*1 740 Septemb Appellate District, No. 2093. Division Two. Second
[Crim. 22, er 1931.] PEOPLE, MOE, Appellant. THE Respondent, CHARLIE v. *2 C. J. for Appellant. Orbison
U. Webb, Attorney-General, S. and John L. Flynn, Deputy Respondent. Attorney-General,
WORKS, appeals P. J.Defendant from a con charge murdering viction under a Carlisle Lord an order of trial denying court his motion for a new trial. points by appellant
One of the made is the evi dence the cause justify insufficient to verdict against him. proceed to
Before we a discussion of that question, let us portions recite of the evidence which directly do not bear introductory are but which to it. A Mr. Lassen and Lord, wife, father Lassen, Carlisle of Mrs. lived together in little a house in the town Walteria, which place nearly fifteen says, miles—one witness with exact- ness, fourteen six-tenths miles—from Long Beach. The living-room from front was entered
house had a which opening porch opposite door directly door by means of a rear of kitchen, into the latter room which living-room. kitchen a small bed- At one side of the opening from room, occupied Lord', with a door Mr. another one room There was bedroom to the other. occupied house, by the Lassens. 1931, after dinner evening January 20,
On soon play- engaged in dark, and after Lassens and Lord edge ing rummy in sat on Lord’s bedroom. The latter occupied seats daughter of his bed and his and son-in-law long placed after at a Not table between the three. Huffine, came to game neighbor, Mr. card started by Mrs. upon knocking, front door and was admitted engage but did not Lassen. He entered bedroom game, original participants. between the went on one of the front door When Mrs. Lassen Huffine at admitted them, attention which, the other’s it is not certain called the lot coupe parked to a model in front of automobile passed *3 driveway which stood, which house the between the from the to one a walk which led side the house and figure in a material to the front door. car cuts street This introductory, are question present our remarks the which by a number of the witnesses and it was observed color, they of a dark They testified that case. all that it was coupe, of them said' that it was a all said most Ford, A a model and Ford, three that it was a at least 1929 that it was a Ford. one said game card to the room which the We now return the A minutes after Huffine entered progress. few room—probably four—a noise was not more than three or arose from her front door and Mrs. Lassen at the heard Through glass in the door she proceeded thither. seat and Upon nearing the standing man to it. perceived a close swung open already man had observed that the door she upon and had his hand the knob in front of it screen being man, opened Upon the door itself. the door Ward', one Joe later showed was whom the evidence responding in, Lassen inquired Otto Mrs. whether this time Mrs. in the house. About person no such lived Ward and standing man behind a second Lassen discovered body. This man was his second partially concealed Disregarding response Mrs. Lassen’s defendant Brown. living-room, Otto, about men into two advanced “gun” observed having Brown his hand. Ward, during so proceedings followed, here weapon shows, any far as the evidence never exhibited any kind. forward, driving
As the moved Mrs. Lassen be- two men them, holdup here,” out, fore she where- cried “There’s living-room through upon ran her husband into the kitchen push and endeavored to the intruders toward stop threatened, front door. called Brown pistol hand, to blow his head off if he did not. Brown just temple weapon, then struck Lassen over the his dazing staggered him to blow such an -extent that he held his in his hands. Immediately head Ward and passed Lassen, Brown Mr. and Mrs entered ldtehen and moving open toward the door between kitchen now occupied by the room Lord, Huffine and latter hav- ing In pro- arisen to his feet. meanwhile Lord had thirty-eight cured a caliber from near hand— revolver awaiting Huffine could not from where—and stood swear peace Firing quiet the invaders of home. appearance. Lassen, commenced their Mrs. could who going position see what was room, her in the front says that Brown fired the shot. first Huffine testified that nearly together Lord fired im- so possible discharged weapon tell who first. Five shots all, elapsed were fired but an interval of fewa seconds between the first two' and salvo of During three. passed about this interval Mrs. Lassen the two men in the through kitchen and leading fled the back door from that calling outside, room to the help, while Lassen went into occupied by the bedroom himself his wife. -Some time crept during shooting Huffine across the bed *4 game progress the card room where in and, escap- through window, ing neighboring a ran to a for house purpose police. calling firing After Brown, through severely by his body, through wounded a shot ran house, -made exit the front door, means of entered the away Ford was rapidly driven occupant some of the lying When he fled car. Ward was dead on the kitchen Lord' on floor, lay the bedroom mortally while floor wounded. He died few above stated a later. All of the facts minutes amply supported by are the evidence. strongly
We now come to the bears more evidence which murder question in the whether Moe participated theory prosecution of Carlisle Lord. It was the in home Moe drove Ward and Lassen Brown going in car, knowledge purpose guilty Ford a of their away. there, and that he the wounded Brown drove support ample evidence We are satisfied' that there was man or a woman finding person, whether a that some a in car as it stood present seated say, do not for the we shall This automobile in residence. front of the Lassen refer to as Brown’s sometimes, convenience, hereafter in record that car, as there is some evidence appearance to it. car similar it, owned owned a living Lassens Emery, neighbor a David F. immediately first two shots street, heard the the same person He out. saw and looked went to his front door Andrews, smoking cigarette. J. G. Brown’s car seated seventy-five from the feet neighbor living about another street, up “went out got Lassens and across the discharged and saw had been five shots front” after all the car. Before seat of in the driver’s seated someone a Ford car Webb saw Bernice were fired first shots forth her back and before passed looked like Brown’s. way going twice. Lassens, each and that of the home after minutes she saw three were fired about first shots appearance the vehicle was car the last time. On last Each time she saw it house. moving Lassen toward the passing Ford was persons. While the three the car contained moving along car but one other she saw and forth back Eddie Archer was large sedan. thoroughfare. This was home, nearly from Lassen’s across along walking the street having fired, heard them were just after the shots saw Brown’s Ford stand- greater He distance. little from a from the man run house saw a ing house and before past got car Archer drove After he get it. into persons it, three “but two or that there and he occupant one more than there did notice I car”. at the residence Brown was appearance The next badly arrived, Long Beach. He Branson Frank J.
