, but “the bony structures were all intact and in position.” The “internal organs,” “blood,” “eyes,” and “soft tissues” of the body “were largely destroyed, presumably [by] the insects and weather” as the result of the prolonged desert
In giving his findings with respect to the condition of the body, Dr. Baird testified as follows: That “a round hole" located “on the left side of the front of the chest"—“very sharply outlined" and “quite different than the other holes that had been produced by insects or weather"—and a corresponding hole “on the back" slightly “below the tip of the right shoulder blade," with “the splintering of [the] rib outward” between those points, indicated the rib fracture to have been caused “by some object passing through it from the interior to the exterior"; that immediately under this area in the back there was another “sharp round hole the same size as the one . . . found in the front of the body" except in that instance “the splintering of the rib was directly inward,” showing that the penetrating object that broke that rib passed “from the outside inward," and cut a groove along the right side of the spine at the level of the broken rib, but that no point of exit in such line of travel was located; that in his opinion such perforations in the skin and rib fractures had “the characteristics of a bullet injury"; that a lead bullet from the left chest and a portion of the skin thereof, “including the [bullet] opening [there] found," were removed and delivered by him to the deputy coroner (each of which specimens was introduced in evidence as exhibits by the prosecution) ; that from his examination it appeared that one of the bullets could have passed “through the chamber of the heart" or “through the right lung," necessarily resulting in a “very severe hemorrhage," and causing death; that from his experience, it was possible for a person to shoot himself more than once “if the first wound was not fatal," but that he had never seen a case of a man putting a gun in his back and shooting himself through the spinal column, as one of the bullets here appears to have been directed.
After completion of the autopsy, the body of the deceased was removed to a mortuary in San Bernardino. The next day, August 19, Edward B». Edds went to the funeral parlors to view the remains. In the presence of the deputy coroner, Mr. Doyle, he positively identified the body as that of his brother, Lewis David Edds, a man 61 years old, upon recognizing a tattoo mark on the deceased’s right forearm—“an emblem of a pick and shovel." At the trial he testified that it was some “35 years ago," when he was “about the age of 16 or 17,"
Defendant complains that the prosecution “glozed” over many possible identifying features, such as considerations of the clothing, teeth, hair, height, approximate build, fingerprints, and blood type tests of the deceased. But the evidence showed that the remains were badly deteriorated in many respects, that there was but little hair remaining on the head, that the blood was gone, and there was general disfigurement as the result of putrefaction and decomposition of large areas of the skin. While some dentures were removed from the deceased’s mouth, the prosecution could not be required to include them in the identifying proof, since such showing would only constitute cumulative evidence to the ample identification of the body made by the brother’s “positive” recognition of the tattoo mark on the deceased’s arm. (Cf.,
People
v.
Peete, supra,
To prove a prima facie case of the corpus delicti here, all that was necessary was to show a reasonable probability that the deceased was the man alleged to have been killed— Lewis David Edds—and that' he met his death by means of the unlawful act of another. The evidence above reviewed on this point readily supports such conclusion to “the exclusion of every other reasonable hypothesis”
(People
v.
Clark, supra,
(2) Nor does it appear, as defendant vigorously urges, that there was an absence of a showing of the voluntariness of his confessions as a foundation for their admission in evidence. The rule is well settled that “ [b]efore a confession is admissible it must be shown by the prosecution that it was voluntary, and made without any previous inducement or by reason of any intimidation or threat.”
(People
v.
Jones,
As above narrated, defendant was arrested on August 6, 1947, in Dallas, Texas. The record reveals that four written confessions were obtained from defendant: the first on August 9, at the Dallas County Jail before police officers from both California and Texas; the second on August 18, in the district attorney’s office in San Bernardino following the discovery of the body on the desert; the third on August 21, at the preliminary hearing in the Justice’s Court of Yermo Township with respect to the charges filed against defendant; and the fourth on August 28, in the San Bernardino County Jail in response to questioning of a secret service agent relative to defendant’s forgery and negotiation of the war savings bonds registered to the deceased. Claiming that these confessions were not freely or voluntarily made but were the result of extortion, punishment, physical torture and abuse, defendant
To corroborate his story of the physical beatings he had experienced in the Texas grilling, defendant produced these witnesses at the trial: (a) two fellow prisoners in the San Bernardino County Jail, one of whom said that on “August 21” he saw “a bruise over [defendant’s] eye” and “black and blue marks” on his legs and back, and the other said that “sometime between August 20 and 30,” when he “saw . . . defendant in [the prison] tank,” his face appeared to be “all right” but that there were some “skinned places and bruises .on his legs from the knees down”; (b) a photographer, who allegedly took pictures of defendant’s body on August 30 at the jail and who stated that “there were bruise marks on the body both front and back” but that he could not detail their appearance; and (c) defendant’s sister-in-law, who stated that when she visited defendant at the jail in August, she saw “a skinned place across his forehead” and “some bruised places on his leg.”
