People v. Bollinger

The defendant was charged by indictment with the crime of murder. He pleaded not guilty to the indictment, was tried on the charge, and found guilty of murder in the first degree, the verdict carrying the death penalty. In due course a motion for a new trial was interposed by defendant and denied, whereupon judgment of death was pronounced upon him. The appeal is from said judgment sentencing him to death and from the order denying defendant’s motion for a new trial.

The evidence introduced at the trial tends to show that on May 27, 1924, C. J. McCoy, sheriff of Tuba County, was informed, by an itinerant laborer, named Dan McVey, that a dead man was lying in a body of water called Nigger Jack or Simmerley Slough situated near the cemetery north of Marysville; that said sheriff notified the county coroner; that the coroner repaired to said slough and found the dead body lying face downward, partly submerged; that a superficial examination at the time showed the deceased had been subjected to great violence—the skull was crushed in and several ribs broken; that decomposition had set in; that in the month of April, 1924, appellant and his wife, were camping or stopping at an auto camp in Yolo County, across the river from Sacramento; that a man well along in years and known thereabouts only as “Alex” was also stopping at said auto camp at the same time; that appellant and his wife struck up an acquaintance with “Alex”; that when “Alex'” first came to the auto camp he had with him a horse and rig together with a supply of camping utensils; that while there he purchased or acquired another horse and rig; that subsequently, and about April 15, 1924, appellant, his wife, and “Alex” left the auto camp together-appellant, accompanied by his wife, driving one horse and rig and “Alex” the other; that upon their departure from said auto camp they proceeded along the road leading from Sacramento to Marysville; that twenty-five or thirty days later appellant and his wife were seen by C. Z. Berry driving along the Twelfth Street road toward Sacramento; that

Subsequent to the coroner’s discovery of the body in the slough appellant was arrested and made a confession in which he told of the killing of “Alex” with an ax, stating therein that deceased had previously threatened his life. The confession assumed to set forth the movements of the trio following their departure from the camp grounds.

2 and 3. We will consider first appellant’s second and third claims of reversible error, for if those contentions have merit it would not be necessary to consider the other points made on appeal. The second and third claims of reversible error are thus stated:

“2. The ruling of the trial court holding that the prosecution had sufficiently proven the corpus delicti to admit proof of the so-called confession, statement, or admission of the defendant is reversible error.”

“3. The denial of defendant’s motion for an instructed verdict is reversible error . . . what we have said under previous headings of this brief and the eases cited under citation of error Number 2 apply here. ...”

We will now set forth the substance of the evidence which had been received before the asserted confession was admitted.

Prank Bevan, coroner of Tuba County, testified that on the evening of May 27, 1924, he found the body of a dead man in the waters of Nigger Jack, or Simmerley Slough; that the face was in the water as was the front part of the body; that the body was in a nude condition with the exception that it had on a part of an undershirt and a torn and tattered blue denim working shirt; that he removed the body from the water, made a casual examination, and placed it in the receiving vault; that such casual examination as was made at that time revealed .that the body had

Doctor Allen E. Gray testified that on the morning of June 4, 1924, he was called to the Marysville cemetery to and that he did perform an autopsy; that there were present at that time the coroner and his assistant; that the autopsy disclosed the body of a man about five feet, six inches in height and apparently past fifty years of age; that the body was badly decomposed and parts of the skin and flesh were missing; that the top of the scalp, a part of the skull itself and the brain were missing; that the top of the skull was badly fractured and the fracture ran down toward the left orbit and the nose; that the eyes were missing and the flesh decomposed; the same being true of the skin and flesh of the nose; that there were no teeth and no signs of their recent removal; that there was a fracture of the third, fourth, and fifth rib on the left side and that there was a bandage on one finger; that there were no other bones broken or other marks of violence; that, in his opinion, “death came from a blow on the man’s head”; that the man evidently had been dead three or four weeks or longer. On cross-examination he stated he could not say positively that these injuries were received before death; on redirect examination he declared that deceased did not have the appearance of a man that had been drowned.