745 Walteria, a shooting at evening wounded, of the on the appearance first by appellant. car driven This shooting. after any whatever, Moe under direct evidence Brown’s when Up beginning moment this time at the and the evidence home car Lassen drove to the door of the in which against The vehicle purely him is circumstantial. was home Branson Moe drove the Brown to the wounded at once car. will appearance similar in latter’s to the appearance first by seen casual observer attempted mini- the latter significant, Moe was and most Kirk- Malcolm made to he by mize its effect a statement Moe Brown and Long officer. patrick, police Beach No made a statement. together Brown also were tried and have been speaking, could part generally statement, of this guilt or bearing upon question of Moe’s considered presence, and the having made innocence, part jury; but judge very properly so instructed trial brought directly in his home to Moe statement was presently appear. Kirkpatrick, will conversation with in Wil- that he was wounded in his statement Brown said Walteria removed from both mington, place some miles by Beach, some men who crowded his car to the Long and got stopped him. Brown said he out of thus curbstone and men. then shot one of these He fur- and car with him at time. This state- that Moe was ther said Kirkpatrick police before had his taken ment was testifying that Moe. After Moe’s state- with conversation Kirkpatrick voluntary, thus continued: were free ments I time? A. what was “Q. you relate Will said being him told me about his Mr. Brown told what when was stuck over on the boulevard he was him when ‘I right.’ says, He says, ‘That’s not He up, and so on. through eating just got standing street, on the Orange’—or Long State Beach, about restaurant say which. And he I said Brown Orange, won’t 20th and get car, drive the him to up asked drove drunk; and he said after thought Brown was he said he him him where to drive to and Brown told got in the car we found him, which was the house where directed Q. say part Did Mr. Moe what residence. Branson’s Frank night Bay he met Brown that in after ? he rode car A. Yes; Q. on the drove the car? driver’s side. He A. car, yes.” He drove the which, elected record
There it, conclusively believe material showed that the most portions utterly When Moe’s statement were false. left arrived at Branson’s house car Brown’s *6 yard place standing back there of the and remained long until re- coming after who police the of the officers sponded to men calls them soon after the two sent arrived. of car and both Two the officers the examined large cushion, a found a and fresh on the back blood stain stain of the officers size about three four inches. One began from the testified that the stain inches about three middle all on the line of the back and that it was cushion opposite side of the the seat that half which was behind steering-wheel. other officer swore that the stain was edge near side the cushion from the of the removed furthest steering-wheel at They located. both testified the was part there was no blood cushion behind on the of the stain was the wheel. None of this evidence about the blood jury justified finding contradicted. The was that Brown bleeding profusely when entered his car after the he shooting drops Walteria, for of at there was evidence that place along blood were later found his from the of the course shooting was shot point at which car stood. Brown to hole body, side, as a bullet although a little to one through the at both present back, and he bled ori- at each front Taking reaching all this evi- even after Branson’s home. fices jury only could found Brown dence as a basis the any occupied the driver’s seat of car at time be- never departure from Lassen’s house and his arrival tween possible occupied It is not that he could have at Branson’s. Long long Walteria to seat on the drive from the driver’s no on the and that cushion, and left blood stain Beach the other end of the cushion have left such stain on could part Long another. drive from one of Beach to on the short are.utterly incompatible. two ideas These Kirk- prevarication in his to As Moe resorted assertion neigh- drove the car patrick that the Brown wounded Orange Streets, un- Twentieth and as the borhood of as to the blood stains shows contradicted evidence and entered the vehicle at Brown, after he wounded car, and Walteria, occupied the driver’s seat never difficult above, it considering other evidence stated findings perceive jury have avoided how the could in front in Brown’s ear effect who sat that it was Moe Brown drove was who Lassen home and that it Branson. to the residence scene of at Walteria the crime curbstone, someone at the Someone car it stood sat. wound nature of away very rapidly, drove Brown as the both crime speedy escape from the scene and as a very hard for required; it must have . middle drivers “swapped”
'to believe that Brown al- circumstances difficulty. all the this stream of Under mentioned, yet to be ready stated, other and under that as have found jury, appears us, must needs as it transported him transported he also Moe to Branson’s jury to have Walteria. For the over the road from entire great a strain required too decided otherwise would have prone to error and credulity humans, even song are. deceit, as victims of the siren 8:15 about arrived Branson’s at Moe and Brown house, where helped wounded man into *7 immediately put physician A at once called and to bed. for Branson and Moe arrived in few minutes. He sent a patient they treating and returned be used in his some ice to near-by drug-store in five minutes or so. with it from a police a few minutes Long Beach came Several of they investigation as they had made such later. After they departed and them took Moe to the with proper deemed Until showed Long police station. thus removed Moe Beach and premises, Branson’s but sat disposition to leave no or sometimes moved about the events, course of awaited the Immediately upon arrival Branson’s he at house. Moe’s fabrication he householder the same fantastic had told Kirkpatrick. to Under rule later communicated guilt in flight is evidence of its the scene of a crime from to credit because he loitered Moe is entitled no commission by away he taken Branson household until about Having Branson, upon told his law. minions of the picture by himself arrival, he endeavored to a tale Samaritan, it to his ad- he must have deemed good aas remain at the role and near hand to continue vantage for man further could be done he would anything case self-sacrificingly have us already believe he had' so be- friended. proper,
