*1 Dеc. Bank. 1945.] No. 4664. [Crim. WEATHER M. Respondent, v. JACKSON PEOPLE,
THE FORD, Appellant. *2 Appellant. Lavine
Morris for Richards, Frank General, Attorney Kenny, W. Robert Attorney, District Howser, General, Attorney Fred N. Deputy Leavy, Depu- Miller and J. Sullivan, Robert Wheeler Jere J. Attorney, Respondent. ties District Respondent. on behalf Frank Amicus Curiae C. Collier as of con- judgment from a appeals CARTER, J.Defendant guilty him finding jury verdict viction entered fixing Struck, and 1943, Mary Annette April 5, murder on that nu- contends imprisonment. He at life punishment charge in connection with were committed merous errors excluded, erroneously jury, to the material evidence *3 support the is insufficient to and that the evidence adduced verdict. taken, first is points to be well it
Since seem sufficiency of evidence. unnecessary pass upon however, facts, considered in detail must he some apparent of because is from circumstantial nature may be drawn conflicting evidence inferences therefore, very and, therefrom, presented, is close case materially any af error cоmmitted the trial court which might have rights fected the of defendant substantial miscarriage justice, preju in a of resulted must be deemed ground (People Albertson, dicial and 23 for reversal v. Cal.2d 7]; People Dail, 550 22 P.2d v. Cal.2d 642 P.2d [145 [140 ; Silver, 16 People 4]). v. Cal.2d 714 P.2d 828] [108 after murder, reported About two weeks police just body he had discovered the of the victim occupied cafe which she as his from tenant. But circumstances has suspicion there woven a web been of assertedly strong enough support the conclusion that de fendant the perpetrator of the crime. The facts and cir fall cumstances into three classifications: time 1. Occurrences prior 5, 1943, to April supposed of murder; date 2. Occur rences 5 April April 18,1943, between date of defendant’s
404 discovery body; reported and 3. Occurrences between 1943, April 3, 18 and November date of arrest. defendant’s 5,1943. 1. prior Occurrences Alabama, Athens, born in 1874 in the son of farming helped minister. He and had some school- ing, equivalent аll about a grammar school educa- age tion. 26 married, although At the apart wife have at.times, marriage lived still endures and grandson. a son and Except have present predica- ment, defendant has any never been arrested or been in trouble whatsoever. 1909,
In working trades, various railroading and carpentry, defendant came to Southern California. 1922 Since he has been interested in building construction and real estate Highland Park, Angeles. Los At the time trial he was years 70 age, and had property a rental and income of from $1,000 $700 years month. previously About three built a small restaurant Cafe, called Oh! Johnnies located Figueroa the southwest corner of North Street and 100 N. Avenue Angeles, Los year and a and a half later he had Hurry built the Back Cafe in vicinity. the same He owned nearby Apartments, Weatherford and also a residence located 20 feet south of Cafe, Oh! Johnnies with its front window facing the rear storeroom window the res- taurant. early or sрring summer defendant met the victim, Struck, homicide a Mrs. who ran small restau- alien, years rant on Avenue 26. She was a German then health, age, country years of normal come and had to this previously. 1, 1942, On November Mrs. Struck inserted Angeles a personal “lonely the Los Times heart” ad read- means, ing, “LONE LADY man, meet refined business ’’ Y 50-60. Box 110 Times. 2, 1942, defendant, On November then living separate wife, reply from his ad: wrote to the “. I I plenty am alone and ... lonesome. have but it does not keep lonly, from I getting very me active, am and am *4 42 Dodge you a If Coup. phone wish me after 7 P. M. or bet- very truly ter me. . . write Yours . .” Defendant claims that epistle he never received an answer to this and that until the fact investigation, was disclosed the murder he never knew that the ad he answered that Mrs. was Struck. Mrs. Struck year, replies ran or times in a and the ad three four from other among men were found her effects. Cafe, Oh! Johnnie’s built the whom defendant
The man for ill, busi- week, became it renting $25 and who was others, one a drunkard successively to turned over ness was him to the refinanced defendant had disappeared who re- defendant repossessing property $130. extent of Jack by a cooknamed wages claimed pay $135 fused to back Finger Defendant states Branham, Three Jack. known as of woman who vegetable groceryman told him or This “lady cook.” suggested a looking for and a new location Mrs. Struck. woman turned out to be negotia- the time of his Later, November, in and about into his residence Struck, moved tions with whom was wife, with back of the Oh! Johnnies Cafe. His However, still living, up. fix the wife again helped him stayed apartment Cafe Back and kept Hurry over December, 1942, there at times. About the first signed agree- a written moved Mrs. Struck into the cafe. He five equipment for ment for rental of the cafe and to her cent, per years cent, rental reduced to 5 per at a of 7 later all gross pay earnings, monthly, the tenant payable expenses and water, gas, operating power, light, license and repair. equipped keep place good The restaurant more, together brought ice two boxes. Mrs. Struck with a steam cooker. also table, plate, hot fireless She and brought alongside building. a trailer parked which she day every Defendant was and around the cafe almost helped equipment. generally parked He Mrs. Struck install her his car in the or in his house and lot to the west a lot between Apartments. Weatherford opened
Mrs. Struck part the cafe the latter for business January, operation 1943. Her the restaurant was profitable get and defendant soon wanted to her out. One Salatich, experienced Steve operator an restaurateur locality, ten of three cafes had known defendant for for years or twelve heard Oh! Johnnies and had January early Feb- approached lease. He defendant in late for ruary, 1943, place rent for a month $60 offered accepted $75 three months and a month thereafter. Defendant He agreed ask to vacate. proposal go, reported back to had consented to Mr. Salatich that she days get that she rid she had wanted few food Finger arranged hand. Salatich Three Jack to work cook after he took the cafe. over *5 by Struck, defendant,
Several conversations were Mrs. In fact, person- Salatich. Salatich talked to defendant ally every or on telephone day almost talked with also eager change Mrs. He Struck. to effect but Mrs. February Struck was slow in action to taking vacate. On 12, 1943, thought things he defendant stated “looked funny” kind at the reason cafe and for that he and up Boulevard,” wife “broke and moved over on Colorado although stayed part apart- defendant still time in the ment over Hurry all Back Cafe. Defendant claims that dealings of his purely with Mrs. business; her; he had no sentimental social association with and no attachment for her. is no There to cast doubt evidence this assertiоn.
