People v. Wolff

—Upon a charge by information the defendant was convicted of the crime of murder of the first degree and thereupon sentence of death was imposed upon him. The appeal is from the judgment of conviction.

In support of his appeal he urges seven grounds. We will consider them in the order in which they are presented.

1. At the time the defendant was brought before the magistrate for the preliminary examination upon the charge it was suggested in his behalf that he was under the age of eighteen years at the time the crime was alleged to have been committed. The magistrate examinéd into the matter and determined that he was less than sixteen years of age at that time. Thereupon he suspended the proceedings and ordered the constable to take the defendant before the juvenile court of the county for its consideration under the juvenile court law. In the superior court, by direction of the court a petition was filed by the probation officer to bring the defendant within the terms of the probation law. (Section 3.) Thereupon the court took evidence relating to the character of the defendant and the nature of the

.The claim is now made that under the provisions of the juvenile court law, after the magistrate had determined that the defendant was less than eighteen years of age, and the matter then came before the superior court for proceedings under that law, the superior court was without power to remand him to the magistrate for further proceedings on the criminal charge. The claim is, in effect, that a person under eighteen years of age cannot be prosecuted or punished for the crime ■ of murder and that he can be dealt with only as a ward of the juvenile court.

We do not think this proposition is sustained by the law. Section 6 provides that when, upon a charge of crime against a person, it shall appear to the magistrate that the defendant was under eighteen years of age at the time the alleged crime was committed, he shall suspend the proceedings upon the charge and inquire into the age of the defendant, and if he finds that the defendant was under eighteen he shall thereupon certify to the juvenile court the fact of such finding and that proceedings have been suspended by reason thereof, and that thereupon all proceedings against the person on the charge shall be suspended until the juvenile court shall issue its mandate directing the magistrate to proceed with the examination or trial. It then provides that in the superior court, acting as a juvenile court, a petition shall be filed to bring the defendant within the provisions of the law and “that if said judge of the juvenile court shall after such investigation decide that the person was at the time said offense was alleged to have been committed of the' age of eighteen years or more, such determination shall be con-

2. In certifying the cause to the juvenile court after finding that the defendant was under eighteen years of age, the magistrate, it is claimed, failed to attach to the certificate a certified copy of the original deposition or complaint filed before him. Section 6 of the Juvenile Court Act provides that he shall do this. It is contended that this omission deprived the court of jurisdiction. [2] We do not think the requirement was intended to be jurisdictional. The clause requiring such copy to be attached is ovbiously merely directory in character and effect, the object being to apprise the juvenile court of the nature of the charge. [3] Furthermore, the objection is not properly in the record before us. The defendant should have made it a part of the record, either by a bill of exceptions or by some special order of the court. Section 1246 of the Penal Code enumerates minutely the papers which shall constitute the transcript on appeal. The certificate of the magistrate and proceedings remanding the defendant to the juvenile court

3. The defendant claims prejudicial error in rulings of the court overruling his challenges for cause to two of the jurors. The challenges were made on the ground of actual bias as defined in subdivision 2 of section 1073 of the Penal Code. Section 1076 provides that under such a challenge a person shall not be disqualified as a juror by reason of having formed or expressed an opinion upon the guilt or innocence of the defendant founded upon public rumor, statements in public journals, or common notoriety, if- it appear to the court, upon his examination that he can and will, notwithstanding such opinion, act impartially and fairly upon the matter. Juror Heimforth, upon his examination, testified that he had read the newspaper accounts of the crime and had therefrom formed an opinion as to the guilt or innocence of the defendant, which it would take evidence to remove. Upon further examination, however, he stated that his opinion was formed entirely upon what he had read in the newspapers, that he had no other knowledge or information about the matter and that, notwithstanding that opinion, he could, and would, if sworn as a juror, lay it aside, consider the case entirely upon the evidence produced in court and act impartially and fairly in the case. Juror Blaisdell testified that he knew nothing of the case except what he had read in the newspapers, that he had formed an opinion therefrom which the evidence might

4. During the examination of the jurors the district attorney put the following question:

“Well, supposing the court should further instruct you that if you find from the evidence that the killing was done and that it was done by the defendant in an attempt to perpetrate or in the perpetration and commission of the felonies that I have mentioned, one of which was robbery, that you would have no option in the matter, but that you should find the defendant guilty of murder in the first degree .would you follow that instruction? A. Yes, sir.” Questions of somewhat similar purport were put to eleven other jurors who were examined.