It seems for to reasons, here set down a several Bright conversation Deputy between Moe Sheriffs and and Cloud. Cloud testified: questions
“We name, asked him his and the Captain Bright and answers Mr. Moe. We asked him name, occupation. gave his address and us He that. working He was at that—that he at working wasn’t him night time. We asked where was on the Janu- 20th, ary places. We him and he said several asked begin with in morning January 20th, as near as he go could over where he been. said had He that he and a gone man named had Joe to San Pedro afternoon to wife; see Mr. is, him over Moe’s Joe drove there in a Ford coupe, arriving and got after there Mr. Moe out of the car stayed and for half, some two hours and and Mr.—this a Joe him, they came back after went and from there to a Eighth print shop Pedro, West street, in San where they got met a Holt. Mr. Mr. said out of the car print shop a and went into the few drinks had Holt, Mr. Mr. and then Moe came out took Joe into print shop Holt, him Mr. and introduced and Mr. Joe, know the name so Moe didn’t last Joe him told Louie, him introduce few more drinks got Long back in the car and went Beach. He there, out, near figure arrived as he could around dark shortly stopped before. Joe car front of the poolroom Orange, got at Twentieth and and Mr. Moe out stayed while, car around there and walked poolroom Seventeenth State—I over to believe that stayed He while, address. said around is the there for nothing doing particular; and there he walked to He took about ten his home. said minutes walk poolroom o’clock, He he arrived at the there. about 6 he was at room his hotel at 6:30. and that We called *8 the fact during his attention to that travels after he got poolroom out of the car front he consumed twenty an hour minutes—(interruption). about and We anyone him if he had seen hotel, asked and he said anyone yes—or, seen him in rather, had the hotel at that particular time, yes. ‘Who, landlady? and he said ‘No, was, woman, question an old landlady.’ you speak speak her, you?’ ‘No, ‘Did to I didn’t her to to her, speak stayed and he at she didn’t to me.’ He said twenty hour, hotel for about a half or perhaps an again minutes. He went down to at Twentieth poolroom Orange street, and standing and as he out front Mr. was by, says, up curbing, Brown-drove ‘Get in drove and and him anyone drive me.’ We seen Mr. Moe if had asked that poolroom, said, ‘I see through and he no. He could who was said I there, but no could me. one see looked wrong Mr. was window.’ He said he asked Brown what mind, just drive me with him. ‘Never down said, He Mr. you.’ ap- I We him how Brown asked where show appeared being me peared, ‘He drunk.’ said, and he entering got the car Mr. Brown over And Mr. Moe’s the wheel and from underneath the wheel—or behind moved car, side he passenger over drove Mr. got place, and Brown from there to 1720 Stanton out him, car, Moe Mr. followed went into this proved Mr. that later the home Mrs. house be Branson; him if Brown had and we asked Mr. told him only anything he road, on the he had been said Wilming- driving for about a half an hour from over in the ton After the Branson residence district. the arrival at they put Mr. and Mr. Brown for a Brown to bed asked doctor was not home. Mr. called, doctor to be and the called, and the doctor Brown asked for doctor to Mr. Moe went after some called, and Mr. Branson and ice brought gave to Mrs. Branson. And it back and police Long Beach came in particular time about him police We asked if Moe to the and took Mr. station. was alone or not. He said he him he Brown told whether curbing, car forced over to the alone; another thought got out he a friend he he and when alongside up car, of the one them standing knew, and Brown, got after Mr. Moe stated that he out him. and shot very bleeding We car, noticed he bad. he bim or not there were no had noticed whether if he asked behind the driver’s the cushion wheel. He spots blood him if that, We realized asked that. knew said bleeding hour, as bad as Mr. half driven man got car, out was after there Mr. *9 750 must have been blood behind the just driver’s wheel—not a spot go that would' in less than driving five minutes’ time. He said he didn’t know anything that; about all knew he picked
was he up Brown at Orange Twentieth and drove him to the Branson residence.”
It is to be noticed the statements Moe made to the two officers he included the story already untruthful he had recited to Kirkpatrick—the Branson and story the effect that Brown picked up had Orange him at Twentieth and that Brown had moved over from the and that driver’s seat he, Moe, had then driven the The sufferer to Branson’s. following portion relating of testimony, Cloud’s to a matter already noticed, particularly we have worthy of attention: “We him if that, asked he if man realized a had hour, driven half an bleeding as Mr. bad as Moe said got Mr. Brown was after car, out of that there must just have been blood spot the driver’s behind wheel—not a go only would five driving minutes’ time.” Moe’s response truly searching question to this was that “he anything that; didn’t know all about he knew was he picked up Orange Brown him Twentieth and drove words, to the Branson In residence.” other story, and he would stick to it. bleeding
Moe’s statement that Brown profusely when got illuminating. already out the car is We have seen bleeding badly—so the wounded man was badly through ran blood from the bullet hole his torso ground—when got into car as it stood before the bleeding badly of murder. As he was house so when he Walteria, started the drive as the blood on the right only side of the back cushion of the ear was the cushion, bleeding profusely blood on the as he was when he car, jury possibly how could the left the have found that at any time on drive from Walteria to Branson’s he oc- cupied seat? the driver’s yet
There is a circumstance to be answered which bears story told his four auditors, Moe’s and it put question. in the form a If driven so Branson’s, far on his to way where for some reason undis- expected apparently closed the evidence he to find a stranger rest, why haven have should he called journey, the short remainder of help pain- cover question this though ful it must have been? answer concerning the already said accords with what worthy prevari- story. That untruthfulness of Moe’s together piecing beyond cated is established doubt as was nicely fitting mosaic circumstantial ever constructed. findings firmly supports