It is obvious that if the foregoing testimony on behalf of defendant stood uneontradicted in the record, it would have been error to have admitted in evidence his several confessions. But such recital is sharply refuted by those present at the taking of the successive statements from defendant—in particular by the officers in question, who specifically testified that at no time were any threats, promises or mistreatment of any kind used in obtaining the enumerated confessions—as well as by other evidence material to the consideration of the various points in issue. Officer Manning expressly testified that on no occasion—either in Texas, en route to California, or while defendant was in his custody after arrival here— did he, or any one in his presence, strike, beat, kick or otherwise commit any bodily injury on defendant; that at no time did he advise defendant to continue to tell “the same story . . . that he told in Texas [or] he could expect the same treatment, or words to that effect”; that on August 18, after he had brought defendant’s breakfast to the jail, and they were preparing again to undertake another trip to locate the body on the desert after several days already spent in fruitless search, defendant said: “Art [Manning], there ain’t no use
Sheriff Fred Mason of Lampasas County, Texas, who was present at the taking of defendant’s first confession in Dallas, testified that at the outset of the interview, Officer Manning confronted defendant with various details of incriminating evidence as to his disposition of the deceased’s automobile and other property at different places in California; that defendant at first denied knowing ‘ ‘ anything in particular about the set-up, ’ ’ but after being shown a photograph of himself standing in front of one of the cabins, allegedly taken while defendant and the deceased were staying at the Bagdad-Chase Mine between April 7 and 11, and remarking, “That is a poor picture of me,” defendant said, “Well I will tell you where the body is”; that defendant then made his confession, that neither Officer Manning nor any one else in the room subjected defendant to any mistreatment, and after signing his statement, defendant left “in the same condition physically as when he came in the room.” Officer English, who was also present at the Dallas questioning of defendant on August 9, corroborated the other two officers in all particulars as to the fair conduct of that interview. While he did admit that he “probably” reported “by phone” some time that evening to the “ [San Bernardino] Sheriff’s office” that “the accused after several hours of severe grilling had broken
The Texas confession purports to have been “freely and voluntarily made,” upon advice that “any statement” therein made could “be used in evidence against” defendant “on the trial,” and it details defendant’s commission of the crime as outlined in the forepart of this opinion. Defendant’s confession on August 18 before the district attorney after the discovery of the body likewise purports to have been made “of [defendant’s] own free will and accord,” and after full information as to his “constitutional right” not to be a witness against himself. The same observations prevail with respect to the full and complete advice of “his rights” given to defendant on the occasion of his preliminary hearing on August 21, and his subsequent confession on August 28, as to his forgery and negotiation of the deceased’s war savings bonds. Photographs taken of defendant at various overnight prison stops from Texas en route to California were introduced in evidence to show that defendant had no bruises or scratches on his throat or forehead, as he claimed to have sustained during the Texas interview as above related. Of similar import are the recitals of the district attorney of San Bernardino County as to his observation of defendant on August 18, and the secret service agent as to August 28—that at these respective times defendant had no visible bruise marks and made “no complaints” as to the treatment that had been accorded him. Also material to this issue is the testimony of an officer of the “Bureau of Identification,” who was in the room at the above mentioned taking of the photograph of defendant on August 30, during his imprisonment in the local jail—that he saw no bruises or discolorations on defendant’s body at that date other than a red mark on his back left by the buckle of a safety belt which prisoners wear, and that the person who claimed at the trial on behalf of defendant
Prom this review of the pertinent portions of the record, it is manifest that the matter was fully developed in the trial court, with defendant having every opportunity to present his position, and that the question whether the written confessions were freely and voluntarily made became one of fact for the trial court to determine in the first instance from considerations of evidence which sharply differed on practically every point.
(People
v.