C. Z. Berry testified that in the month of April, 1924, he worked in the grocery store in the camp grounds conducted by his brother, the preceding witness, at Sacramento; that he was acquainted with appellant, his wife, and “Alex”; that “Alex” was about sixty years of age, weighing 140 or 145 pounds and probably five feet, six inches in height; that he never saw any teeth in his mouth; that “Alex” had with him while at said camp grounds a brown mare and a sorrel or chestnut; that the last time he ever saw “Alex” was about the 20th of April, 1924; that he also saw appellant at about the same time at the camp grounds; that he saw appellant and his wife about twenty-five or thirty days later on the Twelfth Street road going toward Sacramento; that each was driving a horse and wagon, the appellant being in the lead; that the horses “resembled the horses the old gentleman had”; that they appeared to have a camping outfit with them. On cross-examination he declared “Alex” had no teeth in front as he saw none while talking with him in the store; that it was impossible to positively recognize the horses appellant and wife had with them on the last occasion on which he saw them as the

Louis Pasquini testified that June 15, 1924, he saw appellant and his wife for the first time across the road from his blacksmith-shop, one block north of the city limits of Napa; that they had with them at the time “two horses and two rigs, two complete single rigs, spring wagons and camping utensils”; that on the following day appellant came to him and wanted to sell out everything he had, including two horses which he described as “One was a bay and the other a sorrel”; that appellant told him his wife was sick and he therefore desired to sell out everything he had so that he might take his wife to Oakland and to a hospital; that at that time he purchased from him “The cooking utensils and the camping utensils, tents, tables, everything of that sort; cooking utensils, camping outfit, tents, tables, and so forth”; that he (the witness) had no use for the horses and rigs and therefore declined to purchase them; that he recognized two axes, a table, tent, box, bucket, and mattress shown him, as being part of the outfit he bought from appellant.

Joseph A. Marshall testified that he saw appellant on the 16th of June, 1924, across the street from Pasquini’s blacksmith-shop ; that at this time he bought a sorrel horse, spring wagon, and harness from him.

C. D. Butler testified that he saw appellant in the city of Napa June 16, 1924, and that upon this occasion he purchased from him (appellant) a brown mare, harness, and wagon.

The coroner, being recalled, testified that the body he recovered from the slough did not have the appearance of one that had been drowned; that he was at the slough again on June 26, 1924, when C. J. McCoy, sheriff of Yuba County, recovered a bed; that the bed, shown him, was the bed found by the sheriff upon that occasion; that said bed was in the sheriff’s office later when the appellant, the district attorney, the sheriff, and himself were present; that upon said occasion, so far as he was aware, no threats or inducements were made to appellant; that the sheriff asked appellant, “Is that the old man’s bed or bedding?” that he hesitated a few seconds and finally answered “Yes.”

Joseph E. Pipher testified that he was a shorthand reporter of the Sacramento superior court; that on the twenty-fifth day of June, 1924, he saw appellant at his (Pipher’s) house; that there were present at this time the district attorney, the sheriff, Deputies Wilcoxson and Robbins, the appellant, and himself; that they gathered about 7:10 o’clock in the evening; that no threats were made or promises held out to appellant and that his statement was freely and voluntarily made.

The rule requiring proof of the corpus delicti before the admission of extrajudicial confessions is thus stated in 8 Cal. Jur., page 234, section 303:

[1] “ Proof of Corpus Delicti and of Admissions and Confessions.—Logically, the first point to which the evidence

of the people should be directed is the corpus delicti. This should be established before the introduction of evidence tending to connect the defendant with the offense. The rule, however, does not go so far as to exclude, in showing the corpus delicti, proof of the defendant’s connection with the crime, where the circumstances of the case are such that proof of the crime involves proof of defendant’s guilt.

[2] “Admissions or confessions.—Proof of the corpus delicti should be made before the introduction of evidence of extrajudicial statements or admissions, and confessions. But in the absence of any showing of prejudice, irregularity in the order of proof is of no consequence, if the commission of the crime is ultimately established independently of the alleged admissions of the defendant.