We conclude that the evidence place where the to the Moe drove and Brown Ward *10 in the residence, he sat that car stood before the Lassen bloody standing companions did their while his two vehicle surviving came, sorely wounded, to and until the one work the Bran- car, he drove stricken Brown to the and that the son residence. appellant contends that the record fails to show that
But knowledge pur- guilty things with a of the he did all these pose companions. that he them all is fact did of The possessed of knowledge, that he was but some evidence proceed specifically with of the shall more a discussion subject. Everyone juror fit to be a knows that the auto- use, peaceful mobile, originally for a and lawful intended throughout world, especially has become the one of most aids the commis- United the efficient States, history. The auto carries the sion of crime known to contemplated quickly scene of criminally to the a minded quickly get away after and aids him to criminal act. Every of a consummation. or has failed crime committed quick juror to make a and therefore a success- knows that “getaway” perpetrators active of a crime must ful they in passive than more his connection person, have some charge of the car which offense, occupying with the brought to the scene. is true for the reason them has This appearance started motor must be that the kept running during or must be their perpetrators, direct occupied by person be such a The car must absence. hemmed cars not other scene be be end that district, mishap any that no occurrence or of heavily traveled a impair render inefficient instru- or shall other character occupant getaway, of provided for a mentality possible interference for a keep lookout a the car likely events to interfere untoward for other or police, and lead to an arrest the crime of of a consummation with it, signal by some concerted participants active apprise danger. them of passive par- These handy but ticipants in necessary the commission part crime are of so a paraphernalia machinery they criminal distinguish names which thém they from those whom act chauffeurs, as being lookouts, called lookees doormen. jurors, knowledge with pos- common their all session, finding on their way well to a that Moe acted guilty knowledge they when considered' awaiting Moe sat Brown’s car the return of his com- panions from within the Lassen home and that he drove the home, proof, IBranson’s two to for with that survivor jurors many granting proof, perti- that the considered minds, among came their nent reflections them these: upon such a mission men embarked 1. No and Brown the acts of Ward would so impelled foolish rely upon possessed lookout who was as to they purpose. their If did knowledge of so lookout useless, discharge rendered as he could not would be position. Indeed, knowledge without duties do, companions proposed or, least, what his enterprise sort, a criminal were embarked of some not know that he been ushered into he could such a job. *11 this, despite all Moe was If,
2. innocent when his com- panions the home, toward Lassen he started must soon that the entrance of the two into have learned the house aggressive forced. was Mrs. Lassen testified that she porch light burning on left a the front admitting after Huffine, alight still that was when Ward Mr. might very place. the Moe Brown entered well have seen hand pistol door, as he stood at Brown’s he very inquiry might well have heard the about Otto and it, might response to and he Mrs. Lassen’s have observed men persistency two entered the house response. her Under the evidence we despite think the found Moe things, could that saw and heard all these have that shows the lot which the for the record Lassen 40 140 feet size. The structure, house stood was therefore, great could not have been a from Moe, distance although testimony there it sat was back whatever distance”, a “considerable mean. street things, see and these and he he hear innocent If did whether to doubt gone far as jury might have so man, the would innocent, he post. If his remained at he would have afoot, the car or tempted spot, have to flee the either temptation or not. yielded whether he heard shots, as certainly five Moe heard the 3. scene of conflict from the were much farther others who necessarily impressed have must he. This fact than was strongly for more calling being more Moe as serious preceded had anything which part on than action entry Ward of firing. actually knew Whether aggressive—a circumstance Brown into house was presence that their sure to know referred to—he was above the reason that shooting, for led to the in the house entry. If been an he had immediately followed knowledge purpose of the is, man—that innocent innocent have companions entering the house—he would began, away the car when the bombardment would driven rapidly departed, But incontinently and even afoot. home, as would of the battle he awaited outcome lookout, expected lookee or doorman. as a have been every throughout' steps the various short, In in his move exactly as a lookout lamentable occurrence Moe acted of this would. shooting came over,
4. After the Brown out Moreover, alone. If house—and he ran. he came possessed guilty knowledge, why not not await did brought coming of He two men Joe Ward? innocent, readily did he why house. If he was so hurriedly depart with one? No one could have told him in the Lassen house. that Ward was to remain No one god battles, question except the if there is decided away great no doubt he drove haste. There is one. question. conflict of evidence on that We can- There is no there direct evidence that say “They got Step Ford, Joe! it!” into the clambered evidence. But the entire cir- is no such for there direct he must case show that have said some- cumstances *12 departed not have thing effect, or Moe so to that would missing hurriedly passenger and without Joe with ever, more. Here Ward, again, to breathe no destined part lookout. of the trained Moe acted Eay 5. house, When Brown ran apparently out of the survivor, side, sole on his of the conflict which had been waged why there, man, did not Hoe if he was an innocent and having conflict, heard the drive Brown sounds to some public hospital police station, or that the facts surround- so ing neighborhood this battle which roused a could be in- vestigated, taking private instead of him to a residence in Long Beach ? Again,
6. when further evidence the conflict at Walteria arriving was furnished Hoe’s on discovery, Branson’s car, helping and on Brown out of latter that bleeding profusely, why then did not take the latter to a public police hospital into or instead of Branson’s house? having chance, passed opportunities by, This was last other man, although preceding to show he was an innocent enough inspire expected were to conduct incidents guilt. of a citizen free from special purpose
