People v. Erno

Ronald Charles Brno and William A. Hard were charged with the murder of Fred Skeen at the home of the decedent’s mother, in Siskiyou County. A motion for separate trials was denied. The jury returned a verdict of murder in the first degree, and made no recommendation. The trial court thereupon sentenced both defendants to pay the extreme penalty. As the defendant Hard was under the

In the latter part of September, 1923, Hard and Brno, with another young man by the name of Lowe, left Los Angeles in an automobile for the northern part of the state on a trapping expedition. They were joined by a man named Taylor, an experienced trapper, who suggested that Siskiyou County was a likely place for such a venture. The four then went to the Skeen ranch, where, for a time, they remained in a cabin about half a mile from the ranch-house. Taylor abandoned the venture, and Lowe, becoming dissatisfied, went to Los Angeles. Brno was employed by the Skeens as a utility man, receiving, in addition to his wages, board and lodging at the ranch-house. Defendant Hard worked part of the time in the neighborhood, sometimes assisted by Brno.

The story of the murder was told by the defendants themselves, and there is a conflict as to what occurred, each of the defendants doing his utmost to fasten the actual killing of Skeen upon the other. The crime was committed one night when there was no one at the ranch-house other than the decedent and the defendants Brno and Hard. Young Skeen was found lying in his bed dead, with a bullet hole through his head. A Studebaker automobile belonging to Mrs. Skeen was missing, and so were a number of the guns belonging to the Skeens and various articles of wearing apparel of the decedent. Hard and Brno were arrested in Los Angeles, in possession of the automobile, some of the wearing apparel of the murdered boy, and his automatic pistol. The guns had been disposed of on the way by the defendants for money, gasoline, and other supplies. After the defendants were arrested each of them made a number of statements concerning the commission of the crime. They talked to the officers in the county jail in Los Angeles, to whom Hard at first denied knowing Skeen, and said they bought the automobile in Oregon for $350. On the way from that city to Yreka each of the defendants made a statement to the sheriff of Siskiyou County. After 'they arrived at Yreka they made various statements to different people. According to the story told by Hard it was Brno who shot Skeen while Hard was outside the ranch-house. Brno then forced Hard to flee

When the defendants were arraigned, Hard demanded that he be granted a separate' trial. The request was denied, and that is the first point made by him on this appeal. The motion for a severance was supported by an affidavit of the attorney for Hard to the effect that the defendants each maintained that the alleged crime was committed by the other, and their interests were therefore in direct conflict. The affidavit contained no statement of facts or forecast of the evidence to be introduced on the trial. In opposition to the motion, the district attorney filed an affidavit which set forth the substance of the facts we have related, except as to the accusatory statements which had been made by the defendants, and that the prosecution intended to proceed upon the theory that the crime was committed by the defendants in the execution of a joint purpose. [1] When two or more defendants are jointly charged with a public offense .they must be tried jointly, unless the court order separate trials. (Pen. Code, sec. 1098.) The trial court did not commit error in denying the motion for a severance-. (People v. Bringhurst, 192 Cal. 748 , 753 [ 221 Pac. 897 ].) It was not bound to order separate trials upon the mere request of a defendant. (People v. Anderson, 59 Cal. App. 408 ,

Appellant argues that, in view of the manner in which the various confessions of the two defendants were taken, and in the light of the way in which the testimony went into the record in the trial court, it was impossible for him to safeguard his interest in any way, and that it was “humanly impossible” for any jury to keep in mind the relationship of the two defendants, and the portions of the testimony that may or may not have been relevant to the case of either. Por these reasons, he contends that his case was prejudicially affected, and that the denial of separate trials resulted in a gross abuse of discretion. [2] Assuming that we may review the question whether or not the court abused its discretion in denying the demand for separate trials, that can only be done upon the basis of the showing made when the demand was presented, not upon what transpired afterward. While, from the record of the trial, it does appear that there were many conflicts in the testimony and many instances where the trial court was required to limit the evidence in its application to one or the other of the defendants, that is commonly the situation which arises when two or more defendants are jointly tried, and in the present case the rights of each of the appellants were carefully preserved.