On February 13, 1943, defendant rented the rear residence family to a Farmer, named and to he made com- them various plaints about Mrs. Struck and her On reluctance to move. February 15, 1943, against he filed a her- in the suit for rent small February gave claims court; her written notice pay to $48 rent ending, quit for the month then or to premises. On February 26th, gave written notice that and after March pay she would week $7 have to rent in space. advance for purpose trailer He claims that the of the latter notice keep sleeping was to her from the trailer in violation regulations health and that he free offered parking for the trailer on the back of lot. He also claims that Mrs. angry going court; Struck was not with him for that in fact after the session procured was over and he had judgment against her, car, he drove helping her home her shop enroute. register keep any tapes She did not cash or records business transacted de- paid cafe. She fendant $11 abоut court, supposedly the time he went to rental for January part of February, paid and she an- other $11 in March. Other than these payments, received no rental from her.
In the part latter reported of February defendant Mrs. sugar hoarding, Struck to O.P.A. for and exhibited in his he said had sugar authorities stored office which some repeatedly told the Farm- put been there Struck. He dirty, filthy, insanitary, ers she and asked them to report sleeping in the Department the Health trailer. make telephone complaint He the Farmer used the house personally himself in their name. He also called on the author- investigation told inspector made an who ities. Some a week trailer, hut not live that she could put padlock living there. later fou'nd her still her re- was done that this on the He claims trailer door. regulations violating the health quest keep her from locking him her out. that she later accused them, pounding told The Farmers testified that defendant *6 get to Struck “anything” to Mrs. fists, that he do would among people, spoke against other vacate. He her to various that Finger man testified them Three Jack. This debt the old claimed the amount of pay offered to him double Struck, but from go get lease Mrs. down and would if occasion protested against stealing; that on another that he get rid of give “$2500.00 him to defendant stated he would her can; get for any way you rid of that woman ... that and several witnesses good.” Defendant denied these offers Finger protesta- despite Three Jack’s fact attested the that very is bad. respectability, reputation tions of removing his police Mrs. of went and accused Struck him officers referred equipment, and dishes silverware. city attorney. Sala- defendant told Some time after the middle March $350. exhibited bought tich he had out for He that acknowledgment bearing pay- memorandum of sale her by her purportedly listing ment certain articles reserved and Later, sale. March and excluded from the and about man, Mrs. moving direction and with under defendant’s cooperation, boxes, her ice was Struck’s moved one of Hurry Cafe sale, included from Oh! Johnnie’s to the Back Cafe.
During to M. March Mr. referred defendant J. also Salatich Dauk, broker, a real estate whom defendant twice dis- with problem evicting complained He cussed the Mrs. Struck. anger, beating government of her in income said she was on might beating tax Struck and be him. Mr. Dauk visited Mrs. and told defendant that her lease and she would surrender equipment, $1,000, $500, she which were worth that for but would hold out one ice box. Defendant said that was more worth, place appeared disappointed than the to be but argument rather an angry. than Paul Farmer overheard be- give Mrs. she tween defendant and wherein refused to Struck back get the lease to defendant and said would when she out “good ready,” replied and to which if she did give him going something desperate. the lease was to do Angeles 16, 1943, Los Times March Mrs. “Lonely Lady” advertisement, replies
inserted another and among effects, an- were one dated March 16th and A found, other March 22d. torn menu also on the back of apparently which she had started draft a reply one 18th, started, writers. This note March “Dear dated precious Your ,” gave Sir: . letter to hand . . and her address telephone number. Defendant men in claims to have seen the kitchen cafe states that on one occasion several men, whom suspected might spies, sitting Nazi be were around table with on it and speaking documents with a German accent.