[3] “ To authorize the reception and consideration by the jury of evidence of an extrajudicial confession or admission of a defendant, the people need not establish the corpus delicti by proof of the clear and convincing character required to support a conviction. It is sufficient if there is some proof, or prima facie proof, or even slight proof of the corpus delicti. The uncorroborated testimony of a witness is sufficient to establish the corpus (delicti for this purpose, even when the statute requires corroboration before a conviction can be had. Indeed, the confession of the defendant will furnish sufficient corroboration. But proof by hearsay testimony is insufficient. Since the criminal agency of the defendant is not an element of the corpus delicti, it is not necessary that the evidence of the corpus delicti should itself connect or tend to connect the defendant with its perpetration in order to make evidence of the confession admissible.”

Applying this rule, we think that the trial court in denying the motion to advise the jury to acquit on this ground correctly summarized the evidence and disposed of the legal question involved. We quote: “The motion is denied, the corpus delicti was sufficiently proven before any testimony of any statement of the defendant was introduced. The law as to that is very clear; the body was found, the man was dead; the body exhibited external marks of violence, skull crushed in, the brains gone, evidently the body of a man who had been dead some time; decomposition had set in. The doctor expressed the opinion that the cause of death was

It is apparent from the foregoing that the evidence of the voluntariness of the confession was ample. The evidence having been held to be sufficient to justify the admission of the extrajudicial confession, we will now set forth the substance thereof: That he had been married a little over a year; that on April 24, 1924, or the latter part of April,

Appellant did not appear as a witness on the trial. His wife, Eva Bollinger, testified, however, that the man who was with them (“Alex”) on the trip from Sacramento in April, 1924, told her that he would “get” her husband yet; that she told her husband of his threat out by the cemetery near Marysville. On cross-examination she admitted that he made these threats because “he thought my husband neglected me and had me working, that is, the words he spoke about my husband”; and, that, in a conversation with the sheriff, she stated there was “no truth” in her husband’s statement that the old man had made threats against him at two named places, adding “ . . . but my husband was very jealous of the old man, but I told my husband if I was going to have anything to do with a man I wouldn’t have anything to do with an old man, but I would pick a young man.” It is proper to state in this connection that the jury was at the request of appellant elaborately charged on the subject of self-defense or justifiable homicide within the meaning of sections 197 and 198 of the Penal Code and the decisions thereunder, although the only evidence bearing on said question was that given by Eva Bollinger, as above stated, and the extrajudicial declarations of appellant.

As we read appellant’s brief it is not claimed that the evidence presented on the trial is insufficient to sustain the verdict. But in the statement of the grounds on appeal (sec. 1247, Pen. Code) it is declared:

“(3) That the verdict is against law.

“(4) That the verdict is contrary to the evidence.”

[4] Touching these contentions, and assuming they are before us, it is sufficient to point out that the evidence we have summarized abundantly supports the verdict rendered

[5] 1. In the first assignment of error it is contended that the judgment is void for the reason that the jury in its verdict failed to fix the penalty as provided in section 190 of the Penal Code. The verdict rendered reads as follows: “We, the jury in the above-entitled cause, find the defendant, Alfred Bollinger, guilty of murder of the first degree as charged in the indictment.”

Section 190 of the Penal Code reads: “Every person guilty of murder in the first degree shall suffer death, or confinement in the state prison for life, at the discretion of the jury trying the same. ...” It is true the jury alone shall determine in a case of murder in the first degree whether the punishment shall be death or confinement in the state prison for life and that the jury after exercising such discretion shall by its verdict, either by its terms or when read in the light of the instructions, plainly indicate the punishment fixed. It is clear that the verdict in this case, considered in the light of the following instruction, calls for the death penalty and that the judgment is not void because of the failure of the verdict to specify therein, in terms, the punishment to be inflicted. The instruction reads: “If you find the defendant guilty of murder in the first degree it is at your discretion to fix his -punishment; that is to say, whether the defendant shall suffer death or confinement in the state prison for life. If, in the exercise of such discretion, you think the defendant should suffer death, you will merely find him guilty of murder in the first degree; but if on the other hand you fix his punishment at confinement in the state prison for life, you will specify the same in your verdict.” (Italics added.) In conformity with the said instruction the jury, having determined on the extreme penalty, simply brought in a verdict of guilty of murder in the first degree without specifying in terms the punishment to be inflicted. This follows the instruction for it indicated that if the death penalty was determined upon the punishment should not be specified in the verdict; the only reference to be made to the punishment in the verdict was in the event the jury resolved on life imprisonment—“but if on the other hand you fix his punishment in the state prison for life, you will specify the same in

