*1 proximate the death. all the cause of view of has been it cannot be held there presented, evidence miscarriage justice. attempted denying motion appeal order, judgment
for a new trial is dismissed. The is affirmed.
York, J., Doran, J., P. concurred. No. 4073. Second Div. Dist., Two. Mar.
[Crim. 1947.] PEOPLE, THE Respondent, v. JACKSON M. WEATHER
FORD, Appellant. *2 Jaffray R. Appellant. Ben Van Tress James for Attorney General, Howser, Richards, Fred N. Frank Dep- Attorney General, uty Simpson, W. E. Attorney, District Sullivan, Jere Robert Wheeler and J. Miller Leavy, J. Dep- Attorneys, uty Respondent. District MOORE, By presented indictment P. J. November Mary accused murder of one An After a trial nette second Struck. verdict was returned on 14, 1946, finding guilty him charged June with recommen imprisonment. dation of life From both judgment *3 denying order new trial appeal. the a comes this Appellant upon bases his demand for reversal insufficiency the of the giving evidence and errors and refusing instructions.
The Evidence Is Sufficient appeal. This is the second In opinion an (27 elaborate Cal.2d 753]) Supreme 401 P.2d the Court [164 reversed the first judgment (1) proof because the received at the first trial was wholly circumstantial; (2) many there were conflicting in- therefrom; (3) illegal procedure ferences dedueible in the communications between the jury court and the through the agency of bailiff, the which constituted reversible error under particular “the facts of the case”; individual (4) the advice sought pertinent question was on the prove of who should the presence of defendant the at scene of the murder, judge the returned an reply; (5) incorrect there was not “overwhelming guilt” People evidence of as in v. Alcalde, 24 Cal.2d 177 P.2d (6) : “the evidence is such that [148 627] jury reasonably the could arrived opposite have at conclu- sions”; (7) rejection testimony of declarations of deceased. only
Not present is the record devoid of errors, such the but by adopted jury by evidence testimony is reinforced at crime and the scene of the a witness who saw testimony also, And the incrimi by the other witnesses. multiplied first trial were nating circumstances detailed Although commonplace at the second. and burnished may implied findings repeat be the law that amiss upset reviewing upon court unless jury cannot be hypothesis whatever is there sufficient substantial evidence no jury approved by support conclusion reached reasonably “if the judge, the trial and that circumstances justify opinion reviewing . . court the verdict . might reasonably also be reconciled that those circumstances of the defendant will not warrant inter with the innocence jury.” (People with the determination of the v. New ference land, 678, 778]; People Woo, P.2d v. 15 Cal.2d 681 [104 Although 315, 389].) appellate P. an Cal. 326 [184 in- approve upon a verdict evidence court will not based herently come improbable, unusual circumstances do not not, unusual, within classification and because con- will rejection justify the basis of a reversal. To stitute testimony jury must exist either a that convinced the there ap- be physical impossibility falsity that it is true or must its parent (People resorting without to inferences deductions. though- Huston, 758].) Even 21 Cal.2d justifiable testimony subject adopted suspicion, justify the reversal of suspicion still such does not judgment deriving is the function of of which exclusive (Ibid.) and classic rules the trial court. With such ancient summary proof of the guidance considering appeal this an af- presented trial will demonstrate that upon the second firmance is unavoidable.
I Unsatisfactory Tenant Deceased Was Mary December, Annette leased to in the Oh Cafe at 100 North Avenue Struck the Johnnie’s Angeles. community city Highland Los Park gross years per of her term at a rental of five cent was five ad” receipts.* They reply met her “lonesome after *4 with her newspaper. in a Prior local to his transaction monthly. Their rela $100 income from the cafe had over he occupancy. While after her tions became strained soon would patronage induce her to her she endeavored enhance they acted gave basis, but per her on seven cent *AIso he a lease required per upon payment of cent. that which her five to sell her He sued her so, preferring interests. once not do ostensibly they but continued for some time $11.25 Although friendly shopped At times he for her. she terms. weekly agreed excused her own had to settle she dereliction 17, 1943, appellant wait until March when and forced accounting. they only About latter they had their date He agreed that she would leave the cafe on March 1943. quit pay rent or he a notice to about March served papers, with eviction her served her terminated lease and per month. $50 fixed her rental at
Appellant Complains Bitterly of Deceased During period preceding April 5, 1943, of Mrs. the date death, Struck’s whenever met Mrs. Mrs. Parmer or Miller, cafe, spoke bitterly resided who near the he of deceased dirty filthy and of how parked she was. had her She adjacent trailer on lot to the cafe. He showed the two neighbors the human excrement near the trailer in which she very slept. He was floor, declaring nervous walked the filthiest, dirtiest, deceased was the nastiest woman he had with, gesticulations ever dealt and with vehement declared he anything get would do telephoned her out of the cafe. He the health authorities her violating about sanitation laws and Mr. and Mrs. asked Parmer complaint. to make He angry, was upset and nervous March when he Dank, talked with Mr. realty licensed operator, explaining his trouble with Mrs. Struck in that she violated the rationing federal law and constantly laws; violated the health that she supposed to have a lease he signed but did it; not believe he had forged it; per she that five cent receipts cafe’s pay should more than the only $30 as shown two received; checks he had that Mrs. Struck crooked, stealing money from him. He induced Dauk to have her list the cafe for sale with him but to let her appel- know that anything lant had to do with it more; as she would demand $1,000 that the she asked was too much. April 3, About ain conversation with Reese Parmer appellant stated that decedent claimed to have a lease on Oh Cafe; Johnnie that he would very like get much out; her that he had another who wanted property. lease Late March told a police officer that he had leased the Oh Johnnie to Mrs. Struck; checking up after thought taking she was out *5 silver, and search the pans, and asked the officer to pots,
Ms cafe. Her
She Foils His Efforts to Oust February Salatich, experienced operator an cafe In Steve company Highland area, appellant ap- Park in the monthly and rental to praised $60 the Oh Johnnie offered appellant months. After had increased to after three $75 be reported he to would with deceased Salatich that she conferred presence a week. In Salatich’s deceased told vacate within In subsequent to him. a appellant place to rent conversa- few his tenant would out in a appellant tion told Salatich be given days. report to was that had not His Salatich she next her key; get him he not to leave. About March that could dressing cafe and found Mrs. visited the Struck Salatich lady After go city present. with a friend who was to into volley friend that had cursed a stated to Salatich deceased be going “to of mine to what can they were see friend see , putting keeping Mr. Weatherford from her out.” done about again. never Mrs. Struck Salatich saw early appellant Branham, asked Jack who In March cook formerly Johnnie, appraise equipment in the Oh to had worked reported $350 there. He did so and that it was worth way to get Mrs. Struck out was and that best to $400 to de buy as much as In conversation with $500. her out for him told Branham as an inducement to to work ceased she In conversation with her she had an ironclad contract. con had no appellant Mr. Branham was told Mrs. Struck he ; but looked like wanted her out of cafe it tract “If get Branham, to appellant her out. Later said could not go and you go work; there steal that contract will down and you you.” He I what I bring pay . . it to me will double owe . former tenant an debt which a $135 there referred to old appellant and which cafe had owed Branham they offered appellant Later when met on street assumed. ‘‘ . Mary building . $2,500 get . Struck out Branham . way you mean . . any get can her and I out her out out Get rid you get I good give $2,500 of her for ... will Get rid woman.” of that Hayden Orpha early deceased March took deceased Back and there tried to induce Hurry
to see the Cafe she Johnnie, but Hurry Oh Back instead to take “ going mountains— it; planning to the did not like She change.” she would want Reports Heb He Authorities February 15, reported city About sanita- living inspector that deceased was in a Oh tion trailer unsanitary operating Johnnie the cafe in Cafe inspector' place visited the her to manner. The instructed sleeping cease there. On his next visit he found a bed vehicle, mattress in the but at later visit found in no still inspect He sleeping equipment. did not the restaurant’s *6 toilets.