Defendant claims that the last time he saw Mrs. Struck alive Sunday morning, April was on stopped when he coffee. At that time he heard a man’s kitchen voice there talking. says seemed to be although loud He promised Struck had to vacate March 25th had broken the promise, argument no her, he had the con- trary promised to bring her gallon replace shellac some which she having him her; accused taken from spoke Mrs. Struck then of going away аnd Bishop mentioned where she had a sister. statements, of these defendant offered the
In corroboration *7 Orpha Hayden testimony of a to the effect that she had Miss April 3d; Mrs. Saturday, on last seen Mrs. Struck cash getting her of from defendant in $350 had told box, deposit give up it in a and of intent placing her mountains; up and take trailer business into she Hayden accompany had invited Miss her. This evidence by court, was excluded the trial and the exclusion is an error judgment. relied for reversal passed he states that the cafe at least twice on Monday, April 5th, with intent to deliver the but found shellac place generally locked. knew that cafe He closed Mondays. changed had Mrs. Struck had the locks so that key by no he Although had could he claims enter. automobile, left the shellac in his it never found by police. However, purchase an item such a showed in his memorandum book. Palmer, regular cafe,
Mr. a customer of the last ate there April Monday evening, 8:30 p.m. about He stated that him register Mrs. Struck sat cash between and had a cup When coffee. he went back at 11 o’clock morn- the next tenant, Defendant’s locked. breakfast, the door was ing for p.m. 4:30 or about alive Mrs. Struck Farmer, last saw walking a block about April 5th. She evening of on the groceries. bags full of shopping four the cafe with from April 5th evening Occurrences 2. from 1943. testimony fixed is time the homicide apparent The boy. On high Paul, 15-year-old school the Farmers’ son got route and home newspapers on his April 5th delivered mother, and brother evening. father, in the His 7:30 about while listen- in the house. Later gone and he was alone had out faces living room, of which ing in the the window to the radio cafe, heard storeroom window of the “unusual back arguing.” the window people of “two He looked out noises” that one voice was that Mrs. Struck and could tell argument that of continued for other was man. Struck; He also a man’s arm minutes. could see Mrs. elbow,” “leaning up up against “about to the the shelves there The man’s arm was window.” covered with gray” say, “medium heard colored sleeve. He “No, no, no,” boy with her hands “up front of her.” The then ceased to listen, but or three minutes he heard a “very room, noticeable scream.” He then went the next into although lights were still on in the cafe and he could see the clearly, “something storeroom window black” had been put up front immediately lights it. He out turned all in the house and watched for about five minutes for someone to come out of the cafe. He saw no but in one five or ten lights minutes the went out in the cafe. He then became so frightened lights that he house, turned on all the locked in, himself and hid under the bed clothes. It inwas this excited and fearful family state that the rest of the him when returned p. m., home about 11 and were forced through passing enter cafe, window. Mr. Farmer lights out, noticed that all including lighted the neon ordinarily clock which burning, although was left repeatedly told Mrs. Struck that she turn off should *8 because of a possible blackоut. Mrs. Struck was not seen alive by any night. witness after this body, The condition of her found, when indicated probably that she was killed about April 5th. night, April Tuesday 6th, he had on
Defendant claims said that a man’s voice telephone call which two; day would be back that about a later week same voice called going and said she was Bishop and it days be several would before she came back. Defendant knew that her landlord, former Jones, a man named was from Bishop, says that he worry did not at Among first. effects of Mrs. Struck telegrams, were one dated in May, 1941, from a in Bishop Jones a Jones in Angeles, Los and one dated February 8,1943, Angeles from the Jones Los to Mrs. Struck.
Defendant having denies having committed the murder or hurt any Mrs. Struck in way. He claims that he not inside was the cafe on evening April 5th, working that he was at place Boulevard, stayed Colorado and that he there. Mr. although Farmer testified that the blackout cardboard had only been over the 5th, it was intermittently April cafe prior window рermanently date,
there after that and that he once gentleman saw a thought over there that he was defendant’s son, although he could positive. not be passed nearly every day April Defendant cafe 5th. have tried claimed to door a time or two and the He front reported once. He that Mrs. back door least to Mr. Salatich away days given for he had her Struck was a few get out, replied $50 more to her to which Mr. Salatich that “it expense. right, half paid all whatever he I would stand was just waiting lady back. She was ... We were come ’’ away. to be Defendant also said that Mrs. Struck supposed up to Fresno on and that she would be “was some business keys." Tuesday back on and hand him over the Defendant having keys made, against suggested but advised new Salatich course, consult an this and recommended that defendant police. that he confer attorney, and also attorney telephone talked Salatich’s who stated over long the landlord and had a bill of that as signed, go place. into the and there was no lease could sale Shepheard, boy Patrick who attended' On boy nearby, playing with another military but lived school Looking they around the cafe. the kitchen window could something thought water, they silver, they see They spoke running could hear on dishes. of this to plainly They Farmer, sitting porch. opened who was opened inside door outer screen door of the cafe and also they away thought inches, three then ran because securely doing wrong. This door was shut discovery body of Mrs. locked at the time of defendant’s *9 again play- Patrick was days later when or five Struck. Four lis- and in