People v. Perry

The defendants were jointly accused by the grand jury of the county of Los Angeles with the offense of having, on February 20, 1924, in said county of Los Angeles, murdered Glen E. Bond, a police officer of the city of Los Angeles. They were thereafter jointly tried and convicted of said crime of murder as by the indictment charged, the jury having returned a simple verdict against each defendant of murder of the first degree. The court thereupon pronounced the judgment which the law in such cases prescribes, which is the death penalty. The appeal is from the orders denying the motions for new trials made jointly by Perry and Bailey and separately by defendant Monti jo, and from the judgments of conviction.

The defendants, all of whom are young men with blemished records, and who were known by various false names, preconceived on the day prior to the day on which the murder occurred, and agreed upon a plan by which they were to undertake to rob a branch of the Merchants National Bank, situate on the corner of Seventh and Hoover Streets, in said city of Los Angeles. The hour set by the defendants for the commission of the crime was 12 o’clock, meridian, February 20, 1924. Pursuant to their said agreement and understanding, the defendants entered said bank a few minutes before the appointed hour, armed with loaded revolvers or pistols, with the clear intent and purpose of executing their plan to rob said bank of its moneys and valuable personal property by means of force and fear to be exercised upon the officers and employees of said bank and upon such other persons as should be present in said bank. In accordance with the prearranged plan the defendant Montijo, upon entering the bank, took a position near the front entrance the better to guard the entrance to the bank against such persons as might attempt to enter during the robbery and to exercise surveillance over persons occupying the front portion of the room. Defendants Perry and Bailey, with drawn arms, made their way from the front entrance to the central and to the rear portions of said bank, commanding as they went the officers and employees of said bank and the two or three customers who were transacting business therein, to hold up their hands,

Dr. H. Gordon Bayliss, a physician and surgeon, was called by Oscar Perry to attend his brother, defendant Lewis Perry, for a gunshot wound, at 1 o’clock on the afternoon of the attempted robbery. This was but one hour following the shooting at the bank. The defendant was then at the Olive Inn, 337 Olive Street, suffering from a gunshot-wound. He made no explanation to the physician as to how he came by his wounds. Oscar informed the physician that Lewis had accidentally shot himself. The bullet had passed through the defendant’s body, piercing the right lung in its course. The surface wound upon the chest was larger than the wound in the back, which would indicate that the bullet entered the back and passed out through the chest-wall. The shot was probably fired by Forbes as Perry was retreating from the bank. Defendant Perry, his brother Oscar and perhaps one other of the defendants became suspicious that the physician would report the case to the police -and the defendant Perry was removed from the Olive Inn to Oscar’s home at 2025 E. Fourth Street. At 9 o’clock that evening defendant Lewis Perry was arrested and subsequently taken to the receiving hospital. He informed the officers that he had shot himself accidentally, in some sort of a scuffle. There were no indications of powder bums or other evidence that the shot had been fired at short range. Two loaded revolvers and cartridges

Defendant Bailey was arrested at about 6 o’clock on the afternoon of the robbery. According to his confession, immediately after his flight from the bank he changed his wearing apparel to elude identification. He threw his revolver into Westlake Park in the progress of his flight. Defendant Montijo was arrested at San Diego three days thereafter. Both Montijo and Bailey made complete confessions of their participation in the crime, which, of course, incriminated Lewis Perry. While Oscar Perry did not directly participate in the offense of robbery which resulted fatally to Officer Bond, the confessions of Montijo and Bailey implicated him as the driver of the automobile which conveyed the defendants to the scene of the crime and which disappeared shortly after the defendants fled from the bank.

[1] The positive identification made of the defendants by certain employees of the bank and by the two or three persons who by chance were transacting business with the bank at the time of the attempted robbery, considered in connection with other corroboratory evidence, established the guilty participation of the three defendants in the commission of the crime charged against them, beyond a reasonable doubt. Defendants Montijo and Bailey made confessions and each gave in detail accounts of the preparation made by the three defendants and Oscar Perry for the commission of the crime as well as the part each defendant actually took in its commission. Bailey took the officers over the route the defendants traveled in going to the bank and the course he took in his flight. Taken to the bank by the officers he pointed out the positions occupied by the several defendants, the bank employees and the customers. In fact he identified certain of the employees and passed a few words with them as to how certain ones acted under the stress of the situation. His description as to what took place and the sequence of events narrated by him made it morally certain that he had been an actor in the tragedy. Both Monti jo and Bailey made mention of physical facts