For refer to statement of Hoe Bright Cloud above made to set forth. We call particular portion attention to that of the statement which pertains trip to the San Pedro Hoe took with one Joe. Hoe said he and Joe went to San Pedro in aftérnoon, coupe, them Joe over a Ford drove trip they printer Holt, on the saw named Joe to.whom Louie, introduce asked Hoe to as Hoe did not know name, Long returned Joe’s last two Beach arriving there “around dark car, shortly Joe’s before”. Orange that Joe Twentieth let Hoe out was at the car. story are in this
There several circumstances which tended knowledge jury purpose that Hoe show to the when he them drove to Walteria. of Ward and Hoe justified jury know last Joe’s name. said he did story, disbelieving unlikely, for it was most as the together good part afternoon, men two evidently Hoe, car, Long in Joe’s as Joe drove Beach trip, and also that Hoe Pedro return did to San man the name who favored thus him. If not know justified Hoe members were not believe its did purpose; tale was ulterior told finding to arise that prevent ever instance, closely together the afternoon, associated Ward were Joe
755 for it in a moment there was appear will that man who fell at that other than the companion Moe’s was no say, from, evening, in the within the hands of Lord Carlisle dropped Moe at Twentieth two to three hours after Joe Orange. willing to associate that he was
Moe’s statement also shows closely an name a man under assumed who traveled name. willing by to that was to introduce him others suspicious justified regarding was this as jury here, that passing, be circumstance. is to remarked It acquaintances that of Moe’s evidence shows several Smiley.. The that of knew under an assumed name, printer name him that alone. Holt testified that he knew Smiley family name, it must be confessed is a but well-known Smiley may possibly that so-called because this smiling face; indeed, as countenance, had a well-favored Byron Juan”, has it in “Don man
“He was mildest mannered ship throat”, That or cut a ever scuttled jury although evidence, think, under all family Smiley as must have determined that Moe used name, testimony as no that he known there is especially Smiley Moe. which,
There in the case taken is another circumstance officers, is most connection with Moe’s statement proven damaging to Moe’s it was not claim that guilty knowledge purpose Ward and Brown entering Lassen home. The witness was shown Holt photographs identified them as “re- of Ward and three man Moe introduced him on the sembling” the to whom then, January Here, finally 2'0th. shown afternoon of between Moe and Ward from before intimate association day—for 2 Holt testi- in the afternoon of the fatal o’clock in San Pedro 2—until he first saw Moe fied that' about dark, says dropped Moe he was at Twentieth when about Long shown informa- Orange, Beach. The Bureau, stipulation, under from Weather secured tion at 5:11 o’clock. 20, January 1931, dark Long Angeles, this statement referred Los Whether record, appear but does Beach or Walteria lack makes places together are so close the three that Moe was will be observed material difference. no dropped by a little more than Ward two hours before the killing conspirators—and of Lord. The we have now shown sufficiently was one of them—had then but a com- paratively prepare short time to for the move on Walteria. Appellant contends that the corpus was not delicti proven point as Moe. The contention, made stated the brief appellant, that “the corpus delicti must by proof elements, established of two distinct to-wit: first, and, a criminal act second, agency the accused’s *14 production of said act”. Points similar to this have been many made times California and have stood the never judicial proved every test of examination. It must be case, course, criminal agent of that the defendant was an the commission of the which is the basis of the offense charge against him, proof agency made but the of this is part no proof corpus proof the This delicti. agency particular of a defendant offered show is to complicity offense, in the commission of the the corpus having by delicti been established other evidence. Here the corpus plainly delicti shown evidence that Lord was by by acting Ward in concert, killed no matter which shot, of the two fired the fatal and no matter how many accomplices in addition to the one who fire did not might brought shot into the case. “The two elements corpus (1) are certain forming delicti facts its basis and agency (2) the existence of criminal as the cause of them. corpus it To establish the delicti is not essential to show that charged by crime was committed defendant” (People App. 393 Flores, 413]; see, 34 Cal. Pac. also, v. [167 App. People Britt, ; 62 Cal. 674 v. Pac. People v. [217 767] App. Rodway, 532]). 77 Cal. 738 Pac. “Prom some [247 thing in one of the briefs we infer appellant that is said complete proof the view that a entertains the corpus contemplates showing committed the delicti crime. appellant’s view is in error in holding is If this it. ‘To corpus is not essential to establish the delicti show that ” charged (Peo committed defendant’ the crime App. 632 Strider, 601]). Indeed, 96 Cal. Pac. ple v. [274 only question presents effect, that Moe now is that pains discuss, already been at such support insufficient point the evidence was against verdict him.
757 in ad the trial court erred also insisted is , “that about mitting of Holt effect the evidence 1931, appellant was January 20, the afternoon of o’clock on Ward”. shop with the deceased printer’s of Holt remote objection was too The evidence was the murder. the commission of and was not connected The first is point is two reasons. untenable for without already heard, before Holt testified the objection, coming them from Hoe, statement of during the Cloud, relating movements lips to Hoe’s much more January afternoon of 20th. This statement damaging to complete observed, much more and, be it also reason testimony The second Hoe than was the of Holt. testimony why point now made not tenable is that plainly irrespective admissible, of Holt was of waiver testimony, object testimony. failure to Holt’s to Cloud’s except for together statement, that, taken with Hoe’s shows period criminals were wife, when Hoe visited his two together comparatively 2 in until a the afternoon point murdered. This latter short time before Lord was during practically we have settled our discussion against question whether the evidence sustained the verdict Hoe. following *15 the instruc appellant the trial offered
