People v. Siemsen

John Siemsen and Louis Dabner were, by information filed in the superior court of the city and county of San Francisco, charged with the murder of M. Munekata. Upon a separate trial, Siemsen was found guilty of murder of the first degree, and he appeals from the judgment of death pronounced pursuant to the verdict, and from an order denying his motion for a new trial.

1. Upon being arraigned the defendant moved to set aside the information. His motion was denied, and this ruling is now assigned as error. The ground of motion was that before the filing of the information the defendant had not been legally committed by a magistrate, or more specifically stated, that the information was filed “before any commitment, deposition, or other record showing that said defendant had a preliminary examination, had been returned or filed, and that no order of commitment was indorsed upon an alleged paper purporting to be a complaint. ’ ’ Section 809s of the Penal Code provides for the filing of an information within thirty days after a defendant “has been examined and committed, as provided in section 872 of this Code.” Section 872 directs that “if, however, it appears from the examination that a public offense has been committed, and there is sufficient cause to believe the defendant guilty thereof, the magistrate must make or indorse on the complaint an order signed by him,” holding the accused to answer the charge. It seems to be settled by the decisions of this court that the making of such order, signed by the magistrate, is a prerequisite to the valid filing of an information. (Ex parte Brannigan, 19 Cal. 133 ; People v. Wilson, 93 Cal. 377 , [ 28 Pac. 1061 ].) In so far as the section “provides that the order shall be indorsed upon the deposition, the statute may be regarded as directory; but it is essential that it should be reduced to writing, and entered either upon the official docket of the magistrate or upon the complaint or depositions.” (People

It appears that the information was filed on the third day of December, 1906. The complaint which formed the basis of the preliminary examination was produced at the hearing of the motion to set aside the information. Indorsed upon this complaint was a written order, signed by the magistrate, holding the defendants to answer. This order was, on its face, in full compliance with section 872, and bore date of the first day of December, 1906, two days prior to the filing of the information.. To overthrow the apparent regularity of the proceedings, the defendant called as a witness his counsel, J. J. Greeley, who testified that the information had been filed in the superior court at about five minutes before ten o’clock, on the morning of December third, and that at that time the “commitment,” or order holding the defendant to answer, had not been signed; that he had seen the complaint in the police court at about 10:30 o’clock on the same morning, and that the signature of the magistrate had not thefi been affixed to it. B. P. Shortall, a police judge, who had presided over the preliminary examination, testified that he had no independent recollection of the time when he signed the order, but thought he had signed it on the afternoon of December first. “The only thing that calls it to my memory is the date on it.” Whether the order holding defendant to answer was signed before or after the filing of the information was a question of fact to be determined by the trial court, and, if there was a substantial conflict of evidence on the point, the conclusion of that court must stand here. We think there was such a conflict. It is true that the testimony of Mr. Greeley was positive, while Judge Shortall expressed only a belief that he had signed the paper on December first, and based this belief on the fact that it bore that date. But the court, in determining whether or not to accept Mr. Greeley’s testimony, had a right to consider the presumptions raised by law. One of these is that “official duty has been regularly performed”; another, that “a writing is truly dated.” (Code Civ. Proc., sec. 1963, subds. 15, 23.) These presumptions, while disputable, are in themselves evidence (Code Civ. Proc., sec. 2061, subd. 2 ; People v. Milner, 122 Cal. 171 , [ 54 Pac. 833 ] ; Sarraille v. Calmon, 142 Cal. 651 , [ 76 Pac. 497 ] ; Adams v. Hop