[6] 4. Having shown that the verdict is sufficient, we will next consider appellant’s fourth assignment of error that the quoted instruction itself was erroneous in that it constituted an interference by the court with the discretion exclusively reposed in the jury to fix the punishment to be inflicted in murder of the first degree. We do not perceive in said instruction any attempt to interfere with the exercise of the discretion of the jury in fixing the punishment in the event they should find appellant guilty of murder in the first degree. The instruction is hypothetical in form—“If you find the defendant guilty of murder in the first degree” —and it then proceeds to instruct the jury as to the form of verdict to be rendered if the death penalty is determined upon, and the form of verdict if it is resolved to prescribe life imprisonment. It is clearly an instruction as to how the punishment determined by the jury shall be expressed— not what the punishment shall be. It is not necessary, therefore, to pursue the contention further or to consider the authorities cited by appellant, for in addition to this instruction being free from criticism, the instructions reviewed in those authorities assumed to direct the jury as to how the discretion in the matter of punishment should be exercised.

5. Appellant’s next contention is thus stated:

[7] “ The giving of the following instruction was reversible error, to-wit:

“ ‘If the jury in this ease should find the defendant guilty of murder in the first degree and they also shall find the further fact that there is some extenuating fact or circumstance in the case, it is within their discretion to pronounce such a sentence as will relieve the defendant from the extreme penalty of the law. The jury in a criminal case for murder is vested with a discretion but the discretion is not an arbitrary one, and is limited to determining which of two punishments shall be inflicted, and is to be employed only when the jury- is satisfied that the lighter penalty should be imposed. If the evidence shows the defendant to be

guilty of murder in the first degree but does not show some extenuating fact or circumstance, it is the duty of the jury to find a simple verdict of murder in the first degree, and leave with the law the responsibility of affixing the punishment. ’ ”

It is contended that the instruction is erroneous “for the reasons and under the authorities cited and discussed under the heading ‘ Error 1’ in this brief and we think it is unnecessary to further discuss that phase of the case.” The authorities referred to are Winston v. United States, Strather v. United States, and Smith v. United States, 172 U. S. 303 [ 43 L. Ed. 456 , 19 Sup. Ct. Rep. 212 , see, also, Rose’s U. S. Notes]. These cases involved the act of Congress of January 15,1897, chapter 29, 29 Stats, at Large, 487, which reads in part: “In all cases where the accused is found guilty of the crime of murder . . . the jury may qualify their verdict by adding thereto ‘without capital punishment’; and whenever the jury shall return a verdict qualified as aforesaid the person convicted shall be sentenced to imprisonment at hard labor for life.” The juries in those cases were instructed in effect that their discretion was not an arbitrary one and that the qualification should be added to the verdict only in those cases showing palliating or mitigating circumstances. In condemning the instructions and reversing the judgments, the court said:

“The right to qualify a verdict of guilty, by adding the words ‘without capital punishment,’ is thus conferred upon the jury in all eases of murder. The act does not itself prescribe, nor authorize the court to prescribe, any rule defining or circumscribing the exercise of this right; but commits the whole matter of its exercise to the judgment and the consciences of the jury. The authority of the jury to decide that the accused shall not be punished capitally is not limited to cases in which the court, or the jury, is of opinion that there are palliating or mitigating circumstances. But it extends to every ease in which, upon a view of the whole evidence, the jury is of opinion that it would not be just or wise to impose capital punishment. . . .

“The instructions of the judge to the jury, in each of the three cases now before this court, clearly gave the jury to understand that the act of Congress did not intend or authorize the jury to qualify their verdict by the addition

of the words ‘without capital punishment,’ unless mitigating or palliating circumstances were proved.