February 13, appellant complained to the O.P.A. of dece- report sugar February 20, dent’s failure to on hand. he On pounds sugar exhibited 165 which he asserted had illegally stored deceased.
Appellant’s Deceptive Concerning Remarks Decedent April After April appellant told he bought Salatich dece- out dent for and (Exhibit $350 exhibited bill 19), of sale where- upon Salatich remarked that he “didn’t know she had that much stuff in there.” display That conversation and days bill of sale prior was about five discovery of her body. However, days two after he had shown Salatich the prospective document told he his tenant that Mrs. Struck had gone to and he Fresno did not know what to do. About three days decaying corpse before the attorney was found Salatich’s appellant advised to enter Oh sug- Johnnie Cafe. Salatich gested that he first confer with the police. Fabmeb,
Paul Witness to the Final Scene April 5, 1943, Farmer, age 15, Paul parents lived with his Figueroa at 4993 N. prior Street. About week to April 5, appellant he saw and deceased outside of the rear of the angry. Appellant cafe storeroom. Both were then Mrs. told Struck he wanted her to and get leave that if did he not the lease he going something to do reply drastic. Her get was that got she would good ready. out when she and On evening April 5, having newspaper route, delivered his Paul Finding arrived home about 7:30 m. present one no p. put he on cook, some food to took his sandwich bedroom, to his opened turned previous radio the window. On he had appellant occasions heard and Mrs. Struck talk to- gether. sitting open While he window heard unusual coming noises from Oh Johnnie’s people cussing cafe like “two ’’ distinguished He other. Mrs. Struck’s voice
each yelling loudly man. Deceased was of a more voice He understand her and had trouble at all could no two. hearing them. He back his curtain and looked both of drew cafe about the rear window the storeroom which was into away. nor feet Neither blind curtain obscured his view. Through passageway the storeroom window and into the dining cafe into the room. The store- kitchen he could see lighted as he watched and listened for two room about recognized minutes. saw and both Mrs. Struck and Mr. He gray latter a medium suit he did Weatherford. The wore but (Subsequently appellant wear hat. told the officers that gray April 5.) appellant’s suit on Paul knew he wore his other, appellant facing near de- voice. The two were each passage- in the stood storeroom entrance to the ceased. She Appellant way into kitchen. neck to was visible directly foot from knees stood about a in front as facing her back of Mrs. Struck with his toward the window Although through they Paul observed. talked in about quite pitch the same Mrs. Struck’s loud. raised She voice anger little her increased. Paul could her it a understand sides, first deceased held her hands her but words. At cried, no,” “No, she moved her hands when she away body palms out, put from her with the her hands up as talked. *7 having juncture, this for about two about observed
At minutes, that pulled Paul the curtain back over his window so the While he listened to the he could not see into storeroom. in about the same radio the voices from the cafe continued approximately minutes heard the loud volume. In two he in the cafe. then turned out all the scream of a woman He house, pulled curtain, in and for five lights his back the gaze cafe window. ten minutes turned his toward the storeroom no there. Though lighted cafe still he could see one the was it. something over window blacked out The storeroom light Only were visible at two and inches of about one-half the were top. lights five minutes in cafe the After about the the one leave extinguished. During his Paul saw no watch nor the front door cafe but he could see neither rear the Frightened, into the storeroom. either of the two outside doors house, finished his never boy lights on all the the turned night After that up in his bed. evening meal, covered himself again. never he saw Mrs. Struck identifying appellant not explanation for Paul’s at the had seen in as the man he former trial storeroom with Mrs. appellant might fear that was his do harm Struck family. gave Farmer Prior to the afternoon on which he testimony trial he had any at the second not told official that identify appellant party present as the could in the store- night April 5. When parents boy room on the p. they 11 m. returned home about knocked door, on the windows, rattled the and called their son but he did let they gained in. After them had entrance they into their home up, in bed and although found Paul covered awake, he was scared, nervous, in appeared a sweat and to be ill.
Silent Witnesses (1) When the Farmers left home about 7 o’clock that lights evening burning neon were on the clock in the cafe. Looking place into the lighted on his return for clock, Mr. Farmer observed lights there were that no in the cafe. Prior always that occasion the clock lighted when Mr. Farmer passed way night. (2) on his home at When appellant met Hayden Orpha April near the cafe inquired on as to decedent, appellant’s response was: “Well, she closes on Mon- day.” (3) When called at the Farmer home April 9, to collect rent Paul observed that he was nervous and weak. He told his mother that the man Appellant was sick. inquired of Mrs. Farmer whether she had seen Mrs. Struck days. (4) last few After she had nega- answered tive he asked if any her she had heard noises down at the (5) cafe. receiving On negative another reply he told her way that he was on his to return a can of shellac which Mrs. Struck had him losing accused when he moved her into cafe, (6) gone Struck Mrs. trip, on a (7) while he did not know her guessed whereabouts he she visiting relatives.
(8) Notwithstanding appellant’s police account to the he had shut off water in the kitchen cafe on the morning April 18, and that running it was that time big your stream “as finger,” must have determined falsity of his they experience utterance when heard the Shephard, Patrick years age a lad 12 who at time of the trial lived near played vicinity. the cafe and in that *8 While he was play there Monday April at on a certain when it appeared closed, through that the cafe was he looked into the kitchen and heard
the cafe a stream of water run- ning opened into the sink on some dishes. He the door near kitchen three inches, frightened the window about then at away. reported his own boldness he ran Later he experience placed to Mrs. Farmer who the April occurrence on 8. Four days boy the again five later returned to the cafe and looked running listened. No water was at that time from the same (9) At a presence faucet. later time in the representatives attorney’s boy adjusted district officethe the water run in the sink at the rate it April maintained on A8. mea- sure of rate of flow determined that flowing it was at gallons per computation by rate of three minute. A witnesses required of the time for water to flow the of three rate gallons per minute disclosed that if the water had been turned morning April 18, off on had stated to police, registered 7,230 meter would have cubic feet of 2,400 actually water instead of cubic which pass feet did through approximately the meter. The latter amount is quantity passed through that would have the meter between days April 5, April 8, and several after Shephard when Pat longer running. could no hear water (10) gas in jets dining The officersfound no room on the range. many gas After denials that he had turned off the appellant finally admitted to Officer Ledbetter that he had April 6, thinking city shut it off on gone deceased had During Bishop. the two full months of deceased’s occu- pancy average monthly her consumption gas 5,650 was daily average feet, Only 1,500 cubic of 188 cubic feet. cubic April feet were used from March 27 23. Such amount ordinarily the same would have she consumed from March April 5. (11) lady’s floor; purse Coins were found on the in a currency totaling kitchen table drawer contained less than $4.00. $350 Nowhere could authorities find a trace of the her paid which asserted her. The total of money deposit in a bank $134.64.