same window cafe, ing peered around the he running. water meter longer The no tened, but the water was in days consumption over greatly increased water showed had consumed have been as would question, not as milch but April from period during running the entire the water been boy police in a April 5th to 18th at the volume fixed discovery murder. test had after 18th April off on turned the insists that he water officers body and called discovery made his he had theory computations police to the scene. Under the On the 9th. must been off about turned water rent, Farmer collect date called on Mrs. to latter write out her rent ill and He sat down to and seemed nervous. inquired He as Mrs. Struck’s receipt, contrary to his custom. had any asked if noises been heard at whereabouts and feelings had He hard down he keep cafe. said that order falsely gallon she bring come to of shellac which Struck he losing. complain about her accused him of He did not had theretofore done. April 17th, Salatich, Mr. suggestion
On at the the de- Station, Highland fendant at the Park Police identified called himself, Struck, told difficulties with Mrs. exhibited the sale, way in, asked if could force his memorandum and get police first saying any not want to trouble. The did they nothing case do said it was a civil and that to with Salatich, it, said, according later report to defendant’s up. they ahead in back him go that defendant should and would following day, Sunday, April Mr. neighbor, On the Dietz, open claims to have the front door of seen defendant a.m., and inside. was the cafe 7 or 7:15 walk Some doubt about upon the correctness of this recollection of the cast witness’ story date. is that he went the cafe about exact Defendant’s morning 18th, but still that time on the found the door and locked; gained entry by he returned ’clock o taking door, unhooking pushing then wire and the screen and opt reaching paper door, of a solid pane broken and through it. to unlock of the screen door indi- condition cated this tampering wire. partially door defendant saw dead and opening On shaken apparently body of Mrs. Struck and was
decomposed immediately apart- that he drove to sight. He states by the telephoned police. call away This blocks ment a few through came m. speech about 9:35 a. Defendant’s first at reported a sоmewhat incoherent. He identified himself and “murder.” When asked how he the woman mur- knew ought dered, he said she was dead and that to look body. stayed Defendant then returned to the cafe there police investigated while the its He claims condition. then running noticed sink, water off. produced sug- turned it He his memorandum of sale gested that the may motive have been rob Mrs. *10 the paid explanation $350 he had why her. In he of returned to his apartment to report discovery, telephon- instead of ing adjoining from the cafe or place, some defendant stated phone that the in it, the cafe was dead he when tried to use and that did change not have a nickel put in any other phone. police The state that defendant said wanted to nickel,” “save a against hold this remark him. The wires of wall telephone the were found to be cut the close to instrument, but the cut was observable casual ob- servation. Defendant said he did not this know was what was wrong when he tried phone. use all officers found in police
The windows the cafe closed by except all gained doors locked one which defendant had entry. by piece ply The rear window was covered a of board. The well with food cafe was stocked and the ice boxes were filled the sink perishables. In was an accumulation of dirty general water and dishes. The condition of place sign by of preparations occupant showed no vacate but contrary interrupted on the that she indicated was while having cup Only her fingerprints quite a coffee. a not cup place. gas A empty jet coffee were found on, gas stove escaping. gas was but no was The turned was off found have been at the a turned outside meter with denied, turning wrench. Defendant at first but later admitted 6th 9th off on or on when he went collect the explanation His he thought Farmers’ rent. was that Mrs. away generally gas Struck at was knew she turned off meter, being and safer because of еasier some defect equipment. the inside holes, one-rusty were In the outside screen door two seeming recently one to have been cut a with wire or similar object. large newspaper ball of On the storeroom floor was through paneless pushed aperture said which defendant body lay in a The corner of the door. Although decomposed badly storeroom. it showed that fracture compound depressed of death was a immediate cause by skull, produced “the blunt which could have been shape although hammer, any a instrument of similar end of or other in- bloody garments, weapons, do that.” No could criminating objects connecting with the murder any possession, any were found in he at time make nor did guilt. Alongside body confession garden Mrs. Struck’s pronged tool, hoe, opinion but it autopsy surgeon by have been death could not caused this instrument. The possessed several hammers examined, having were but none gave evidence been used in the police murder. The claim one hammer mentioned possessions kept defendant was not found. His at his properties various showing any attempt and there is no part. concealment on his Deceased’s trailer was found to be good padlocked. order. It was locked padlock but not the cafe dining on shelf under counter. In the mattresses, trailer were beds without and in the cafe restrooms were two papers mattresses. Personal of the de- ceased places were found in cafe, various including her registration alien card and the answers lady to her lonely purse alongside advertisement. body was found a key to the front door. money There was some in the cash register, money alongside some it,of saucer, some in a and a *11 pennies few top box, on of an ice less than $5 all told. a purse in a shut drawer of the kitchen $26 table was or so in currency. A search any failed to reveal trace of $350 which defendant paid сlaims he Mrs. Struck. bank One account in her name containing was found $130, about a also parcel real property. assets, These clothing, furniture, and the like constitute estate. police very claim that defendant seemed to be nervous they cafe, at talking