“This court is of opinion that these instructions were erroneous in matter of law, as undertaking to control the discretionary power vested by Congress in the jury, and as attributing to Congress an intention unwarranted either by the express words or by the apparent purpose of the statute; ...”

We have already quoted the pertinent part of section 190 of the Penal Code. Before the amendment of that section in 1873-74 (Stats. 1873-74, p. 457) it read as follows:

“Every person guilty of murder in the first degree shall suffer death. ...” It is clear beyond question that by the language of the amended section—“Every person guilty of murder in the first degree shall suffer death, or confinement in the state prison for life, at the discretion of the jury trying the same; . . . ’ ’—two changes were made in the law as to the punishment for murder in the first degree—first, that the punishment may be either death or life imprisonment; and, second, that the discretion of determining which punishment shall be imposed was vested in the jury alone. For, as declared in the above federal eases, the law places no restriction upon the jury’s exercise of such discretion, nor does it attempt to confine its exercise to eases presenting palliating or mitigating circumstances. In our opinion, the trial court should never instruct the jury as to how the discretion should be exercised. The legislature has “confided the power to affix the punishment within these two alternatives to the absolute discretion of the jury. ...” (People v. Leary, 105 Cal. 486 , 496 [ 39 Pac. 24 ].) The question is not a new one in this state and while in no instance has it been held that the giving of such an instruction is erroneous under the decisions, yet no ease has declared that such an instruction comes within the meaning of section 190 of the Penal Code.

In People v. Bawden, 90 Cal. 195 [ 27 Pac. 204 ], which involved three instructions whose import is almost identical with the one now under discussion, this court said:

“If the question here presented were a new one, there would be strong reasons for holding that by section 190 of the Penal Code the legislature intended to give to the jury the entire power of fixing the punishment in such a

case, uninfluenced by the court; and that there is no warrant in the code for any distinction, in this regard, between one kind of murder in the first degree and another. But these instructions are literal copies of instructions given and approved by this court in People v. Brick, 68 Cal. 190 [ 8 Pac. 858 ]. The same rule was also substantially stated in People v. Jones, 63 Cal. 168 , and in People v. Murback, 64 Cal. 369 [ 30 Pac. 608 ], the language of the instructions approved was almost identical with that used by the court in the case at bar, although it may be said that in the Murback ease the opinion of the court was hardly in consonance with the instructions approved. The same rule seems to have been approved in People v. Olsen, 80 Cal. 128 [ 22 Pac. 125 ].

“Similar instructions have no doubt been given in other cases now on their way here by appeal; for it is to be observed that whenever a doubtful instruction has been approved by this court, it has generally been seized upon and injected into future eases. Great confusion would therefore occur if we should enter into a new examination of this question, and should come to a conclusion opposite to that heretofore reached. Moreover, as was said by the court, on another subject, in People v. Myers, 20 Cal. 520 , ‘we do not think this question has practically so much importance as is sometimes attributed to it’; for a juror, exercising the responsibility of choosing between the imprisonment of a defendant and his death, will act upon his own discretion, and not upon that of another. Therefore we decline to reopen the question, and hold that the instructions, under the authorities, were not erroneous. It is to be hoped, however, that trial courts will not make further excursions into this doubtful domain.”

Notwithstanding this concluding suggestion the court has been called upon to consider the question in the following cases: People v. Leary, supra; People v. Rogers, 163 Cal. 476 , 483 [ 126 Pac. 143 ]; People v. Wolfgang, 192 Cal. 754 , 761 [ 221 Pac. 907 ]; People v. Casade, 194 Cal. 679 [ 230 Pac. 9 ]; People v. Craig, 69 Cal. Dec. 431, 436 [ 235 Pac. 721 ]; People v. Perry et al., 195 Cal. 623 [ 234 Pac. 890 ].