(12) appellant’s pur- In checking statement that he had refrigerator docu- chased deceased’s the officers searched for a might $350, refer to its sale for but none could ment 19, having photographed be found. Exhibit process, infra-red revealed to document. be an altered Among originally refrigerator. It bill of sale of evidencing transae- effects of deceased were several documents
679 EXHIBIT appellant,
tions between her and to wit: 23, Exhibits 21 and per two rental contracts for 7 cent and 5 per cent of gross receipts; pay quit; agreement notice to rent or space rental; for trailer an affidavit for the small claims court writing —all in appellant. typewritten Also there was a notice days, 3, to vacate dated March signed by the hand of Mr. Weatherford.
(13) April 5, On the afternoon of o’clock, at about 4:30 Mrs. Farmer saw deceased on Avenue about one-half block cafe, walking it, carrying
from the toward shopping four full bags. This was effect a contradiction appellant’s state- decedent had going to witnesses that said she was ment the mountains.
(14) Mrs. Farmer was at home at 9:35 a. onm. April 18, telephone and had a nonmetered might notifying police discovery. have used for The of his telephone April two wires the cafe into were on found to cut have been with a dull instrument.
(15) investigators having concluded that death had probably resulted from the hammer, blow of a asked description for a of such possessed. hammers as he All but one found. were
(16) police When the scenting entered the storeroom after *10 decomposed they the only flesh observed that its window was piece covered with a plywood light. which excluded the practically glass. was It the same dimensions as It was the through this window Paul Farmer quarrel which witnessed the April any 5. Other than the premises owner of the would stopped one have pane to cover the window ?
(17) When an officer told him to allow the residue to be finger removed from beneath his nails to see whether it con- any blood, appellant tained stated that he two weeks before had cut himself while shaving that he had used a “short styptic pencil you fingernails will find blood under the ’’ my left why styptic hand. When asked he did not use the pencil just replied one hand he that had used both he hands. When 4, 1943, arrested on November he locked was in apartment ap- where he lived alone. While he was parently planning the to to evade officers he wrote notes injunction against disturbing inform his wife about “an $1,149.49 ice box.” He had person, on his evidence of flight. intended
(18) April 5, repeated After he never criticisms his violent deceased as he had made to Mrs. Farmer. (19) parked place He no in accustomed at time car its by April April the cafe between 5 and 18.
(20) six weeks pounds weight during He lost the night. prior April 21, hours a sleep and did not over two Apbil Appellant's Afteb Activities (1) com April 17, appellant very On excited state running plained to detective bureau that deceased was the loss; receipt out; produced his cafe at a he wanted her paid 29*. He he had said that Exhibit like looked equipment but did not know where of her for some $350 her though time; that she had been for some was or had been she He wished to be certain it was now locked. living in trailer (2) he entered cafe. On get into if trouble he would day rotten offensive odor of flesh evening the same atmosphere proved the cafe. near Such permeated only porch front feet from by Farmer whose Mrs. following morning appellant On the cafe. rear door probably 7 o’clock. deter place about opened by had become distressed the ill-scented mined that he too discovery However, did not to announce his he venture airs. he did hour. That enter front door of the cafe morning at 7 that same o’clock was established the testi mony Dietz near by of the witness who lived and whose office yards was about 200 north cafe and on the of the same side had appellant of the street. He seen two or times three a week prior April morning in or near the cafe 5. On message required 18th a his home him go to his office. arrived along He there at 7:10. As walked he the street on opposite the side the cafe his attention ap was attracted pellant’s entering and closing the front place. door of the Appellant turning the knob when first noticed Dietz. At nine o’clock returned and place, entered then apartment drove back to his to telephone police. After (3) 10 o’clock while police were there witness heard tell the officers that he had come the cafe on several occasions but found one place no ap there and the peared closed; to be that when first called at 7 o’clock *11 the front locked, door was as it had been occasions, on other he but had at 9 gained returned a. m. he when entrance at the through aperture rear previous caused a removal aof pane before, and body months thus found the deceased; discovering and that on body he apart returned to his away six ment notify police. blocks to His excuse for using telephone in the cafe or across the street was to "save a nickel.”
(4) During the visit very nervous, of the officers he was walking talking from front to rear, mumbling. After parrying inquiry his the officer him question, asked the same *The contents of Exhibit are almost identical with those of Exhibit 19, but graphite it is pencil written a constituting and the words receipt and the list articles on paper. reserved are both sides you response think was, “Why
“What do about this? His robbery.” asked, money it like a He looks then “Where is the ’’ gave brought writing that I her ? He forth a pocket from his (Exhibit 19) explained he bill “a of sale and the .which things supposed there on she to reserve for I ... herself. bought an ice box from her for $350.” answer Officer to disagreements Pinker he that there had been stated no or deceased; promised difficulties with that she had vacate to early date, at an and offered the bill of sale in verification of his declaration.
(5) appellant, About 9 :35 a. m. excited and incoherent of speech, reported discovery body police. He told them it murder he had because not seen his tenant days; attorney several advised him as owner right he had a to break into the house.
Questioned padlock about ap- found under the counter pellant knowledge, at first denied denied ownership, denied having ever seen before. He later admitted that he had used pursuant it to lock the trailer to orders of the Board of Health. keys An examination of the trailer use of found under the gone. They counter disclosed the mattresses were were later found one of the lavatories.