Appellant Hard entirely sets aside the direct evidence of the defendant Brno, and contends that there is no testimony that it was he who killed Skeen, and no evidence other than

[6] Premeditation, or malice aforethought, is a necessary ingredient to the crime of murder. It is argued on behalf of appellant Hard that no premeditation on his part has

[7] It is next contended by the appellant Hard that the trial court erred in refusing to admit testimony material to his defense. Neither Hard nor Elmo was called as-a witness for the prosecution. Bach took the stand in his own behalf, Erno testifying first. As part of the case for Hard, he sought to show by his own testimony and by that of other witnesses that prior to the trial defendant Brno had made statements tending to incriminate himself and exculpate Hard. The prosecution did not object, but, on objection of counsel for Brno, the court rejected the testimony. Appellant Hard contends that the evidence was competent to discredit Brno’s testimony that it was Hard who did the shooting, and tended to prove that it was he, and not Hard, who committed the crime. This court has held that it is always proper to show that some other person, and not the defendant, committed, the crime with which the latter is charged. (People v. Mitchell, 100 Cal. 328 , 333 [ 34 Pac. 698 ].) But we do not understand the rule to extend further than to mean that such showing should be made in the proper manner, and in accord with the ordinary rules of evidence. No foundation ivas laid for impeaching Brno’s testimony, if that was the theory on which it was sought to introduce the statements. Brno was on the stand before Hard testified, and was cross-examined minutely by Hard’s counsel. According to the admission of Hard’s counsel, in answer to a question put by the trial court, it directly appears that certain of the conversations were not testified to by anyone, and appellant has not pointed out where, at any time, Brno was asked if he had made the purported incriminating statements. We have examined the record in following out appellant’s theory, urged on appeal, that the testimony would have shown that Brno, and not Hard, committed the murder, and are of the opinion that little, if any, of it would have that effect. Of the two instances complained of in which

[8] The last point made by appellant Hard in support of his appeal is that the court erred in instructing the jury on the question of flight. It instructed the jury, in effect, that the flight of a person immediately after the commission of a crime, or after a crime has been committed with which he is charged, is a circumstance to be weighed by the jury as tending in some degree to prove a consciousness of guilt, and is entitled to more or less weight according to the circumstances of the particular ease. It did not include in the instruction any admonition that the defendant must know that the crime has been committed, and that he is accused of having committed it. The instruction given in this case was criticised in People v. Jones, 160 Cal. 358 , 369 [ 117 Pac. 176 ], as being a clear invasion of the jury’s province in

[9] The appellant Brno makes but one assignment of error on this appeal. During the trial of the ease, and at

It is not claimed that the trial court had placed the jury in charge of an officer, and, under our statute (Pen. Code, sec. 1121), the jury are permitted to separate at adjournment and recess until the case is submitted to them for decision, unless the court, in its discretion, orders them to be kept together in charge of an officer during the progress of the trial. (People v. Witt, 170 Cal. 104 , 109 [ 148 Pac. 928 ].) [10] The record, as we have already indicated, discloses that the adjournment, for a period of ten days, was taken with the full consent of all the counsel in the case. The only complaint the substituted counsel for Erno seem to make in the matter is that during the long recess some of the jurors might have been exposed to undue influence against the defendants, created by the press and newspapers published in the vicinity of Treka where the trial was held. If it were a fact that the jury had been improperly influenced from such sources, it was not made to appear. It nowhere appears in the record in what manner, or how, the action of the court, in granting the long continuance, resulted to the detriment of E'rno, or tended to prevent him

[11] We are satisfied, in the case at bar, there was sufficient evidence to warrant the jury, within the rule we have stated, in inferring the existence of a deliberate intent on the part of the defendants to kill young Skeen. The jury has so found, and, by its failure to recommend any other punishment, left it to the court to impose the highest penalty. The finding of the jury was approved by the trial court on motion for a new trial. The findings of the jury and the trial judge are conclusive upon the subject, and upon this court, as we may disturb a finding only when we can say, as a matter of law, that there was no evidence to support it. (People v. Mahatch, supra.) That is not this case.

The judgment of conviction of each defendant and the order denying the motion of each defendant for a new trial are, and each is, affirmed.

Lawlor, J., Shenk, J., Richards, J., Seawell, J., and Myers, C. J., concurred.