[2] The insufficiency of the evidence to sustain the judgment is not, and in the light of the facts of this case, could not well be urged as a sufficient ground to justify a reversal of the case. It is urged that the court committed reversible error by refusing to grant the motions of defendants Perry and Bailey, in which Montijo did not join, for separate trials. These motions were placed upon the ground that it was believed by the other defendants that Montijo had made a confession which was to be introduced in evidence by the prosecution, incriminating both Perry and Bailey and that any extrajudicial confession made by any one of the defendants not in the presence of either of the others was not admissible against either of the parties not present and who were in no way a party thereto. Further, that if the three defendants were tried jointly the confession of Montijo would inevitably be considered by the jury that was also to pass upon the guilt or innocence of the other two defendants. Clearly Bailey was not prejudiced by any confession that Montijo may have made, as he, too, had made a confession that was practically demonstrative of his guilt and was more damaging to him than anything that Montijo had said or done. As to Perry, he had been unmistakably identified by several persons as a participant in the crime and within one hour after the shooting was found bearing bullet wounds freshly made upon his body. Identified clothing worn by him, revolvers, cartridges and other physical facts had lain the weight of guilt heavily upon him. Montijo, of course, like Bailey, could not get away from his own confession, if it was legally receivable in evidence. We have said this much preliminarily to a consideration of the objection made, to show •that if it should be conceded that the court erred as to a matter of procedure the error did not result in a miscarriage of justice. With the confession complained of wholly eliminated from the jury’s consideration the evidence was amply sufficient to justify the conviction of all or any one of the defendants. We are of the opinion, however, that we cannot hold, as a matter of law, that the court abused its discretion by refusing to order a separate trial as to either Perry or Bailey.

“Defendants jointly charged must be jointly tried. When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly unless the court order separate trials. In ordering separate trials, the court in its discretion may order a separate trial as to one or more defendants and a joint trial as to the others or may order any number of the defendants to be tried at one trial and any number of the others at different trials or may order a separate trial for each defendant. ...” The remainder of the section regulates the number of challenges that each defendant shall be entitled to if the trial be joint, and it is not germane to the point under consideration.

The motion for a separate trial for each defendant was presented at a seasonable time before the trial began and was based upon an affidavit made by the attorney for the moving defendants upon information and belief. It was averred that a confession had been made by Montijo which was to be offered in evidence by the prosecution and that the confession incriminated and implicated both Perry and Bailey in the commission of the crime charged. There was no averment or reference made to the fact that Bailey had also made a confession incriminating Perry and Montijo. The confession of Montijo, it was averred, would be highly prejudicial to defendants Perry and Bailey and even though limited by the court to the confessor alone, it would make an ineffaceable impression upon the jury which could not be disregarded by it and that it would influence the jury to the extent that said defendants would be substantially denied a fair and impartial trial. Prior to the amendment of 1921 each defendant jointly charged with the commission of a felony was entitled to be separately tried upon request made by him for a separate trial. [3] At common law a defendant jointly charged with others was not, as a matter of right, entitled to a separate trial. Our code section as it now stands is declaratory of the common-law rule. There is no decision of this court which disposes of the precise question here presented. The question, however, is not a new one. It has received the attention of the Massachusetts supreme court and the United States su

“The indictment charged the defendant and one Antono Kolek with having committed the crime of murder by killing Rose Amansky. Both were convicted, but Kolek has deceased. It does not appear to have been disputed at the trial that the woman was murdered.

“Borasky seasonably filed a motion that he should have a separate trial on the grounds that there would probably be introduced in evidence a written confession made by Kolek, which implicated both defendants, and that, as he had been unable to obtain a copy, the court should order the commonwealth to furnish a copy, in order that it might be annexed to his motion. At the argument in support of the motion the judge was requested to examine the confession in the presence of the district attorney, and in the absence of the defendant Borasky or his counsel. There was. no error in the denial of the motion. Whether two defendants indicted jointly should be tried together is discretionary with the trial court. This has been decided many times respecting the trial of crimes involving a punishment less than capital. (Citing Massachusetts cases.) In Commonwealth v. James, 99 Mass. 438 , it was stated, in the course of a trial for murder heard by the full court sitting in banc for the trial of two defendants jointly indicted for murder, that ‘the general rule is that persons jointly indicted should be tried together. ’ The confession was there regarded as presenting ‘an exceptional case’ and it was intimated that a separate trial would be granted if the commonwealth intended to offer the confession. It was not offered and was. withdrawn by the commonwealth, and a joint trial was had. It does not appear that the intimation there was thrown out in any other way than as the exercise of discretion. That such a .motion is not to be granted as of right but rests in the sound judicial discretion of'the trial court, even in capital cases, is the rule in the federal courts. (United States v. Marchant, 12 Wheat. (U. S.) 480 [ 6 L. Ed. 700 ]; United States v. Ball, 163 U. S. 662 , 672 [ 41 L. Ed. 300 , 16 Sup. Ct. Rep. 1192 , see, also, Rose’s U. S. Notes].) There is nothing in the case at bar to indicate any abuse

So, too, in the instant case, the jury was scrupulously admonished by the court whenever the confessions made ,xby either Montijo or Bailey, were referred to, that such confession could not be taken as evidence against the party who had not made it, and it must be disregarded as to all the other persons. Not only was the admonition repeated time after time during the progress of the trial, but again in the final charge to the jury.