His Statements to the Police and His on and Activities April Subsequent ¿he After discovery corpse appellant told the officers Sunday, April he last saw deceased alive on 4, about 6:30 any a. m.' and that he never in the cafe more until he Sunday opened 18th; it on that he had talked the business rejected with her on March when she $150 his offer of over agreed accept for her ice box but $350 for ice box things; money a few other that he then went for the and on returning (Exhibit 19) made a memorandum things particular she wished to reserve. He was not about bill of sale but when wrote it and on the $350 he laid pencil, signed A.”; table she took a made an O.K. and it “M. print that when she name her write started her he told pencil; it with his indelible that after she had traced signature other him but promised possession she on March drayman refrigerator when the' called to move the to another stay permission longer up cafe she asked a little to use supplies hand; place rather than have closed permitted Friday remain; said he her to that on before closing gallon final the cafe shellac she desired white *12 bought 33; that he apartment on Avenue of her floors for the give the address April he could on but the shellac purchase; that on the had made shop where he paint but day to the cafe with shellac he went afternoon auto- out; had the shellac in his that he still Mrs. Struck had However, it could not be found. He said he mobile. Figueroa but Street, at about N. purchased the shellac found merchandise was the sale shop no vicinity. officers by Appellant Attempted
Hoaxes friends, inquiry as to decedent’s male Answering an officer’s Mrs. night prior about three weeks to appellant said one disappearance he had come to the cafe at o’clock Struck’s talking sitting with her at the kitchen table and found men tongue, examining maps charts; strange that she in a get persons appellant out. He could not describe the told days admitted claimed have seen. Four later he to Officer he men had were Ledbetter that the he seen Steve Salatich and Winter, spies and that what he had said about German Leo was a hoax. days discovery appellant gave after of deceased
Two your follows, “Keep Ledbetter a note as mouth shut Officer you sorry. worried, be I mean it.” he will Nervous morning he under said that when arose that found the note eight telephone and that he had received door or nine calls threatening printed his life. Later he he had confessed that declaring, any note “we talk more.” won’t about April,
About 3 a. m. on the 22d of OfficersFator Weaver go appellant’s apartment answered a call to over some stores Figueroa they 5529 North arrived at 3:10 at Street. When appellant had a small dried his forehead amount of blood on small, uneven, and on his His nose. hair was ruffled and singed spot quarter directly in the the size of a was evident slight ap- back of his head. on his forehead Some abrasions peared sharp have been two made with a instrument. On slight An old temple or three cuts on his the blood had dried. quilt with old overcoat holes, small burnt a small towel and an betrayed arranged perpe- hoax which trate. He related that knock at the door there had been a m.; strange opening living 1:30 that on door a a. room entered, times man who with his fist several struck him said, you and knocked the face and “I’ll to talk” teach
unconscious; regaining that on consciousness about an hour half later his hands were tied with and a the towel and *13 over quilt him, smouldering. suspected old and coat were He agents party and the telephoned. Nazi who had An examina- by upon tion Officer Fator disclosed no evidence of a blow appellant. morning
Between 9 and 10 o’clock of the same Officer Led- appellant’s better called to make further in examination of juries. appellant He was told that when opened door his eye 1:30 a. m. him him someone struck in the and knocked unconscious; gone knots on his head from blows had superficial down. The officer found three or four less cuts long, than a half-inch an inch below the burned hair line. The place Photographs position was the size of a dime. of his left tied up quilt he was and of the burn on the were exhibited jury. Acting ac upon request appellant Ledbetter’s companied receiving hospital the officer to the ascertain injuries. way of his On the ob extent twisting right served his cheek with thumb and fore his finger. large right This resulted in a bruise cheek. At on his hospital requested complete the officer a examination appellant’s view of claim that he had been uncon rendered scious, repeated physician appellant’s statement that he hit over the head. The doctor testified that only injuries superficial; found were treatment was that no necessary; that he had not been rendered unconscious. When trying appel the doctor asked him “what pull he was off” why lant remained silent. When Ledbetter asked him he did appellant replied, not tell the truth the matter “We about they won’t discuss it further.” After had returned to my officer,‘‘1 up station admitted to the made all ap self. It From happen.” didn’t such dishonest behavior pellant guilt deduction. consciousness of was a reasonable Autopsy
The Oh the north. Johnnie Cafe faces North Avenue on Figueroa Its side near which extends north east stands Street rear through.its and south. east The officers entered the cafe They door opens found the decom- into storeroom. body posed foot of on the west side at the storeroom walk designed opening private door which had been as an to a that, leading door North Avenue 50. The threshold De- about floor. seven inches the level of the storeroom above lay cedent’s feet extended head while her toward that door door near her Figueroa Street. The the entrance toward and was so closed that two-panel construction solid, head is from the outside. The woman’s head opened not be it could body de- covered with blood and her crushed and destroyed frontals, was torn and over the The skull composed. inch the left in diameter was on a round hole one areas Other fractured were line of forehead. median autopsy of the head. The both the front and back found on her had been caused surgeon opined that the head blows to ordinary nail hammer. Appellant’s Forgeries Notwithstanding emphatic denials it was established Exhibit 29 handwriting experts that both sides of were all handwriting including purported appellant, in the It signature of deceased. is a list of reserved articles I receipt “payments full for all had at 100 North Ave- *14 50 named etc. nue less above articles” It was found in his apartment in drawer between two books. In the same drawer writings practice was a red covered notebook which contained paper similar to those on Exhibit 29. The of both Exhibits taken from and were that notebook. experts agreed substantially that The which is Exhibit original Exhibit is for the same as a substitute its contents. under-writing reproduced by photog- The erased infra-red raphy. ordinary A. “O.K. M. Struck” had first written in- pencil, being which after erased traced with carbon ‘‘ over-writing pencil. including delible All of the O.K. M. A. appellant. pos- proved to be that of From his Struck” forged by purporting session of documents his own hand but by person to have been written whom he detested and for jury pay $2,500, had could whose removal he offered to reasonably appellant’s guilt. an draw inference of
Appellant Avoids Cross-Examination against prisoner Despite all facts him the of the established complete explain direct made no offer to one of them. His question, negative examination consisted of answer to one Mary you to wit: “Did ever a woman name strike ’’ A. or known M. A. Struck disdain of circumstances Such deceased; attempts inimical which showed his hatred of his withholding cafe; provocation her at her to oust from the his receiving sub- property which have been his he could the witness quarrels her; request his rental; stantial his $2,500 the lease offer Branham steal and his to that wit- “get her”; rid of his statement ness to to Mesdames Farmer anything get that do Miller he would rid her and that something lease; he would do drastic if did not return the she forgeries receipts his of her for from him and the $350 non- discovery gained possession that ever evidence she had sum; quarrel that his with her in the instant cafe an before scream; her nonappearance final his at the cafe for two weeks following entry her disappearance; through the door his front m., delayed denied, at 7 a. which his announcement body— the morning April discovery 9:30 on of her of his required fact explain, facts the accused if he was in . jury finding innocent. The from silence were warranted his guilt. proof additional evidence of his was of a more Such presence serious than his have been in the nature silence would police accusing of the under similar accusation. Before maintaining suspect officer an innocent is often warranted in made silence. Not where so before the court final search may truth defend- depend upon and the outcome testimony explain. Appellant’s upon ant’s failure to his thumbing silence before the a derisive was tantamount of his nose at prosecution and the mass of evidence gone into inferences deducible from record. The explain failure to persuasive evidence. were and substantial They avenging proof added much the force circumstances which were own deeds. up built A Murder Proved Was autopsy The death disclosed deceased suffered that criminal means. There is not a indicate circumstance to she inflicted upon Everything the wounds her war own head. finding agency. ranted a she was the victim of a criminal only findings implied required scrutiny on the close *15 part the (1) of fact finders appellant applied were extinguished force that the life unfortunate woman (2) and that it done premeditation malice and with aforethought. night, His visit alone to her in' the when she unattended, quarrel apparent pur his with her without pose other up pitch, than to his blood to a work vicious his body beating of her extinct, strongly imply until life was malice; he acted with while his hostile complaints over a period of two proofs expressions and his months of hatred of her prove express such malice as constitutes element of an
687 752].) 507, P.2d Cook, 513 15 (People v. [102 Cal.2d murder. it was premeditation and with deliberation it was done Since mentioned in sec means unnecessary the use of the prove to crimes enumer one of the attempt tion 189 an commit the jury crime of the he was at the scene ated therein. That doubt, vice such inherent evidently for there was no had no it irreconcilable testimony Paul as to render in the Farmer appellant; position for boy recognized his with truth. The querulous only away; he heard feet observation was cry, her her hands heard voices; raise and he saw deceased heard her last “No, no,” though pleading, she and were supports the it substantial evidence and scream. Such was finding. (People Braun, Cal.2d jury’s implied v. [92 814].) ; People Farrington, 213 P.2d v. Cal. [2 402] case, positive and testimony in the is As said Braun where incumbent it perpetrated direct that the the crime is accused inherently he upon him incredible before to show that accuracy prevail. can identifica or doubtfulness tion, incompatibility any, "testimony, in if and un certainty solely witnesses, any, if were matters for the jury consideration of of the trial on the court motion trial, approved new and when the court has thus finding finding may not be disturbed on (People appeal. Farrington, supra, p. 463.) v.
