People v. Stone

The defendant was accused by the grand jury of Los Angeles County of the murder, on August 23, 1924, of Nina and May Martin, eight and twelve years of age respectively. The jury found him guilty of murder in the first degree and fixed the penalty at death. He was sentenced accordingly and has appealed from the judgment of conviction and from the order denying his motion for a new trial. The primary question for our consideration is the contention of the defendant that the corpus delicti was not established and that therefore the court erred in admitting in evidence his extrajudicial statements and admissions. The facts tending to establish the corpus delicti are undisputed and are substantially as follows:

The deceased were the children by a former marriage of Mrs. Paul Buus. Prior to the time of their disappearance they were living with their mother and stepfather at 2854 South Mansfield Street in the southwesterly portion of the city of Los Angeles. They were healthy and apparently normal children and left their home in -a happy frame of mind about 6:15 P. M. on August 23, 1924, to go to the home of their grandmother who lived about three blocks distant. They were never seen alive after that night. When they did not return home that evening their disappearance was heralded abroad and searching parties were organized. Several hundred persons, officers and inhabitants of the neighborhood, engaged in the search without avail. On February 4, 1925, Julio Martinez, a Mexican youth, discovered what proved to be their remains in a small ditch from eighteen inches to two feet in depth. This ditch for some distance traversed a large cultivated field near the base of the Baldwin Hills in the same section of the city and had been used at one time as an irrigating ditch. At the time of the discovery the land in the vicinity was being sowed with seed in anticipation of a forthcomng spring crop of grain. There were no trees in the locality,

but tall weeds had grown along the ditch where the bodies lay. The remains were covered with cut weeds and the only part thereof exposed to view was a small portion of a leg of one of the children. A shoe was on the foot and another shoe was found some seventy-five feet away. The bodies were badly decomposed, practically nothing remaining but the skeletons. The body of the older girl lay face downward with the head toward the north and was to the right of the body of the smaller girl, which lay in the same direction and a foot or two distant. The clothing of both was disarranged but was positively identified as the clothing worn by the children at the time of their disappearance. The measurements of the bodies corresponded with those of the living children. The place where the bodies were found was several hundred feet southerly from the Pacific Electric Railway Company’s “Air Line” tracks which ran along a slight embankment. The territory southerly from the railway tracks was an uninhabited section and extending from the spot where the remains were found to the nearest highway was an old dirt road or trail. Across the railroad track to the north was a tract of land newly subdivided.

[1] From the facts and circumstances shown in evidence death and identification were established beyond the peradventure of a doubt. Furthermore, the showing of the age of the children, the circumstances of their home life, their sudden disappearance, the discovery of the bodies covered with cut weeds in a ditch in an isolated field as above related were sufficient to exclude any reasonable hypothesis that death was due to natural causes, justifiable homicide, suicide or accident. The only inference that could reasonably be drawn from these facts and circumstances was that the children had met their death as the result of criminal agency. Such facts and circumstances were therefore sufficient to establish the corpus delicti and were shown in evidence in advance and independently of extrajudicial statements and admissions of the defendant. Consequently such statements and admissions were properly received in evidence.

[2] The next contention of the defendant is that, assuming the corpus delicti to have been established, the evidence was insufficient to connect him with the commission of the crime. Aside from the statements and admissions

The statements and admissions of the defendant which tended to connect him with the commission of the crime were developed through the testimony of numerous witnesses, the most damaging of which came from the lips of a fellow-prisoner of the defendant while in the county jail. This witness was Alva H. Floyd, who had been city recorder of Culver City for several years and is referred to in the record as Judge Floyd. This witness was confined in the same tank with the defendant and was approached by the defendant with a request that he advise the defendant as to how he could extricate himself from his difficulty with reference to the Martin girls. This witness was not an attorney at law but he told the defendant that he would help him if he were told truthfully all the facts with reference to the defendant’s relations and conduct with those girls. A dozen or more conferences were had between the two. After each of these conferences the witness transcribed the substance of the conversation in typewriting. These transcriptions were in the form of question and answer. They were read by the defendant in the presence of the witness and the accuracy thereof was never challenged by the defendant. During these conversations the defendant related that he knew the Martin girls, had taken them riding with him frequently in his automobile and had them with him in his room on at least one occasion; that Shorty Smith was batching with him in his room in August, 1924, and was assisting Mm at times in the performance of his duties as night watchman; that on the morning of August 23d the defendant arose about 10 o’clock; that he and Smith had breakfast together and then worked for a couple of hours on the defendant’s car; that they then went into the house, had something more to eat, drank some brandy, slept for a couple of hours, and then had three more drinks; that they then separated but returned to the house about 5 o’clock in the evening and had three more drinks; then in the evening the defendant picked up the Martin girls and went for a ride; that he bought them candy and then took them to a moving-picture show. He was asked: “Stone, did you ever at any time take any of the girls you had with you down to your room in the rear of the barber-shop í ” and