At tion, give the court refused to it: “The court instructs but Charley the that as defendant Hoe there is jury to the showing tending show no evidence or to defendant killing in Carlisle Lord participated or the of one killed arson, attempting perpetrate rape, while to the crimes of mayhem.” robbery, burglary We think this instruction or given. slightest might well have been There is not the record, tending circumstantial, direct or evidence that Ward Brown entered the Lassen home with show any in offenses mentioned intent to commit of the the Indeed, analysis instruction. the evidence— proffered of transcript and studied the entire of the and we have read strong testimony care—shows circumstantial with unusual contrary. Still, give we think the refusal to to the evidence harmless. The reasons for this view we instruction was the below. shall state following “The court gave instruction:
The trial court the killed jury being by human is any instructs the persons jointly engaged one of several the time of such at killing of, perpetration attempt perpetrate, the the or killing crime or un- robbery, of Avhether intentional such is intentional, accidental, persons or each and all of such so jointly engaged perpetration of, attempt perpe- the trate, robbery guilty such crime of are of murder of the degree.” first We think the instruction should not have given, been but that appellant. it did no harm to Let us now state we main- the reasons for the attitude tain as to both instructions. of these Moe was convicted degree punish- murder jury first the the fixed ment at life. imprisonment He contends that the refusal give giving first two of instructions jury punishment, the second forced fix thus to whereas, given if the first instruction and the had been omitted, second punishment meted had out to might have been less drastic. But must either duty composed have failed in or it must have been its persons perform unfit jury duty if found guilty irrespective degree, Moe of murder the first judge action of the trial instruc- the matter of two think tions. We no one can the record of read reaching Ward, without conclusion conspired together, the life Carlisle blood, cold to take any perpetrated Lord. “All murder . which is ... . . killing wilful, premeditated kind deliberate and ... Code, degree” 189). murder of (Pen. the first sec. And conflict, shows, evidence in the substantial cause without conspirators brought acts them within language. only made Moe that of defense conflicting alibi, but produced evidence he so within itself as to render There the whole worthless. five subject. testimony witnesses on this of one The- of them place during fixed Moe which, a time testimony testimony if the true, rendered the of all false; truly the others or if the four testified the one falsely. Also, taking testimony four, testified discloses, so far as the there was a record conflict as to ' *16 with the other three. This latter each circumstance practically fact that the- record is affected barren of showing points the distances between as to which Moe times, located the different witnesses at different together and especially fixed all as the times close proceeded one from that Moe the record tends to show place perceive how the foot. We cannot to another on gotten jury Moe could have could have determined place each place from in time to be where witness him. was when the witness saw guilt In we think strong of such evidence of the face conflicting prove an alibi was so the evidence offered not jury could unsatisfactory itself that within conflict have fathomed it. It furnished no substantial guilt. the evidence of fol judge jury as
The trial instruct refused to you can jury “The that before lows: court instructs the charged Charley find crime guilty the defendant Moe of the you beyond to a moral must find a reasonable doubt and Charley present certainty that the defendant Moe was you alleged charged, and if participated" murder as Charley defendant Moe find the evidence that alleged present participate in the not and did not Lord find the defendant you murder of said Carlisle should Charley guilty.” Moe not judge gave following instruction: “The court jury Ray Brown and
instructs the the defendants Charley jointly charged crime murder. Moe are with the guilty you Charley Before can Moe find the defendant charged you beyond find reasonable doubt and must Moe, certainty Charley to- to a moral the defendant gether perpetrators alleged with one more homicide, prior homicide, enter into con- did, to said with felonious spiracy to enter the home of Carlisle Lord conspiracy and intent, and if there is no evidence of such Charley not inflict the mortal the defendant Moe did wound inflicted Lord" or cause the same to be said Carlisle you then the court instructs him, Charley guilty.” find defendant Moe should given pair instructions which was The one of this Moreover, nugatory. the latter the refused one rendered in it to properly the clause contained refused because beyond reasonable doubt “you find must the effect Charley certainty defendant moral and to a alleged murder as participated present probably have been construed charged”, given, would *17 760
by jury to mean that it must find that Moe “was present” place; in is, the" in house, the Lassen and at the time when Carlisle was shot down. There was no Lord opened evidence of facts, such a nor was trial state with theory. such a
Appellant complains judge erroneously the trial give erroneously gave refused to in- various other disposed points by structions. These are either what we concerning guilt facts, have said under the above Moe’s given. by the refused instructions were covered instructions reply In appellant jury brief insists that could not have him guilty basing found without inference upon inference, piling conjecture upon conjecture, without position cites in support of his People the case of v. Smith, App. 55 816], Cal. 324 opinion Pac. in [203 by the cited Presiding Finlayson, case was written Justice formerly court, upon subject of this and is a classic relates, application to which it but it has no here. In the analyzed carefully present case the rule so applied Smith, supra, People infringed. v. Each element necessary guilt to establish the of Moe shown by upon record was not called to base inference upon inference. Each element, words, other proved by although evidence, circumstantial, it was and the point by appellant now made arraign is more no than an principle ment of the may that a man be convicted of upon crime that bind of evidence. We need venture no upon however, argument more as subject, appel is, in effect, lant determined what we have upon question guilt of Moe’s under the facts.
Judgment and order affirmed.