That for the crime was had motive to be readily jury. inferred His irritation caused de unsavory lack personality, cedent’s of success her his zeal her her possession income, to oust in order to his increase tenacity resisting attempts gain stubborn possession, his perhaps $350, forgery his desire to his conceal to save may reasonably explain —all these motive for the deed. Thirty-three days after upon had served a notice to her she killed. appellant’s vacate The evidences of motive identify culprit. tended to him as the Evidence of adds motive guilt warp pattern woven circumstance. What legitimately ever proof fact tends proper show motive is (People Soeder, an assumed motive for the crime. 150 Cal. 1016].) P. 4, 1943, The fact that about November had on his person large money, apartment sum of any without explanation thereof, and that he had prepared instructions his wife for the business, care of certain show intention
688 escape apart flight. attempted At to
of that time he although under official surveillance ment he knew that he was might any time. that call at Such and the minions of the la-w to were attempt evidences and the attendant circumstances (People Hall, 451, 460 P. v. 199 be considered. Cal. [249 859].) So, also, forgery and of docu his false statements investigating proofs ments of to were his zeal mislead officers, they against ap justified and unfavorable inferences (People 51].) pellant. Peete, Cal.App. 333, 54 352 P. v. [202 For the owner of cafe with lease to a lone woman a under quarreled against complained whom he had he had and whom suspected dealing enemy whom in and he had of time war, pass making of for two weeks without cafe inquiry; for him to a to himself write note to induce falsely suspicion report officersto direct and that to others mysterious he had and assaulted made unconscious a person—these were attempts evidence of to direct search of the spies agencies. officers for Nazi or other evil
After a careful review of facts .the of this case there nothing justify (People found or excuse the v. homicide. Wells, 610, French, 10 ; People Cal.2d P.2d v. [76 493] People Cal.2d ; Thomas, P.2d 25 Cal.2d [87 1014] By 7].) of age reason and advanced life of clean predicament record his has been considered with unfeigned compassion. despite sympathy But neither any this court warp practice nor other can the’’rules slightest afford him comfort. The State exacts the com plete loyal every and service of agency her, that serves the judiciary exception. is no Under the authorities it must be held presented evidence to the was substantial justified-the finding guilty. This conclusion is derived despite the reversal of the first verdict which was rendered necessary by procedural opinion reason errors. That did sufficiency determine the wholly circumstantial support evidence to merely (1) a verdict but held instruction assumed the existence of a fact and that it was prejudicial eye in a no case where seen accused at crime, (2) scene that in conduct the court sending private a jury concerning communication to the pertinent incorrectly issue advising them is reversible error where evidence jury might reasonably is such against have found either for the accused.
II Prejudicial No Errors Instructions Given The proof against appellant consists in the main a web put circumstances and events evidence number only person witnesses. Paul Farmer is the testify *17 presence actual appellant of at the scene of the crime. At a former grand jury trial and before the he had refused to iden tify the accused as the man he had seen at the time when he heard and saw decedent and a in a heated argument, man by followed the woman’s scream. As shown in summary the on the April, 1946, years second trial in three crime, after the he argument testified that as he watched the of the deceased and the recognized man he that the latter was appellant. Be cause the evidence primarily consisted of circumstances and tardy because of Paul Farmer’s identification appellant of as the man he had seen quarreling at the scene crime, of the it is now contended language that the of the court’s instruc specified tions in particulars was erroneous prejudicial and under the doctrine in People announced Williams, v. 17 Cal. 142, 147, and that is entitled to a reversal notwith standing upon the constitutional ban setting judgment aside a in instructions, for error unless the entire record reveals a miscarriage justice. (Const., of VI, art. §4½.) quotes He from the court’s instruction on murder manslaughter and the following passage: “All murder which is committed will deliberately fully, and premeditatedly, is murder of the first degree. All other kinds of murder are of the degree.”* second Manslaughter *Murder and Murder is the unlawful Distinguished. Defined and killing of a being human with malice afore- (Pen. thought. Code, 187.) § may express implied. Such malice be or express It is is when there unlawfully manifested a away deliberate intention to take of a the life It implied fellow creature. is provocation when no appears, considerable attending or when the killing circumstances show an and abandoned (Pen. malignant §-188.) Code, heart. All willfully, murder which is deliberately committed pre- and meditatedly, degree. is murder of the first All other of are kinds murder (Pen. degree. of the Code, 189.) degrees second § dividing In Legislature murder into assign intended to deserving greater to the first as of punishment, all murders of a cruel and aggravated character, and to the second all other kinds of and murder, degree every establish a test of may case of be murder readily ascertained. degree cases murder of first be must killing willful, established that premeditated. was deliberate and may The test be thus killing say, stated: Is the willful—that is to premeditated? is, intentional—deliberate and the If it within the case falls not, first, if degree. within upon the second It must be formed preexisting reflection upon passion and not a sudden heat of sufficient “ follows; Code, 189, Penal reads as [Degrees Section perpetrated by poi- All murder which is means of murder.] son, by any lying wait, torture, or willful, or other kind of deliberate, premeditated killing, or which is committed attempt perpetrate in the perpetration arson, rape, or rob- mayhem, bery, burglary, or murder first degree; of the ’’ degree. all other kinds murders are of second paragraph Because from the absence second listing specified whereby the instruction means mur major perpetrated der is and of the names of the crimes in attempt perpetrate which a homicide becomes murder jury degree, first contends that the were not accurately adequately thereby instructed People Holt, (Citing 59, 70, v. prejudiced. Cal.2d Thomas, 25 21]; People P.2d Cal.2d [153 statutory 7].) argues “specific He enumeration given jury,” having and that not this measure could not decide whether the statute murder degree. or second Inasmuch as there no claim was first party decedent came to her death either means of torture, no claim poison, lying wait, that she was killed *18 perpetrating attempting or perpe- her assailant was to while necessary preclude lulling idea It is to be the of deliberation. act of the will, and of preceded the result a concurrence of deliberation and slayer, killing if premeditation is murder part case, on and is the the the (People Maughs, degree. 