while and that he was to himself. Defendant said the crime robbery later, looked like him; appeared money when it that the taken, had not been he said boy friends; that Mrs. Struck had also that it looked like German alien enemies had come there. April 18, 1943,
3. between Occurrences and November 1943, date arrest. April police
On key defendant returned to they given finding the cafe which had him on day it the before. brought April 20th, On scrap defendant paper officers printed “Keep in faintly pencil your which was on mouth shut sorry. I mean it.” On the bottom you or be will ‘ ‘‘ ’ ‘ ’ over, side, had This was scrip written the reverse on morning.” said the note my under door Tue Defendant during night he had his door and that been shoved under threatening life. eight telеphone his Hand- had seven or calls writing note to defendant. experts attribute the entire
On statement was taken defendant’s written 21st they were police, which he told them at the conclusion of they might every key possession, and that welcome to in his questioning search defen- properties. all of his After this day, April 22d, dant was On released. the next telephoned morning. They police o’clock proceeded they him in a state apartment his where a knock his he had answered excitement. He said that door; that had struck him so that he became uncon- someone tied with ; scious when he awoke he found himself and that burning quilt head; towel over his that and with a struggled free, put police. Noth- fire, out the and called the ing apartment The towel seemed to be disturbed. quilt partly burned, open. drawer was A was defendant’s singed slightly, hair four little was he had three or they though might scratches on his forehead which looked as fully have been A loaded sharp made with instrument. revolvеr was also stated that his assailant found. Defendant probably calling phone man him who had been during past week, possibly men he had seen one of the around the table with Mrs. Struck. hospital. way he was taken to the On the doctor,
continually pinching twisting cheek. But the his examination, nothing after an to indicate said he could find placed defendant had been unconscious. Defendant finally under said he questioning arrest and after further talk 3 o’clock would no more matter. Around about the day the afternoon of the same he is said to admitted finding a story previous story that both note however, trial, under his door were fabricated. On the testified to events as he had never told true and said police of con- hoax; under pressure were a standing questioning policemen tinued of five and the threat merely stomach, over him jump as if about to he had *12 said, your way.’-’ had lost about “Have own He said he pounds slept and had for six weeks. of sale copies so-called bill рolice found two of the $350, whereby articles defendant certain Mrs. sold no copy, pencil, made indelible reserved others. One remaining box; other by reservation Mrs. ice the Struck of by listing “smalest copy, in the plain pencil, made reservation Frigidare,” copy pencil indelible listed “smaller where the ’ “ ’ Table. K M. A. purported signature, contain O Both the plain Struck.” Defendant claims that the memorandum original pencil prepared by copy him as for his files, signed theory original. Mrs. Struck It is the that testimony of prosecution, by supported handwrit- ing experts papers thoroughly who studied the and tested them with rays, writing the one infra-red that indelible on by originally substituted defendant for what was on the paper; signature K that the “O M. A. Struck” was traced pencil genuine sig-
defendant in indelible over Mrs. Struck’s ; nature forgery planned and that of this means get possession remaining which ice box intended to reserve from the sale. Defendant not offer did any expert handwriting testimony experts in rebuttal. The also testified that was the author both the hand- writing printing Note,” the “I Mean it police claim perpetrated a hoax them.
Although only fingerprints Mrs. Struck were found cafe, police prints defendant told the would also be found. In a conversation with police garden stated he had alongside used the tool body to clean pipe finger- Struck’s the sewer out and that his prints probably would When police be found on it. stated an intention scrapings finger to take from under his nails and blood, test them for defendant said he had cut while himself shaving previously they weeks find would blood under right the nails hand; also cut himself on the time, they left side of the neck the same so would also find blood under prosecution the nails that hand. The previous claims these incredible, eager explana- and too tions clearly guilt. are indicative
On 3, grand jury November reopened investigation case, knew, police as defendant looked day night. They for defendant all placed and at a small piece jamb leading wood of the door to defendant’s apartment Back Hurry Cafe, if over so could tell
416 4th, opened. they returned November was When
door they get reply to could no the wood had fallen out their they finally poundings. When inside found defen- went 30 feet running top away. of the roof to dant across the said, shoot; don’t Defendant and “Don’t shoot. turned police thought theory men.” It is the holdup I it was that, anticipating arrest, prepar- his and defendant had been pencil he had ing flight. They found notes on which get against an attorney enjunetion “Tell to dis- written referring turbing (apparently that box” to second ice “Pay gas Struck, had listed such items as box of Mrs. and $1,149.49 in carrying ...” Pay water. Defendant cash. large carry a sum not unusual for He claimed that so preparing town, him. When if he was to leave he asked any plan leaving the notes for denied such but stated his wife. convincing proof guilt prosecution