In almost every criminal trial in which two or more persons are jointly charged with the commission of an offense some fact, or facts, are developed against one of the defend: ants which cannot be regarded as evidence against the other. In the prosecution of criminal conspiracies, or that class of cases which require more than one to execute the crime, it quite frequently happens that damaging testimony admissible against one defendant, but not admissible against the others, is received in the case, but limited in its application to the one to which it is referable. Such evidence may carry with it an unfavorable effect equal in its harm to a confession. Yet it is not the rule in those jurisdictions in which the common law prevails or in states which have statutes similar to our own, that the defendants are entitled to a separate trial for that reason alone. The motion for severance in the case at bar was submitted to the sound discretion of the trial court, and considered with respect to the evident reason for the amendment, and the circumstances of the instant case, we cannot say that it was error to deny the motion. What we have said applies also to the separate request of Montijo, whose request was not supported by the same showing as was made in behalf of the other defendants.

[4] It is next urged that error was committed in overruling objections made by the defendant to testimony offered tending to identify a certain red, five-passenger Buick automobile, sport model, 1923, disc wheels, tan top, red upholstery, which, it is claimed, had been stolen, and was used

The confessions of Montijo and Bailey appear to have been freely and voluntarily made. The trial court so determined and there is absolutely nothing in the record to raise a doubt as to the correctness of its ruling. The witnesses who gave testimony as to the confessions were examined at great length on their voir dire and counsel for the defendants were not able to show that any threats, force, or coercive measures were employed or that any inducements or hope of reward were held out by those in authority, or by any other person, to procure said statements or confessions to be made. [6] The court is vested with a wide discretion in passing upon the issue and its ruling cannot be interfered with in the absence of a showing of abuse. (People v. Loper, 159 Cal. 6 [Ann. Cas. 1912B, 1193, 112 Pac. 720 ]; People v. Siemsen, 153 Cal. 387 [ 95 Pac. 863 ]; People v. Tugwell, 28 Cal. App. 348 [ 152 Pac. 740 ] ; People v. Castello et al., 194 Cal. 595 [ 229 Pac. 255 ].) In resisting the introduction of the confession, Bailey made the claim that he had been imposed upon by the officers, who represented to him that his “pal” (Perry) had died and in his dying confession had implicated him in the crime.

Specifications of error numbers 7, 8, and 9 may be treated together, as they raise the same point and are attacks upon the instructions of the court based upon the construction of section 189 of the Penal Code. That portion of the section which is germane to the point made, is as follows: “All murder which is perpetrated by means of poison ... or which is committed in the perpetration or attempt to perpetrate arson, rape, robbery, burglary or mayhem, is murder of the first degree; all other kinds of murders are of the second degree.” The purport of these instructions is, that if a human being is killed by any one of several persons jointly engaged at the time of such killing in the perpetration of or an attempt to perpetrate the crime of robbery, whether such killing is intentional or unintentional, or accidental, each and all of such persons so jointly engaged in the perpetration of, or attempt to perpetrate such crime

[8] It is urged by the appellants that the court erred in giving the jury any enlightenment whatever on the subject of insanity. None of the instructions is challenged as being incorrect statements of the law, but it is insisted that no instructions whatever should have been given defining mental unsoundness for the reason that no claim was made that any one of the defendants was insane. It is, perhaps, true that no specific use was made of the word “insanity” by counsel, but five alienists, or psychologists, were called by the defense and gave testimony bearing directly on the mental deficiency of the defendant Montijo. His father was called to the stand to relate the story of his life. Pie recalled an injury which the defendant had received in his youth upon his head; also his incorrigibility as a youth, which resulted in his commitment to a reformatory; his roving inclinations and occasional nervous seizures to which he was subject, and mental peculiarities and obtuseness were brought into the case by the father’s testimony. It was also shown that he had been a user of narcotics and some reference was made to a blood taint. The experts testified that his intellectual quotient, as gauged by the Binet-Simon test, Leland Stanford Jr. University Revision, was no higher

Lastly, it is urged that the evidence does not justify the implied finding of the jury that the defendant Perry had arrived at the age of eighteen years on the day the murder was committed. Section 190 of the Penal Code, in part, provides as follows: ”... provided, however, that the death penalty shall not be imposed or inflicted upon any person for murder committed before such person shall have reached the age of eighteen years; provided, further, that the burden of proof as to the age of said person shall be upon the defendant.” Defendant’s brother, Oscar Perry, who was shown by convincing evidence to have been particeps erimims with the other’s in the commission of the crime, testified that Lewis Perry was a few days under the age of eighteen at the time the murder was committed. At one stage of the proceedings the matter was referred to a juvenile court to determine the defendant’s age and pass upon his fitness for consideration by that court. The court made no finding as to his age, but expressed the opinion that he was over the age of eighteen years, and remitted him to the superior court for trial on the ground that his case was not a proper one for that court to proceed with. At that proceeding the defendant testified that he was born at Dallas, Texas, and was seventeen years of age. He claimed that his birthday was February 12th. This would have made him eight days under the statutory age. He also admitted that

Lawlor, J., Richards, J., Shenk, J., Waste, J., Myers, C. J., and Lennon, J., concurred.

Rehearing denied.

All the Justices concurred.