253, v. 149 in the first Cal. 263 [86 People Nichol, People Marine, 213-5; 211, v. 34 v. 61 187]; P. Cal. Cal. 369.) nothing in which the sections the Penal Code relate There is any Legislature assign particu subject, lar bring that the meant indicates process or in premeditation, the of deliberation order to period to must, however, period degree. first of time within the the act (People length premeditation. allow deliberation and be of sufficient 395.) Bealoba, You Cal. v. “pre- adjective that the “deliberate” and the verb instructed are well-known, in common, are used in these instructions their meditate” meanings. formed, at, means or de- dictionary Thus deliberate arrived thought weighing of considera- upon as a of careful and result termined tions; steadily, coolly on judgment plan; or carried and a deliberate arguments with preconceived design; weighing a facts and according to consequences decision; considering in the a view choice or careful to a by reflection; dispassionate; not unhurried; step; a characterized means, examination of the careful and consideration rash. Deliberation “premeditate” against The verb and a choice or measure. reasons for beforehand; mind, and in to contrive revolve the means to think Bender, 8].) (People design 27 Cal.2d P.2d previously. v. [163 killing of a unlawful degree the in the is defined as second Murder delibera- willfulness, without being aforethought, but human with malice tion, premeditation. (with aforethought) (with killing If is malice the unlawful done offense to passion) which reduces the provocation and sudden out the robbery, burglary mayhem, arson, rape, or it was un- trate effecting necessary mention those means homicide or there enumerated. Inasmuch it the crimes as was not con- killing she came to her death another kind tended that premeditated, deliberate and it willful, than was therefore upon only the court to advise incumbent with refer- committed, e., willfully, i. deliberately ence to a murder so premeditatedly, in order to it constitute murder in the quoted degree. portion The effect of the first of the instruc- manslaughter say tion on murder and was to that if the mur- willful, premeditated der deliberate and was not it was of the degree. reading second A of the instruction discloses that it generously topics comprise treats of the a fair instruction language in a case of murder and that its is worded with care. attacking engaged has in a series of dialectical jibes by discoursing upon passages several taken from their settings. illustration, For he takes from the discussion of manslaughter following: “although the intent to kill exists, it is not that deliberate and malicious intent which is an essential élement in the crime of murder.” He follows that quotation comment that “as deliberate intent is not manslaughter, or is in attempt perpetrate felony committed some arson, rape, robbery, other than burglary, mayhem, or or circum killing stances of heart, show abandoned this is murder of the degree, unless, mind of second as has proves been stated the evidence the existence slayer (willful, in intent to take first premeditated deliberate and life), which case the offense would be murder in the (People degree. Doyeall, 85, 96; v. Wolff, 48 Cal. Ex Parte 57 id. 94; People Thomas, 25 7].) v. Cal.2d 880 [156 Voluntary manslaughter killing being is the unlawful of a human malice—upon quarrel passion. (Pen. without Code, sudden or heat 192.) § Manslaughter principally distinguishable is from murder in this: though likely That the act which occasions the death unlawful be or yet bodily mischief, malice, to implied, and the act express be attended with either veiy murder, presumed which is the wanting, essence to be being imputed infirmity nature, of human correction (Com. Webster, proportionately ordained it is lenient. Cush. 711].)" Am.Dec. blow, though unlawful, And when the mortal is struck heat passion, quarrel, excited and of amount sudden sufficient violence to *19 adequate provocation, law, to the out of for forbearance the weakness nature, disregard intent, of human will actual the the and will reduce manslaughter. exists, case, although In offense to such the intent to kill it is not that deliberate and malicious which is an intent essential element ' (People Freel, 437.) in 436, the crime of murder. v. 48 Cal. you, say jury, of to or not The law this state leaves it to the whether you in to the facts and circumstances evidence are sufficient to lead your did, that defendant or a in believe the to create reasonable doubt did, or minds as to whether not he commit his offense under a heat passion. passion heat You are admonished and advised that this
692 murder, in the crime of the instruction is errone-
an essential
practice
approved.
excerpt
is not
ous.” Such
to be
direct
to understand
part
of the court’s effort to
the
charitably
regards
the
the weakness of human nature
law
manslaughter only
the accused of
if the intent
and to convict
exist was not malicious and deliberate.
found to
prejudicial
part
the in
Appellant specifies as
manslaughter
murder and
as follows: ‘‘In deter
struction
the
mining the intention of defendant at the time of
transac
of,
complained
important
it is
to consider the means used
tion
killing.
accomplish the
The intent or intention is manifest
to
by
offense,
circumstances connected with the
and the
the
sound
hearing
mind
discretion of the accused.”
the
and
On
first
this court reached the conclusion that
it should
of this case
language
guided by
Supreme
People
the
of the
in
be
Court
v.
Peterson,
;
ap
P.2d
where the
Cal.2d
[173
11]
naturally
passion as would
an
be such a
be aroused
the mind of
must
ordinarily reasonable-person
given
circumstances,
under the
facts and
and
may
up
that, consequently, no defendant
set
his own standard of conduct
aroused,
justify
passions
himself
in fact
or excuse
because
were
and
you,
jury, further believe that
the facts and circumstances
unless
the
passions
ordinarily
person.
the
sufficient to arouse
the
reasonable
were
extremely
Thus,
passion may
justify or
person of
violent
so
excuse
no
to
the circumstances were such as
arouse
fears of
himself unless
the
ordinarily courageous person.
further,
Still
of the
while
conduct
ordinarily
person
is to be measured
reasonable
defendant
circumstances,
exciting
must
placed in
cause
be such
identical
naturally
ordinarily
passion
of the
reasonable
would
tend
arouse
person.
you,
court,
from the
the law
it to
these admonitions
leaves
Under
passion
For
funda
jury, as to the nature of the
itself.
inquiry
was,
or
the defendant’s reason
at the
mental
is whether
passion—not
act,
obscured
neces
of his
so disturbed or
some
time
never,
render
revenge—to
sarily
extent as would
course,
passion
fear
ordinary person
average disposition
liable
rashly
reflection,
from this
due
act
and without
deliberation
(People
Valentine,
judgment.
passion
than from
v.
Cal.2d
rather
1].)
121, 139
[169
adequate
provocation
is not
of the
reduce
The existence
may
raise a reasonable doubt that
class of the offense
defendant
nevertheless
upon,
out
de-
kill
and carried it
after
formed the intent to
malicious intention
premeditation.
is sufficient that the
liberation and
It
precedes
accompanies
of homicide.
the act
determining
at the time
the intention of the defendant
important
used
of,
to consider the means
complained
transaction
it is
killing.
intention manifested
accomplish
The intent or
offense,
sound mind and dis
and the
circumstances connected
neither
persons
All
of sound mind who are
are
cretion
the accused.