Thompson J., Craig, J., (Ira F.), concurred. petition rehearing A for a of this cause was denied Appeal Court the District 1931, October 7, and the following opinion rendered thereon:
WORKS, appears P. J.It necessary give some extended consideration to the petition voluminous for a paper rehearing this cause. The specious might higher hearing our court application mislead made, if its inac- sure to be which is before that tribunal taken, of ourselves, exposed by who curacies were not reaching a conclusion period time necessity, long perhaps may aid We cause. the merits of the strictly by law Supreme limited is so -Court because petitions for may passing upon to the time consume hearings before it. say preface here, to what shall be said' presented the discussion
later and order accentuate we have dealt opinion, main this crime in our *18 kill- “gang” murder—a generally is was what known clearly the ing This stands out gangsters. truth reached under possibly No conclusion can be record. other know appellant for of course evidence counsel the correct, they for heard the evidence and that the assertion is diligently transcription. We did not studied it since its opinion in for make assertion our former the reason plain not of the crime so that nature seemed require giving specific of a it, name to but it not so one in the obvious to who has not read the record case. argue strenuously so was
Counsel still that the evidence support insufficient to must verdict dwell for a question tragic moment as to what motivated year January events which occurred on 20th opinion little town of Walteria. said in our We heretofore commenting upon rendered, an instruction trial give: judge slightest “There is not the refused evidence record, circumstantial, tending or in the direct to show that Ward entered the Lassen home with intent and Brown proffered any of the offenses commit mentioned analysis Indeed, evidence . instruction. . . shows contrary.” to the strong It circumstantial now proper to becomes state what that circumstantial evidence will was. It be noted from the facts set forth opinion that when Ward and house Brown entered the Mrs, they brushed aside Lassen Walteria first and then flies, passed they Lassen as them stalked kitchen, place it was not ex- toward the to be Moreover, treasure could be found. Mrs. pected any money house, no nor Lassen testified that was thing except comparatively cheap any portable value ring which she wore on her hand. The kitchen could objective they have been the Ward Brown, seeking must have Lord, perhaps Huffine, been for the only kitchen, outdoors, except outlet from the to the into Lord’s bedroom. The direct and determined move- ment the two via the kitchen—and bedroom, toward only ingress was the means of the former room— justify coign they vantage would a belief from some had located entering their intended before victim house. We mention Huffine in it is this connection because rea- ,two sonable to believe from the evidence that men place. had seen Huffine enter will be observed occupants, car that the Ford with its three had been driven up block, way, being parked each before and down the twice house, in front of the Lassen and that Mrs. Lassen and it, parking, Huffine had after seen when the latter was premises. any admitted to the At rate, however, when Ward and reached the they kitchen saw that deal, moment, Lord with must at least for the whom pistol bay, there stood at hand. Here another which is of mention. worthy circumstance Huffine testified place not see produced did from what Lord place weapon. must have near That at hand, as the quickly, procured firearm and it possibly on Lord’s Certainly easy person. reach, was within a circumstance *19 though tends, perhaps slightly, justify which to a belief that victim, Lord was intended that he knew that he had been “put spot”, proposed and that on the to save his life if dearly he could or to sell it as must. as That he did the by casualty latter is shown list: One dead and one severely wounded, out an of force enemy of two. There is circumstance. Both another Lord and Huffine were workers waterfront, along and in employment their they might liquor learned much have too about the traffic, for every intelligent person Angeles in County Los believes from com- report mon persistent quantities and liquor immense of Angeles by Long enter Los means of the coast at Beach and near Pedro or thereto. San The members of the might very well by have been influenced this belief, translated knowledge, jurors in minds into their for are bound to knowledge acquired by they affected have or beliefs they they men merely entertain because are and women who to hear. have ears and women and men associate with other to the driver went and whole, Ward, Brown their On the other murder, no commit intent to with Lassen house being Carlisle Lord. doubtless prospective victim crime, their give to properly name space to taken time and We have emphasize certain in order kind murder this of all jurors, with “The language opinion: in the contained were well knowledge possession, their in this common knowledge guilty finding way Moe acted their to a sat in Brown’s that Moe they when considered the evidence from within awaiting companions of his ear the return of the two the survivor Lassen home drove granting that home, proof, Branson’s for with many pertinent reflections came jurors as proof, considered it in sis num- among mentioned minds, them’’ those to their knowledge referred to paragraphs. The common bered knowledge quotation was con- of this the first few words present-day in the com- cerning use automobiles employment operate of lookouts to crime mission of are rest. in motion and stand when them when quotation paragraph in the If what contained is opinion immediately precedes applica- it in the an has crimes—robbery, ordinary much tion instance—how apply gang strongly in the case of a murder! more does Chicago, York and New even city The annals of life daily Angeles, clearly depicted press, in the Los world of the operemdi informed the when fully modus gang with sinister intent a moves racketeer or either, in hijacker, a subordinate automobile. slightest there not the doubt the driver In such a case is gang. So was the car one instance determined, upon satisfactory evidence, most Moe, having gang opinion. murder, how our This opinion: language of the “We conclude apposite is this findings firmly supports that Moe drove the evidence Ward place to the where the car stood before the Lassen and Brown standing residence, that he sat vehicle while his bloody companions did their work and until the two surviv- sorely ing came, wounded, car, that he drove one But appellant Brown to the Branson residence. the stricken *20 show that the fails to did contends record all these things knowledge purpose the guilty of of his with a
companions. The fact that he did them all is some evidence knowledge that he possessed truth, was of that In ...” enough “that he things” did all these to show that possessed guilty was knowledge blackness, in all its only out was of an abundance of caution that it was necessary “proceed specifically more with a discussion subject” the and to set down the paragraphs. six numbered Dealing question with both per- the whether Hoe was the son who sat the Ford car while it the curb at stood by question Walteria and the possessed whether he was of a guilty knowledge purpose companions, of his the the author petition rehearing clings persistently for a the theory guilt fastening upon jury that in based the inference point through inference. runs practically petition, colors the entire and the assertion very is set pomp many places. forth with and circumstance We position by are not prolixity shaken from our moment, presentation, and shall in a we show after a method which opinion, we did not main exhibit in the how evi- proves car, dence that it was have Moe who sat as we shown already possessed that whoever there rested was knowledge. guilty escape certainly There is no from this proposition. go up latter Before we further and take pause grant- sat in car assert, as who ing any there was inference whatever drawn propositions, in the matter of the two there was no knowledge guilty more than one inference. The fact of on part satisfactorily person in the car most was proven. regard. There was no inference The pos- point inference to which we refer sible as to person whether Moe was the in the car. If there such evidence, including, from all inference drawn it arose proof person especially, car, abundant been, possessed of guilty whoever knowl- edge. however, already said,