The finds defendant’s many questionable and after occurrences before many Among things homicide. are The other these: com- plaints prior by against April Mrs. Struck made 5th, get vacate, her as contrasted and his constant efforts to complaints change April when with his of attitude anxiety giving gallon expressed ceased her unusually length patient of shellac. He over the seemed to be supposed man Paul Parmer whom states absence. gray threaten coat sleeve. De- he heard April gray days. wore a week Between 8th fendant coat on says was boy and 18th the cafe door which the Patrick un- locked, was turned locked became and the water faucet off. turning Defendant first and then later admitted off denied gas. 5th. The neon off after clock was making by that he enter the cafe use of showed knew how to paneless aperture rear He left door. could leaving his self-locking door trace front without entry. naturally Defendant, being carpenter, might choose hammer have been weapon. as a Defendant is said to seen actually entering mоrning the cafe about o’clock April 18th, says merely He did whereas he tried the door. report alleged discovery body his until two hours promptly later. Defendant police was nervous propounded sup- He is robbery spy his and German theories. signature posed forged to have the memoran- the victim’s alleged hoax to divert attempted dum of He acts sale. planned to suspicion allegedly He evade arrest. to others. incriminating are left without None of circumstances these explanation theory by defendant. contrary advanced some good any pleads record, ample income, absence evi- He crime, connecting directly him with commission of dence repossess the cafe perhaps absence of motive than other quickly box, age more secure the and nervousness ice pressure questioning. under police jury prolonged given After a trial the case was 10 m., February 14, They day, a. 1944. deliberated that *14 Februаry 15, testimony on 16 On the and 17th. the of Paul Farmer and that of were reread to the jurors. February 18th, On ill juror and an alternate became place. was substituted in her Deliberations were then con- day and, days’ tinued for the remainder of that recess, Monday, February were resumed on At 3:09 21st. p. guilty returned, m. verdict of with recommendation imprisonment. of life during deliberations, according
At some time the an bailiff, requested affidavit of the the him to forewoman ask judge the duty prosecu “Whether or not it was the of the tion or put the defense to on the defendant the scene.” bailiff relayed question judge this to the trial and was told by him jury to advise the “that they were concerned not anything that was not in the or the evidence law given to them the court.” The bailiff so the fore advised presence woman in jurors, whereupon the of the other one juror bailiff, words, said the “In the other rest it isn’t any business,” of our replied, guess bailiff “I the that’s it.” Affidavits jurors question of some of the aver that the asked upon was “whether it wаs incumbent the prosecution to show the whereabouts of the on ’’ or duty whether defense, such rested the that when the apprised bailiff juror said, reply them of the court’s one words, business,” “In other none of its our which the bailiff replied, just “That’s about it.” Defendant’s attor neys present during not procedure this and were not place. advised of what had taken
This instruction jury through agency the the bailiff obviously procedure prescribed by violative of sec- (cid:127) tions 1138 and 1043 of the Penal Code. The section first cited 418 deliberation, have for
provides jury “After retired any disagreement between them as to the testi- if there be any they point law mony, or if to be informed desire require arising cause, they the officer to conduct must brought Upon being court, the infor- into court. into them n mation given of, or after required presence must be to, attorney, and the defendant or coun- notice the district ’’ 1043 they been called. states that sel, or after Section felony prosecution defеndant must be “If be personally present at the trial.’’ denying defendant’s motion for a new trial court ground jurors refused to consider the affidavits impeach their verdict. could not such means own ‘‘ ’’; appealed only judgment from and sentence denying Upon ap from order new trial. however, in connection peal judgment, any from the error Code, jury may (Pen. charge to be reviewed with the 1259). this assuming Even the courts of state § recognition that, without minority are committed to the rule influences, any exception relating improper extraneous improper charge jury, misconduct officer affidavits, testimony, judge, communications of impeach depositions jurors their own are inadmissible to Cal.App.2d P.2d (Maffeo Holmes, 292, 295 verdict v. 47 [117 Inc., Mayo, v. Luther T. 948], cited; De Garmo and cases 61, 41; 90 Cal.App.2d 366]; p. P.2d Cal.Jur. § [41 *15 rec 249; 518), present 146 A.L.R. A.L.R. nevertheless presentation for ord there remains foundation a sufficient point bailiff upon the the uncontradicted affidavits the of counsel for defеndant. if respondent that the communica
But
contends
even
jury was im
judge through
tion
the
bailiff
the
rights
proper,
of the defendant
it did not affect
substantial
VI,
(Const., art.
prejudicial,
or constitute
reversible error
prejudicial must
§4%). Whether
character is
error
this
of the
analysis
particular
facts
depend upon
the last
respondent
Among
upon by
individual ease.
the cases relied
People
nonprejudicial
is
in which such error
found to be
627],
il
Alcalde,
P.2d
v.
Cal.2d
[148
foreman
lustrates the factual distinction. There the
asking
a decision
jury
judge
“May
sent
we render
a note
judge
The
eligible
parolef”
not
imprisonment
of life
‘No’.’’
paper
is
returned the
the notation “The answer
court,
commenting upon
impropriety
This
procedure, said:
instance the court could not
“But
this
responded
equiva
‘No’
answer
or its
any other
than
lent, namely,
guided solely by jury
was to be
already given.
judge
instructions
The answer of the trial
properly
objection
could
have been made over the
of the de
оrdinary procedure
fendant or
counsel
if the
had been
episode
followed.
may
prejudicial,
The
be
deemed to be
justify
judgment
and would therefore not
a reversal of the
or of the order denying
the motion for
new trial.’’ How
ever, it is
practically
also said that"
are
“courts
unanimous
in holding
private
communications between court and
jury are improper,
all
and that
communications should be
open
made in
(Dodge
States,
court.