21.)
(Pen.
insanity.
Code,
idiots,
lunatics,
§
nor
nor affected with
deadly weapon
provocation,
without excuse
The willful use of
life,
intent.
imperil
generally
a felonious
indicates
such manner as
Webster,
Am.Dec.
(2
Law,
680-1;
The appears in lack of merit the criticism of the instruction general salutary provisions also from the numerous charge. entirety in The instructions their disclose once jury governed solely that the are to intro be the evidence judges . . you duced in trial . are this the sole exclusive weight your evidence and is function to determine questions arising all an infer of fact from ... the evidence you legally proved ence . . . are must be founded fact testimony to judge upon and other evidence facts produced A in action here court ... defendant a criminal contrary be presumed proved, is until innocent is satisfactorily guilt is case of a reasonable doubt whether his shown, acquittal . presumption entitled . The he is to an . every stage every innocence attaches to of the case and to fact essential to a conviction remains the defendant contrary throughout the trial last and until jury doubt . . . beyond a reasonable by proof established the effect and valúe judges of and exclusive are the sole to exercise You are free them ... addressed evidence credibility a judgment as to the conscientious your own deny explain evi defendant’s failure . . . The witness presumption him not create against does presented dence are sole' . the guilt . . inference of or .warrant ' facts.” judges of the passage have Prejudice is asserted to resulted ‘1 and it is *21 evidence to wit: on circumstantial in the instruction upon a conviction that to warrant rule and law the invariable alone, facts and circumstances evidence circumstantial guilt party the of the are consistent with be must shown any other rational con must be inconsistent with charged but 680 The Heuss, Cal.App. P. Peo. v. 95 583].” clusion. [273 instruction is correct. the Heuss ease similar instruction In equivalent the the because it did not contain was criticized hearing denying petition In the for a of’ italicized words. criticized in Supreme Court observed that the case the including approved and “fell in not the well short struction that the evidence frequently of the law announced statement guilt only but incon consistent with adduced must not be guilty.”' justify a verdict of with innocence order to sistent in the instant case is a substantial The instruction attacked thus announced. compliance with the doctrine argument his asserted error of the Appellant in his may be quoted contends that “a conviction not instruction alone unless each circum- upon circumstantial evidence based circumstances ... is inconsistent with stance in the chain of Koenig, P.2d 923 is not au- People v. 164 his innocence.” namely: (1) thority reasons, for three A for such contention by having granted the deci- hearing Supreme the Court guiding force; (2) appellate the court lost its the sion of (29 1]) opinion Supreme Court Cal.2d 87 P.2d of the [173 as to circumstantial evi- repeated the well established rules quoted by approve language appellant; did the dence but (3) judgment entirely upon not rest circum- herein does stantial evidence.
Appellant the nature contends that “from of the evidence sufficiency, is obvious that if error was its doubtful it materially by court which affected the committed the trial defendant, may re- rights, have substantial justice, such error be consid- miscarriage must in a sulted
"695 prejudicial grounds thereupon ered He reversal.” suggesting only asserts “the even a killer of evidence Farmer deceased, is revised version of the narrative.” jury testimony, searching cross- The Paul Farmer’s heard identify explanation and his of his failure to examination effect Having been believed and in at first trial. jury trial, for his dereliction exonerated first sovereign testimony sanctity to this court with of the comes agent determining credibility whose was in given testimony. weight their witnesses and to be correctly (People v. The instruction defined deliberation Thomas, 898, People Ben 880, 7]; 25 Cal.2d 901 P.2d v. [156 der, 28 164, People Bernard, ; 27 Cal.2d 181 P.2d v. 8] [163 207, 636]); Cal.2d properly P.2d omitted mention [169 Code, section Penal since it was not indicated Lindley, (People evidence 227]); v. Cal.2d 780 P.2d [161 it correctly manslaughter (Pen. defined Code, People 192; v. § Valentine, 28 1]), Cal.2d dis P.2d [169 tinction degrees between the of murder followed most recent Supreme (People Holt, utterances of the Court. Cal.2d 59, 21].) Degbee op Mtjbdeb Was Detebmined argument an elaborate that the contends
degree of murder committed was not despite found the jury, *22 the language of the verdict that “We further find it to be murder of degree, the first and recommend However, ...” he premises argument upon passage one from the instruc tion on'murder and manslaughter, to “All wit: which murder is willfully, deliberately committed premeditatedly is murder degree. first All other kinds of murder are of ’’ degree. the second quotation analysis He follows that with an of section 189 of Penal Code to show that murder degree first has 13 “willful, characteristics besides that of de premeditated liberate killing,” argu and concludes his unique ment proposition with the that when the said court “all other kinds of are degree” murder of the second it in thereby tended jury classify to direct the all of the “thirteen distinct degree eases as second murder.” argument Such disregards logic. committing The first three means first degree specified murder in section necessarily require willfulness, premeditation. deliberation and Since none of alleged those or indicated means evidence jury’s consideration evidently confine the aim was court’s per manner of any means used or degree in first murder willful, premeditated, deliberate formance that was degree. murder of the second it committed it was if was not so com by which murder is By omitting the list means foul crimes in the commission mitted or the list of the several .change murder the court did not becomes which homicide did inform the fixed law.” The instruction “the standard degrees of murder.” jury of each of the “as to elements (People by appellant cited Nothing found in the authorities Holt, 25 People Thomas, ; P.2d v. 25 Cal.2d 7] in derogatory the criticized 21]) Cal.2d 59 [153 struction. on Rehabilitation
Instruction assigns prejudicial the instruction on “rehabil- Appellant ’’ quoting preceded the events that it will be it itation. Before Mrs. Paul the murder of Struck occurred first narrated. When grand jury 15. When called before the Farmer was a lad of evening 5, 1943, April that on November, in he testified front of her back window but saw deceased in he saw present; the man who was only gray arm sleeve of appellant. was not that of latter’s voice and it heard the at the first trial that it was not January, he testified extrajudicial that time he made Weatherford, and at about import. April, 1946, the trial in of the same At declarations respect given testimony material from that varied one testimony at A of his the second trial has in 1944. résumé He testified that already recited above. reason testify grand first trial or before the he did admit at the jury the storeroom Mrs. that it Struck might the defendant harm a member of his was his fear that family. the rehabiltation instruction it was As reason for subsequent fall of 1944 and at other developed that in the including persons Mrs. Merle times the witness told several recognized appellant at the scene of the murder. Miller that he ‘‘ instruction is as follows: Rehabilitation. The The criticized upon further cross examina- court instructs questions were asked of Paul Farmer certain tion had fabricated his tes- might be inferred that Paul Farmer timony trial, that Paul Farmer had base or ulterior at tHis *23 testimony in court at this trial was a motives, his or that attempts Following such inferences or by recent fabrication.