Castello, supra,
(3) Defendant next contends that the trial court admitted in evidence a certain photograph without authentication, but the record does not sustain his position. According to the testimony of Mr. and Mrs. Donald Love, who operated the Bagdad-Chase Mine and maintained living accommodations there, the photograph portrayed one of their cabins where defendant and the deceased allegedly stayed on the desert from April 7 to 11. Defendant was purportedly shown standing in the foreground. It appears that the photograph was part of the roll of undeveloped film found in a partly loaded camera discovered among other personal effects of the deceased in the back of the car which Weinrob purchased from defendant in San Francisco as above related. Weinrob so identified the camera and related its delivery to a San Francisco police inspector in the course of the latter’s examination of the trunk of the car as a link in the incriminating evidence against defendant. In corroboration thereof, the police officer at the trial, after fixing the time of his so obtaining the camera as “near the end of August, 1947,” stated that “under his supervision and control,” the “film was developed and printed in the police laboratory,” and that the photograph in question was “one [thus] developed.” It further appears that defendant in his confession of August 18, before the District Attorney of San Bernardino County, when questioned about
In this state of the record establishing the source of the film and the authenticity of the representation, there can be no doubt as to the sufficiency of the foundation for the admission of the photograph in evidence. As was stated in
People
v.
Doggett,
(4) Likewise without merit is defendant’s complaint that the trial court committed prejudicial error in its exclusion of “negative evidence” to the effect that persons living in the vicinity and passing along the highway near where the body was found, partly decomposed after alleged exposure on the desert for some four months, had neither through their sense of sight or smell detected its presence. The record discloses that the court excluded such line of testimony from witnesses on behalf of defendant on the ground that the fact one “driving down the highway” did not observe the body located a distance therefrom, and concealed at least in part by bushes and twigs, “doesn’t prove it wasn’t there”; that such situation is “different” from one where the proffered testimony would establish that the “witness had been down there and inspected the spot and it [the body] wasn’t there.” The distinction so drawn by the court coincides with the general rule that negative evidence lacking in probative value is properly excluded as too speculative in nature. (31 C.J.S., Evidence, § 165, p. 875; 1 Jones’ Commentaries on Evidence (2d ed.),
But recognizing that objections to such class of evidence ordinarily go to its weight rather than to its competency (8 Cal.Jur., Criminal Law, § 177, p. 76; 32 C.J.S., Evidence, § 1037, p. 1079 et seq.; 2 Jones’ Commentaries on Evidence (2d ed.), § 601, p. 1112), and assuming that the negative testimony here in question was admissible though of slight importance (2 Wigmore on Evidence (3d ed.), § 664, p. 777;
People
v.
Crespi,
(5) Nor may defendant prevail in his objection to the trial court’s admission of declarations made by the deceased and others in his presence prior to the time of the alleged murder. At this point defendant specifically complains of testimony adduced by the prosecution from the following witnesses: (a) Mr. and Mrs. Donald Love, and Larry Coke— all friends of the deceased— who related various conversations they respectively had with the deceased between April 7 and 11, 1947, at the time he allegedly was on the desert, when he mentioned his immediate camping plans and his intent to
(6) Finally to be considered is defendant’s claim of misconduct on the part of the district attorney in his closing argument, which,.it is urged, was so grave as to prejudice defendant in the eyes of the jury and operated “to deny to him a fair trial.” Defendant’s charge is without substantial basis. It appears that in his closing remarks, the district attorney referred to certain statements made by defendant’s counsel in the latter’s summation of the case before the jury as being without the evidence when, in fact, such observations
Presumably the jury knew the contents of defendant’s several confessions as contained in the record, and the district attorney’s momentary failure to recall their full scope demonstrated no more than a slip of memory on his part and could not reasonably be regarded as an attempt to mislead or confuse the jury as to the source of the recited evidentiary details. Such harmless error would certainly constitute no ground for reversal (Cal. Const, art. VI, §4%), and irrespective of the impropriety of defendant’s argument here, in view of the fact that at no time in the course of the district attorney’s closing argument did he assign the now challenged remarks as prejudicial or request an instruction that they be disregarded. (8 Cal.Jur. Criminal Law, § 521, p. 508;
People
v.
Marvich,
The judgment and the order denying the motion for a new trial are affirmed.
Gibson, C. J., Shenk, J., Edmonds, J., Carter, J., Traynor, J., and Schauer, J., concurred.