2. The prosecution offered evidence tending to show the following state of facts: M. Munekata was the manager and A. Sasaki the cashier of the Kimmon Ginko Bank, located at 1588 O’Farrell Street, in the city of San Francisco. The banking premises contained a private room, separated from the main business office of the bank by a partition of wood and glass. On October 2, 1906, Siemsen entered the bank, made some inquiries of the cashier in the main office, and visited the manager Munekata in the private office. At a few minutes before noon on the third of October, all of the employees and officers of the bank, with the exception of Munekata and Sasaki, went out for lunch, leaving Munekata in the private office, and Sasaki in the business office. About two thousand dollars in gold and several hundred dollars in silver were piled in boxes on a table beside the bank counter. At about half-past twelve one of the clerks returned and found Munekata and Sasaki unconscious and covered with blood. All of the money, with the exception of a few cents, had disappeared. On the floor was a piece of gas-pipe wrapped in paper. Siemsen and Dabner had been seen coming out of the bank at about five or ten minutes past twelve o’clock. The injured men were removed to the emergency hospital, where Munekata died within two hours. He had sustained an extensive fracture of the skull, which, with the resultant hemorrhage of the brain, was the cause of his death. Sasaki’s skull was also fractured, but he finally recovered, and was a witness at the trial. The injuries were such as might have been caused by the piece of pipe found on the floor; they could not have been self-inflicted.

Siemsen was arrested on November 3 and taken to the O ’Farrell Street police-station where his name was placed on

On the day of the alleged confession Police Captain Duke sent for Siemsen. The chief of police and a detective were present. Captain Duke said “Siemsen, I suppose you have heard the boys outside calling out, extra papers, all about the confession of Dabner,” and he said “Yes, I have heard it.” Prior to that time Siemsen had refused to make any statement unless he received a promise that he would not be hanged and the police officers had refused to make any promise whatever. The alleged confession of Dabner had been reduced to writing and Duke read it to Siemsen. Siemsen stated that parts of it were not true, and on being asked what parts were not correct, specified an entirely unimportant detail. Duke then brought the co-defendant Dabner and his father into the room and re-read the confession in the presence of both defendants. Siemsen stated that he preferred to consult a lawyer before making any statement. The police officers made no reply to this and did not send for an attorney. Duke turned to Dabner and said: “Dabner, is this true?” and Dabner said “Yes, it is true,” and looking at Siemsen, he said “Jack, you know it is true.” Siemsen hesitated for a few seconds and finally said, “Well, that is the goods, that is true,” or words to that effect and shook hands with the chief of police and with Duke, and, thereupon, at Duke’s suggestion, signed his name “John Siemsen” to the statement under the words, “This statement is correct throughout,” which Duke had first written. Captain Duke testified that he did not

The objection to the admission of this confession, and of the statements of Siemsen regarding it, was put upon the ground that the prosecution had failed to establish that the confession was free and voluntary on Siemsen’s part, and that, on the contrary, the preliminary proof showed that it was made under duress. The objection was overruled and appellant excepted.

The testimony above recited shows, on the part of the officers, no express utterance amounting to either a threat or

3. After the introduction in evidence of Dabner’s confession, assented to by Siemsen, the People offered the testimony of several witnesses to the effect that shortly after the alleged robbery and murder, Siemsen and Dabner had purchased various articles of jewelry and clothing, and had paid cash for the same. The sums so shown to have been expended amounted to more than one thousand dollars. In several instances this testimony was objected to on the ground that it had not been shown that the defendant was, prior to the alleged robbery, without means to make these purchases. That the sudden possession of money, immediately after the commission of a larceny, by one who had before that been impecunious, is admissible as a circumstance in the case (People v. Kelley, 132 Cal. 430 , [ 64 Pac. 563 ]), is not disputed. Nor is it 'questioned that the same rule is applicable here, where, although the charge does not embrace larceny, the proof tends to show that, in the course of committing the crime under investigation, money was taken by the person or persons guilty of the main crime charged. It is urged, however, that before evidence of the possession of money by the defendant can be admitted, a foundation must be laid by showing that such defendant was impecunious before the commission of the alleged crime. It may be questioned whether this objection goes to the admissibility, or merely to the weight, of the evidence. This need not be decided here, however, since the evidence was clearly admissible upon another ground. All of the items of expenditure proven over defendant’s objection corresponded, more or less closely, with the amounts which, according to the confession, had been paid by the defendants out of money taken by them from the bank. The evidence in question was relevant and proper for the purpose of corroborating the confession in this particular.

No other point is made, and we see no reason for disturbing the verdict.

The judgment and order appealed from are affirmed.

Shaw, J., Angellotti, J., Lorigan, J., Henshaw, J., and Beatty, C. J., concurred.