697 impeach Farmer, counsel for Paul defense certain testimony given by was Mrs. Merle Miller on behalf prosecution of made statements Paul Farmer to her in July November 1944 and of in June or 1945. you
“The at in admitting court instructs this time that testimony Mrs. Merle Miller of what Paul Farmer told her on occasions, testimony these not received for the purpose proving the truth of the facts which had Farmer, told solely to her Paul but and for the limited purpose refuting suggestions inferences, any, or if Paul Farmer had at testimony this trial fabricated his testimony his was actuated base or ulterior Mrs. motives. Merle testimony Miller’s what Paul Farmer said to her on these is occasions introduced received evidence to into prove the state mind of Paul Farmer prior on date this trial, purpose for the determining whether his mind state of at that time was the prove same as disclosed at this trial and to testimony that his at trial this is not fabrication. It admitted purpose rehabilitating limited Paul Farm testimony er’s (People Nobles, Cal.App.2d this trial.” v. 44 422 ; People Kynette, v. 15 Cal.2d [112 731 651] [104 Am.St.Rep. Barkly P.2d 794]; Copeland, 307, v. 74 Cal. P. [15 ; People Doy ell, Shaw, 90; People v. Cal. v. 3] 41 Cal.App. P. 401].)
The authorities cited the instruction its cor establish jury might rectness. appears Where that the cross-examination of a witness draw testi inferences mony given fabrication, prior on the trial of recent extra is judicial with recent statements of the witness consistent testimony prior will be admitted to rehabilitate it. After such placed they have been before are to de statements termine whether the witness under attack fabricated his testimony (People Nobles, given supra.) before them. complies instruction not law and therefore erroneous. Explain
Failure Instruction that defendant’s failure to The court’s incriminating deny explain suspicious circumstances or to oppor testimony against him, having presented reasonable tunity Constitution, so, was in conformance with to do “That evidence to be estimated statutes and decisions. weight, according also only by its own intrinsic but *24 produce side to and power it is in the of one evidence I, (Const., 13; art. Civ. contradict; ...” Code the other to § Adamson, 478, 488 People v. 27 Cal.2d Proc., 2061, (6); § 3].) P.2d [165 Instbuction's
Refused by circumstantial evidence offered The five instructions on unnecessary. instruc- appellant and refused were The court’s rejected quoted Those were tion heretofore was sufficient. that the circum- arguments upon the court’s instruction mere guilt arid inconsistent be consistent with stances “must is “intel- instruction any rational conclusion.” Such other in accordance with that and was ligible free from doubt” 544, 550 Navarro, Cal.App.2d People v. approved in [168 eight number was instruction 265], The refused P.2d Refused question of fact. decide a attempt have the court disre- directing jury to equivalent instruction five attorney opening in his the district gard the statements subject was The same crimes. proof of other as to statement to consider Instruction fully court’s “General covered only.” evidence newa denying the motion for the order judgment and are affirmed. trial presiding opinion in the WILSON, J. concur I be affirmance. It would join judgment
justice, in the in the participation say appellant denied inaccurate to solely a bare denial that in consisted evidence crime. His participation he denied blow, never but the lethal struck an composed of his testimony is entire His in the murder. “ you Q. ever Did from his counsel: single question swer to A. as M. Mary A. or known name by the strike a woman objections all sustained No, A. The court sir.” Struck? attorney on cross-examination. by the district questions asked technically Inso true. might have possibly The answer may have murder is concerned evidence appellant’s far as instigation in person by another at been committed presence. majority my judgment McCOMB, J. dissent. I holding prejudicial not erroneous opinion is follows: the trial court instruct error for time defendant at the determining intention of the “In important of, it to consider complained is of the transaction accomplish killing. The intent the means used or in- tention manifested the circumstances connected with offense, and the sound mind discretion of accused. are persons idiots, All mind who are neither nor sound insanity. lunatics, nor affected with deadly weapon
“The willful use of a without excuse provocation, life, generally imperil in such a manner as to ’’ indicates felonious intent. language Supreme
This identical condemned Peterson, People seq. Court Cal.2d et 11], court, Schauer, speaking through Mr. Justice page 78, . saying “. . . . . the instruction should given this, in a be case such as where a defendant does not *25 the participation concede in transaction.” The erroneous judgment instruction did not a reversal cause of the in the the Peterson case for as reason stated the court that the miscarriage ease was not justice “a close one and no of is ’’ as a giving shown of result the of the instruction. specifically In the instant case participa- defendant denied the in crime, my judgment tion in and in- erroneous prejudicial was in struction view of the fact that the evidence entirely was only circumstantial and the identifying evidence participant defendant as a given in the crime was the wit- Farmer, perjurer. ness an admitted
That this unavoidable, is, conclusion is that that the case was a close the coneededly one and that erroneous instruction prejudicial, supported by following is the facts: It is
First: conceded that all of the evidence is circum- exception stantial with the testimony the of the witness perjurer, Farmer a the self-confessed who at time he testi- probation fied on after a offense, conviction of criminal grand and who had before testified the in November, in looking April 5, that out on window 1943 into only Johnnie part Oh Cafe he seen a of an arm of a that man and the man’s voice he had heard was not that of gave defendant. testimony prior He similar at a trial of the January, case in present Likewise, 1944. on 15, December Hyde 1943, he stated to Mr. Mr. Mason that defendant not the man voice evening whose he had heard April 5, Again March, 1943. in in made statement Mrs. Elsie Weatherford. similar People Weatherford,
In the ease of v. 27 Cal.2d P. [164 753], Supreme substantially 2d our held on evidence Court majority opinion, in the with the ex
same as that forth set Parmer, testimony perjurer that such ception of the? applicable the to make did not sufficient evidence constitute rela VI, of the provisions article section Constitution 4½ given. instruction which had been tive to an erroneous only material addition It be borne in mind that should in appearing case over that evidence in the instant People Weatherford, 753], v. 27 Cal.2d testimony witness Parmer. of the justices court, men trained in evaluat- : The of this
Second therefrom, have ing conclusions be drawn evidence present reached from the to be differed as to conclusions lay jury untutored It is therefore self-evident record. sufficiency evi- extreme doubt as to must have had conviction, clearly should this court dence to sustain in where say concededly instruction a case erroneous not circumstantial, entirely and the defendant the evidence is prejudicial in the crime is participation denied “miscarriage defendant, and that rights of the substantial instruction. erroneous justice” not result from the did illus- length majority opinion of the Third: The extreme guilt in the evidence of trates the extreme tenuousness present case. many “miscarriage phrase cases It has been held ’’ VI, of the Constitution
justice in article section as used 4% escaped, man guilty has simply that a does not mean equally applicable It is an innocent man has convicted. Weatherford, People Carter by Mr. Justice pointed out resulted has supra, 420, to where the conviction cases *26 right of the defendant an essential form of some trial disregarded denied. has been court opinion* former this I therefore adhere trial a new reversed and judgment should be believe that the granted. hearing by Supreme Court for a
Appellant’s petition Sehauer, J., voted Carter, J., and April 17, 1947. denied hearing. for a reversing the all of this court members opinion concurred *The appears January trial, granting a new filed judgment
in 77 A.C.A. 708 382].