As we have not even that inference proven could have been drawn. Moe drove bleeding Brown to the Branson home and Brown was profusely when he there. The evidence arrived spot fully blood the back of the car seat is stated rehearing petition forth a opinion, but the sets our concerning spot cause theory and location of
765 pause theory stated Indeed, we was notice. same futile, so appellant’s brief, regarded it as so as com- but we deemed it un- pletely imagination, that we upon founded worthy opinion. re- passing of notice in our now even a it well to appears refulgence, be with an added in the brief when, it. stated theory refute is that as up Moe, picked petition imagined by Brown and as Orange, from at Brown moved over Twentieth and opposite side steering ear behind wheel doing, imprinted the telltale that, of the in so seat and is idea based stain This fantastic blood cushion. upright the view that Brown sat at the wheel elongated and horizontally stain somewhat rubbing to side. It is absurd evidence of a from side showed suppose upright Brown sat at wheel could have by during imagined him from Walteria to where drive by fortunately appeared, Moe so wounded and weakened loss Indeed, as it whether he could blood was. is doubtful Certainly, doubly is have driven a car at all. it doubtful Long whether he could have driven from Walteria to Beach. Surely, already determined, he must have left a we steering-wheel on the cushion driven stain back the ear from That the blood stain could have been Walteria. steering-wheel away made movement from the Brown’s unlikely. is, think, most One reason for this is view according stain, to the whose is witness statement theory, counsel’s three most favorable to commenced inches cushion, line from the middle of the back therefore at a man clear point wheel, where the wounded against necessity scraping existed for cushion. The no elongated horizontally most that the stain is satis- fact theory upon another factorily explained than that advanced long from Walteria by counsel. On drive to Branson’s naturally swayed side, from to some extent side to the ear roads, cars do even on the best of all will Brown’s to move side to body was thus also caused side yet There opposition to the movement of the car. another any was found thing part mentioned. No blood Brown had sat at the the car. If erect wheel seat of already Much his blood must have the seat. has reached him, there amount blood shed but is more as to the testimony subject. Mrs. Branson testified as to the on the “Q. you
man’s condition after home: he arrived her Did any night? Q. see blood that sir. it A. Yes Where did come from? From A. a wound in Mr. Brown’s back and Q. one in drip his chest. on the floor? A. Yes sir. Did Q. you any part apparel Did see his blood- Q. stained? A. A. Yes sir. Where ? took off As Q. Q. of him. Took what off of him? A. His clothes. bloody region? down—dripped Where was the A. It ran down clothes, on the floor off from both his back Q. you chest. What did Mr. went to do after bed? up floor, A. I washed I think, off the about blood *22 thing; gathered put first up them his clothes Q. drip the bathroom. Did to from the front door Q. the bedroom ? A. He came You had to the back door. wipe to the blood from the ? back door to the bedroom A. testimony Yes.” This plainly shows that Brown’s clothes were so dripped saturated with blood that it while from them yet only he wore them. The reason that no blood found was right on the seat at the side of the car was Brown because evidently pressed against cushion, the back hard most thing natural for him do, causing absorption to an thus place. subject the blood at that In the consideration of this it must be probably remembered that Brown was shot chest, passing man, the ball out at the back. He was the Ward, and not who was seen fire Lord to at at almost the same time that Lord at him. fired He doubtless faced Lord throughout followed, Ward, fusillade so far as the discloses, evidence having weapon. never exhibited a point this bloodshedding to is that Brown’s must have been greatest back, at the knowledge bullet, as it is common that a body on entering hole, leaves a small and at its exit makes large explained one. is presence Thus on blood right cushion, side of the back while none was left on right side of the seat. are
There several go other items of evidence which to complete proof person that Moe who sat the Ford car as it stood before the Lassen home. The first of these is Moe’s fabrication to the picked effect that Brown up at Orange. Twentieth That his assertion was a conclusively fabrication undisputed is shown evidence to the blood stain on the cushion of the car. That evi- shows, already declared, dence as we have that Brown never says Orange. that he Moe Twentieth drove car to Certaintly because Why the statement? did. did he make him. have harmful of the truth would admission some other also, to shield Certainly, he not make did intersection Brown the street person have who driven degree be ex- That altruism not mentioned. Roe, some pected say To John Doe or Richard of him. might have saved stranger, Brown the intersection drove if assertion Moe, made that would doubtless the un- had realized known of the stain and blood give rise. The arguments presence answerable to which its Brown to the clearly shows, then, evidence that Moe drove drove the proven that Moe intersection named. How is it greater car from Walteria? Moe was with Joe Ward the long before part up afternoon and to a time association Walteria, the start for their enough strong they intimate ac- prove is day. But quaintances, only even if became so Why Ward hardly latter to be believed. should with have undertaken excursion to San Pedro Moe acquainted the two before ? Another item: were not admitted, nay happily that he was so located asserted, Orange picked up Twentieth and recapitulate: dire need. We latter’s during Ward, murderers, 1. Moe one of the ' afternoon. *23 precipitating 2. together Ward Brown acted shooting death at Walteria which led of Lord. person
3. Some sat in the Ford while Ward and Brown deadly away. their work drove Brown did Brown, murderer, 4. Moe drove the second to Twentieth Orange and thence to Branson’s. missing Who can doubt how the link chain this is supplied? The be association of with one of murder, shortly with the murderers before other so speaks taking it, after alone volumes. But all the evidence together missing firmly put place. link is its circumstantial, evidence, though it was Moe proves in the car who waited and who drove from Walteria If all do make to Branson’s. the circumstances impossible anything by prove is circum- proof then it evidence, merely and that evidence enables kind of stantial jurors to draw inferences. We have never heard it said that circumstantial operation. so limited its We have seen no case which question, discusses this but are full any books of assertions to the effect that case sus- ceptible of admission of such evidence all the issues proven be that evidence. Of course there are certain rules which circumscribe the use and effect of circum- stantial instance, evidence. For proved “the circumstances must susceptible explanation hy- no reasonable pothesis consistent with the innocence of accused” Evidence) .(Jones, sec. 899). This rule has not been in- fringed by anything we said, hypothesis for no con- sistent with Moe’s innocence can be drawn from the evi- dence, only but the sole one guilty. that he is We have already to be caused entered an denying order rehearing.
Craig, J., (Ira Thompson F.), J., concurred. petition A by respondent to have the cause heard Supreme Court, judgment after in the District Court of Appeal, was denied Supreme Court on October 22, 1931.