v. United
The case practice question is one in which the only must not condemned, be but must be held to have consti- tuted reversible error. not, Here there as in the Alcalde cases, and like overwhelming guilt. evidence of On the con- trary the evidence defendant’s connection with the mur- der largely is possibility circumstantial. presence The of his at the scene of crime, assuming it was committed evening upon testimony rests of a frightened fifteen-year-old boy merely gray who observed a coatsleeve and an unreсognizable bloody man’s voice. No garments, weapons, objects incriminating were possession. defendant’s guilt. There were no confessions of Many of alleged incriminating circumstances are as con- sistent with guilt. innocence as with Where evidence is such jury that the reasonably could opposite have arrived at con- clusions therefrom, a procedure definite error in may well be sufficient to against turn who, the scales a defendant with- interposition out the error, might of such acquitted. be question upon jurors sought which the the advice of the judge trial pertinent was a one—whether it was incumbent prosecution or the defense to show the whereabouts of the defendant at supposed time the murder. The reply sent in jury to the room seems to interpreted have been as meaning that the matter jury’s was none of business. clearly This was question incorrect. The touched subjects of proof burden of presumption of innocence. It indicated jurоrs that the in grave doubt, and unaware *16 fact that it was not acquittal essential to for in jury effect that the alibi. instruct an To
to establish question in were “none the time at whereabouts of defendant the most them one of misadvise their business” was to charge procedure Both the phases the case. vital reversible error under employed delivering in it constituted of this the circumstances case. VI, (Const., justice” art. “miscarriage
The phrase 513, 524 Wilson, Cal.App. §4%), People in v. as said guilty has a man simply mean that 971], P. “does not [138 is It man has been convicted. escaped, or an innocent that acquittal or the con applicable to cases where equally in which the has form trial resulted from some viction rights dis people essential given right in regarded of the accused or denied. according law, substantially trial, a fair case to conducted country right inhabitants of the is at the time of all same might some protection against procedure at time liberty.” also, Pеople illegally deprive (See, life or them of People Dail, supra; People Albertson, supra, 553; v. p. v. at Silver, supra.) v. prejudicially that it was errone contends Hayden. proffered testimony Orpha
ous to exclude from Mrs. she lived the street That witness testified that across practically day; last ate every Struck and saw her that she m.; she Saturday, p. at the cafe on 3d at that then down town and when there was “back went she returned sign by the cafe door; p. later” that at 6 m. she went sign looking through glass she down, saw peas Mrs. Struck coffee and counter where end fix customarily vegetables; inquired sat to that thereafter she day every again. for Mrs. Struck but never saw her proof An offer of then made that the witness would Mrs. testify she “had conversation with Struck further that April 3rd, two weeks before at which time ice box and told her that she sold Mr. Weatherford an other $350.00; Cafe that she received trinkets Oh Johnnie’s Mrs. Weatherford; in cash from that she asked Struck $350.00 cheek, her in and she said pаid whether Weatherford cash or money Then the asked money he had belt. witness large around there such why kept money she deposited she. amounts, replied and Mrs. Struck fur- money deposit in a box a bank. This witness will safe
421 going to her that she told Mrs. Struck testify ther there, in two Cafe, business give up the leave Oh Johnnie’s to Mr. in there her interest weeks, she had sold out because testify further Yes, this will witness Weatherford. ... and was her business she sold told her because trailer take her going to through there she was down her, to be witness go in and invited the mountains, friend, a rest.” a take spend some time as into two testimony falls proffered It be noted that will relative victim categories: (1) of the deceased Declarations Declarations $350, (2) selling to defendant for to out go mountains. intent to into the relative to her hence, is denied; it hearsay not is is That the evidence type necessity for that only appears to be a admissible if there of its trustwor- probability of evidence and a circumstantial if within p. 202, 1420), and it falls (V Wigmore, thiness § ele- hearsay rule. All of these exception an to the accepted declarant creates present. ments are The death of being declarations, necessity hearsay for resort to mind, made in a natural present existing state of those of suspicion, carry the of manner and not under circumstances 80.) Wigmore, 1725, p. probability (VI of trustworthiness. § selling of her concerning the The decedent’s declarations receipt cafe interest in cash admissible under $350 hearsay permits evidence of exception rule which characterizing possession property declarations one in possession money (V Wigmore, receipts and statements of 1460, 219, p. 265, 1476, p. C.J.S., 247, 997; 281; p. 31 § § § § p. 963), or, act or declaration as codified this state: “The against person deceased done made interest re or spect 1870(4); 10 property” (Code Proc., his real Civil § pp. 1097, seq.). Cal.Jur. et concerning trip
The decedent’s intended declaratiоns her into the exception mountains were admissible under the hearsay rule which covers intent. The trial court evidence of recognized victim’s declarations the exis- deceased design, tence of plan, or intent to do an act are admissible rejecting as probable doing act, evidence of the for in the evidence he said: “So far as declarations to where issue, she go, the intent not intended of the deceased is having gone anywhere. because there is no evidence as to left, away If going away, she had been seen and driven might trailer, possibly there be a basis 422 go