While we are satisfied that the giving of such instructions is opposed to the provisions of section 190 of the Penal Code, we are not prepared to depart from the decisions on

[8] 6. The next contention is that the court committed error in reading to the jury section 1105 of the Penal Code, which provides: “Upon a trial for murder, the commission of the homicide by the defendant being proved, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable.” It is contended that “This instruction assumes that the commission of the homicide by the defendant has been proved. It is equivalent to instructing the jury that such proof has been made. It is an instruction upon a question of fact. The jury, under such instruction, were told by the court that the question of fact, to-wit, whether or not the homicide had been committed by the defendant, had been proved and that they were no longer to consider that question as in doubt. . . . This same instruction was given in the ease of People v. Tapia, 131 Cal. 647 [ 63 Pac. 1001 ], and was there held by this court to be prejudicial error.”

The giving of the instruction was doubtless prompted by appellant’s claim that the deceased told Mrs. Bollinger he would “get” her husband and that she repeated the threat to appellant, at the cemetery near Marysville. Appellant’s objection is similar to that made in People v. Grill, 151 Cal. 592 , 595 [ 91 Pac. 515 , 516], and what was said in that case completely disposes of the contention. We quote:

“The court in its instructions read to the jury section 1105 of the Penal Code. . . . The phrase objected to was not

inserted in the instruction as a statement by the court that the commission of the homicide by the defendant had been proved. It was meant as an expression of a condition or event, upon which the succeeding part of the instruction would become applicable, and that is its true rhetorical meaning when considered in connection with the text. Its signification is the same as if the sentence began thus, ‘When, upon a trial for a murder, the commission of the homicide by the defendant has been proved, ’ etc. Thus understood, it does not constitute a statement of the fact by the court. In People v. Tapia, 131 Cal. 647 [ 91 Pac. 515 , 516], this instruction was given with some additions declaring the extent of the burden of proof cast upon the defendant. It was criticised in that ease upon the ground that the jury might have understood the above-quoted phrase as a declaration that the fact referred to had been proved. The defendant in that case did not attempt to mitigate, justify or excuse the homicide, but denied that he had committed the act. Consequently, it was said, ‘the instruction should not have been given, for it was entirely inapplicable. ’ . . .

“In the present case the instruction could not have been so understood by the jury. Other instructions repeated frequently the proposition that the jury were the exclusive judges of the facts. ... In view of these instructions it would be impossible for any jury of ordinary intelligence to have supposed that the instruction complained of was intended to state to them that the fact that the defendant had committed the homicide had been proven.”

[9] 7. Under this assignment of error it is asserted that the court erred in refusing an instruction “that in a murder case the 'burden is on the prosecution to establish the corpus delicti to a moral certainty and beyond a reasonable doubt.” It appears that the court gave several instructions upon the necessity of the prosecution proving the corpus delicti, and though none of them expressly stated the measure of proof required of the prosecution to prove that element of the crime, the court, after defining the term “corpus delicti,” its essential ingredients, and declaring that the burden was on the prosecution to establish it, gave the following instruction :

“The corpus delicti may be established by direct or circumstantial evidence. But it cannot be established by the

extrajudicial admissions or confessions of the defendant, or, as the rule is frequently expressed, a conviction cannot be had on the extra-judicial admissions or confessions of the defendant unless corroborated by proof, outside of such admissions or confessions, of the corpus delicti. It is a rule of evidence that admissions or confessions of a party are never sufficient to convict unless and until the corpus delicti is proved. After proof of the corpus delicti, then, and then only, admissions or confessions, if any have been established by the evidence to a moral certainty and beyond a reasonable doubt, may be used by the jury in determining whether or not the defendant is guilty as charged in the indictment.” From this and the instructions given to the jury on “reasonable doubt” and kindred subjects, we think the jury was instructed that the corpus delicti as well as every other essential of the offense must be established to a moral certainty and beyond a reasonable doubt.

8. Appellant’s final specification of error is thus stated:

“For the reasons given under the previous assignments and the cases there cited, we think it was error 'for the court to refuse defendant a new trial.”

In view of the disposition we have made of the preceding points it must be held that this contention is without merit.

The judgment and order denying appellant’s motion for a new trial aré affirmed.

Shenk, J., Richards, J., Seawell, J., Lennon J., and Waste, J., concurred.