Defendant claims that these questions were unfair because they did not advise the jury that the guilt must be shown to a moral certainty and beyond all reasonable doubt, and that the many repetitions of similar questions would leave the impression with the jury that the court would instruct them that the killing was done by the defendant in the

5. The defendant was charged with the murder of one Elmer Greer. The evidence showed that Greer was operating an automobile for hire; that on May 26, 1919, the defendant hired Breer and his automobile for a trip, and that while on the trip the defendant stealthily hit Greer on the head three times with a hammer. Each blow made a round indentation in the skull, forcing the bone into the tissue of the interior of the skull. From these wounds Greer died on May 29, 1919. On the trial one Delbert E. Bellus, on behalf of the prosecution, testified on direct examination that on May 26, 1919, he helped Greer aboard a train running from Maricopa to Bakersfield, that Greer then had wounds on the head, that he bathed Greer’s head and face several times during the journey to Bakersfield and there left him at the station.' On cross-examination the witness was asked

[7] The defendant claims that this was error and that it was very prejudicial to his case. In view of the testimony on the cross-examination, it cannot be said that it was not within the scope of a fair redirect examination. But the statement of the witness on the cross-examination as to what Greer said was not technically responsive to the question, but was a voluntary statement. This point was not embraced in the objection. The evidence was obviously hearsay and incompetent, however, and the redirect examination

[8] 6. The court admitted in evidence two locks of matted hair adhering to something which appeared to be parts of a human scalp, together with testimony that they were found in Greer’s automobile at Livingston station near Merced, where defendant had abandoned it, and had boarded the train for Oakland, the morning after the homicide. ■Testimony was given to the effect that this hair was of the same color as the hair of Greer. The witness Corbett testified that he found the hair in the automobile soon after the defendant abandoned it, and that he gave the hair to Officer Pyles. Pyles produced the hair and testified that Corbett had given it to him, that he had known Greer for a number of years and that this hair was the same color as that of Greer.. The locks of hair were then offered in evidence and admitted over the defendant’s objection that “no proper foundation had been laid.” It is now claimed that it was error to admit this evidence without further evidence showing that its condition was the same at the time of its admission as it was when it was taken from the automobile, and that it was introduced in order to arouse the passion and prejudice of the jury. The defendant made no attempt to show that the hair was in a different condition at the time, of its introduction in evidence from its condition at the time it was found, and it is not claimed that its natural color had been changed. There is no presumption that these articles had been changed in any way for any purpose, and

7. The court gave the following instruction:

“You are here, gentlemen, for the purpose of trying the issues of fact that are presented by the allegations in the information filed by the district attorney and the defendant’s plea thereto. This duty you should perform uninfluenced by pity for the defendant, or by passion or prejudice on account of the nature of the charge against him. You are to be governed therefore solely by the evidence introduced in this trial and the law as given by the court. The law will not permit jurors to be governed by mere sentiment, conjectures, sympathy, passion or prejudice. A verdict founded upon sentiments of pity for the accused, or upon public opinion or public feeling, or upon passion or prejudice, or upon conjectures, would be a false verdict. You will not take counsel of them in deliberating upon your verdict. The importance of your duties requires that you consider the right of the people of the state of California to have the laws properly executed, and that it is with you, citizens selected from the county, that finally rests the duty of determining the guilt or innocence of those accused of crime, and unless you do your duty, laws may as well be stricken from statute books.”

The defendant argues that the last sentence of the instruction, in effect, directed the jury that they should find the defendant guilty, and if they did not do so they would have neglected their duty. As a part of the same instruction and immediately following the above extract the court said: “You should also ever keep in mind the importance to the accused of the result of your deliberations and be just to him, as well as to the people of the state of California. Both the public and the defendant have a right to demand, and they do so demand, and expect, that you will carefully and dispassionately weigh and consider the evidence and the law of the case and give each your conscientious judgment; and that you will reach a verdict that will be just to both sides, regardess of what the consequences may be.” The instructions, and particularly a single instruction, must be considered as a whole. [9] We cannot perceive wherein the court in this instruction in any respect misdirected the

The defendant does not claim that the evidence is not sufficient to support the verdict, and it is therefore unnecessary to consider the same. We have examined it, however, and find that it clearly establishes his guilt of a cold-blooded, mercenary, deliberate and willful murder.

The judgment is affirmed.

Wilbur, J., Lawlor, 3"., Lennon, J., Olney, J., and Angellotti, C. J., concurred.