evidence as to her particular place, intent or the some purpose going might any- be admissible. we But haven’t predicate thing to that on.” unduly ex- ruling,
In court restricted the so the trial only . intent are admissible eeption. of the The declarations evi doing act, also as probable as evidence As if not been done. the act has dence the intent еven itself plan “But, mind, as a by Wigmore, condition said Mr. design also, clear, present be evidenced under the may is ’’ as to its existence. Exception by person’s own statements see, also, Am.Jur. (VI 1725, 79, seq.; et 20 Wigmore, pp. § p. p. §344, p. 319; C.J.S., 1007; Cal.Jur. § 627], 315.) People Alcalde, 24 P.2d v. Cal.2d [148 § *18 go to her intention out with the deceased victim had declared defendant, the “Frank,” and the name of the which was inten to that the proof declaration was held be admissible as . case, how probably opinion tion The in that carried out. ever, 185-187) (pp. also wherein decedent’s reviews authorities merely the in of intent admitted to show declarations were People itself, tent regardless of it carried out. whether was Selby, 426], example, v. 198 426 P. declarations Cal. for [245 sui of mind to refute the admitted to show a condition In New cide defendant. theory, but not to the motive of show involving Mason, York death Ins. Co. v. 272 F. Life gunshot, intention expressions negativing an the deceased’s may admissible, of many suicide were held and similar cаses are, admissibility only be found. The essential to elements case, tend stated in the Alcalde “that declaration must made; prove intention the time it was declarant’s naturally it must circumstances which have been made under give issue verity utterance; to the it be relevant to an must ’’ in the case. and those $350
That both the declarations relative to trip main issue relative the intended are relevant to the case, guilt, of is obvious. The declara- defendant’s theory of tions rebut the that defendant payment $350 of the may equipment have Mrs. for her or interest killed Struck cafe, forged receipt. and admission Mrs. Struck’s strong paid by taking money belt, is money defendant from his testimony. bought corroboration of his own If cafe, and out, Struck she must have intended to vacate the for Thus, these must of that intent. motives have known re- if Furthermore, the murder are eliminated. 423 robbery killing, after the it was not $350 ceived than defendant. other killer the motive of some may been have rebuts go mountains into thе Similarly, of intent proof her out of the get theory defendant killed Mrs. intended that she inference susceptible It also of cafe. is may have trip she contemplation to vacate and that discovered than that possession in her money had more of theories prosecution’s body. These inferences rebut motive. There Alcalde ease.
This case is the converse the de identity of of intent an inference evidence led to intent leads murderer; the evidence fendant as the here may not any motive the inference that lacked that when Although is true been the murderer. the de brought home to perpetration of a crime has been unimportant becomes fendant, for the motive its commission 927], nev P.2d (People Planagan, Cal.App.2d v. [150 pre support ertheless, of motive tends to the “absence on the be reckoned sumption innocence”; it is “a fact to Albertson, 23 Cal.2d (People side v. of innocence” cited). here Thus, the intеntion 7], P.2d and cases there [145 clearly motive, deceased, bearing on the matter court ruling the trial guilt, relevant- to issue excluding prejudicial. evidence intention was such judgment reversed, is remanded is the cause a new trial. J., Traynor, Edmonds, J.,
Gibson, J., Shenk, J., C. Spence, J., concurred. *19 judgment upon both
SCHAUER, J. I concur (1) That opinion: grounds discussed principal the two through jury the bailiff to, effect,” “in error instruct is was bur- as to whether “none their business” it was time at the of the defendant proving den of the whereabouts People; defendant or upon of the crime rested hearsay testi- (2) proffered it was error to exclude concerning the de- admissions of mony Hayden witness and declarations against property cedent interest premises. as to her intent to leave the decedent fair to the rulings, however, it seems but making such pro- 1, number while the judge trial to note that as to error irregularity technically irregular pro- such cedure incident, prejudice opportunity vided the for the through placed seemingly real arose the construсtion mischief jurors message by acquiesced meaning language bailiff rather than from the inherent of the assertedly which, asserted, actually it is authorized. The message—that jurors authorized “were not concerned anything not in that was the evidence or the as law given to them the technically court”—was not inaccurate. A jurors reference to the that the instructions shows had been properly proof. instructed to the burden of as incident emphasizes the wisdom rule which forbids informal jurors communication with has been a case submitted (Cf. Pig’n them. v. Corp. McDowd Whistle (1945), 26 797], wherein, by court, Cal.2d 696 P.2d a divided it was [160 jurors permitted separate held that could be after submis sion cause, creating entirely thus opportunity for unsu pervised them.) informal communication with each of And 2, error excluding hearsay number insofar as concerns declaring statement of the decedent her intent to vacate the today premises, rely strongly upon People we v. Alcalde (April 26, 1944), seq. 627], Cal.2d et P.2d [148 which case has been decided since the trial in the case bar. A. No. 19038. In Bank.
[L. Dec. 1945.] Estate of PLAUT, LOW, LOUIS Deceased. NAN Minor,
etc., Appellant, al., Respon- v. SYLVIA PLAUT LOW et dents.