The defendant admitted to Floyd that he recalled the incident of nearly having a collision with another car on Jefferson Street on the evening of August 23d. He first denied that the children with him at that time were the Martin girls, giving the names of other children in the neighborhood as the names of those who occupied the car with him at that time, but he finally stated that the Martin girls were with him on that occasion. He admitted to this witness that he carried the large bundle across the railroad tracks on August 24th, but when asked what was in the bundle he refused to state. He admitted that Shorty Smith was with him on that occasion, but when asked where Shorty Smith lived he stated: “Thank God, he is gone to Arizona, and no one knows his address but myself, and I will keep it. ... I don’t want this boy Shorty Smith back here and if I can keep him away I am going to do so.” The defendant was then asked: “Stone, just tell me why you do not want Shorty Smith back in Los Angeles, has he got something on you about these Martin girls or does he know something else that you are mixed up in that has not been brought out? Do you think that Shorty Smith had anything to do with the murder of the Martin girls?” He answered: “I don’t want him back here as the sheriff’s office would grab him and God only knows what he would tell. He would say anything to save his own hide. He is a crook, I thought so when he was working for me. He is a dangerous kind of a fellow, will do anything. Q. Well, listen, Stone, if he is not connected with the Martin murder, let him talk, how can he hurt you? A. Judge, are you crazy? I told you a few moments ago that Shorty Smith was working for me on the night they say the Martin girls were killed, and he knows that I had them out in my car when I passed him in front of the drug store. The sheriff’s office would make him say I killed them, and he might even sign a statement, you know what the other boy did. He talked too much. I don’t want him back here. Q. Stone, you had been drinking all day Saturday and you are posi

The defendant also stated to the witness Elliott, who was another fellow-prisoner in the county jail, that “He didn’t think they would ever find Shorty Smith, that he was gone, . . . that he hoped that they never would find Mm.” . He was asked, “Why not?” and he replied, “Well, he ain’t competent and he knows too much.”

On June 29, 1925, Captain Hunter of the district attorney’s staff had a conversation with the defendant in which the latter was questioned as to Ms movements on August 23 and 24, 1924. He was uncertain and ineon

During the investigation as to the cause of the disappearance of the Martin children the defendant was taken to the sheriff’s office and there confronted with certain persons who had made statements tending to connect him with the commission of the crime. Among those persons wa!s Mrs. Winifred P. McIntosh, who was one of the occupants of the car with which the defendant’s car nearly collided on the evening of August 23d. She was ushered into the presence of the defendant on that occasion, and when asked to relate what the defendant did or said and what otherwise occurred on that occasion, replied: “Well, he said when I first went in, he said, ‘How do you do, Mrs. McIntosh!’ he said, ‘All I ask you women to do is to tell the truth, so if you tell what you have been telling you are putting a rope around my neck’; I said, ‘Mr. Stone, I have told nothing but the truth, and I have no intention of telling anything but the truth, ’ and then I asked—he asked where I had seen him, and I said, ‘On Jefferson with the Martin girls,’ and he said, ‘My God, what is the use to fight! If you say that, it is the rope for me.’ ”

At numerous times during his acquaintance with May Martin the defendant had taken her with him in his ear and had caused her to call at houses in the neighborhood to collect for him the two-dollar monthly fee for watchman services. On September 1, 1924, which was about a week after the children had disappeared, the defendant was asked by a woman who lived in the vicinity as to what had be- „ come of the little girl who used to come around and collect money for him, and his reply was that she had gone to Imperial Valley or Texas. Later on, when asked a similar question, he stated that the Martin children had gone to Chicago or. some other place, where they would get better care than they received at home.

The defendant did not take the witness-stand, and the evidence adduced on his behalf, mainly for the purpose of reflecting on the credibility of certain witnesses for the prosecution and in the nature of an alibi, was inconsequential and obviously did not have the effect desired in the minds of the jury, which was the sole judge of the credibility of all the witnesses produced at the trial. [4] And under section 190 of the Penal Code the responsibility of fixing the penalty rested solely with the jury.

[5] It is also contended by the defendant that the district attorney was guilty of prejudicial misconduct. The claim is predicated, first, upon certain portions of the opening statement of the prosecutor. In that statement the district attorney told the jury that he expected to prove that Deputy Sheriff Stensland arrested the defendant; that the defendant told him at that time “that he had been in .the habit of taking little girls out for a ride; that it was his duty as a watchman to take them out riding; . . . that he expected to prove that the defendant took them out for a lustful purpose; that at the time of his arrest he had upon his person the things that go with a libertine; . . . that when these children were found, the disarticulated corpses or skeletons that lay there, the position in which they were lying, the clothing as it was pulled up about them, the feet in the ground and the bloomers torn from the bodies, that the children were debauched either before or after death or may be both.” Prom an examination of the record we are satisfied that this offer of proof was made in good faith. Information was in the hands of the

[6] During the course of the trial the district attorney endeavored to prove that the defendant was guilty of misconduct with other girls in the neighborhood, particularly with one by the name of Merritt, concerning whose case the defendant had been arrested and had entered a plea of guilty. Most of the testimony with reference to that case was stricken from the record on motion of the defendant and the jury instructed to disregard the same. The only portion not stricken was the statement of the defendant to the witness Floyd that he could have extricated himself from the difficulty in the case involving the Martin girls if he had not entered a plea of guilty"in the Merritt ease. No objection -was made to that testimony and no motion was made to strike it out. Assuming that evidence with reference to the Merritt ease was inadmissible, and we are not called upon to rule on that question, the action of the district attorney in making the offer of proof was not in bad faith and the rulings of the trial court with reference thereto were all in favor of the defendant. Numerous other charges of misconduct were made against the district attorney during the course of the trial. They have been examined with care. We find nothing upon which just criticism may be based.

During the trial the witness Floyd was asked to relate his conversation with the defendant on August 11, 1925. The witness commenced his answer by stating that the defendant told him on that occasion about killing three men in Gotham, Texas. The answer was not completed and was interrupted by counsel for defendant, whose motion to strike it out was granted. There is nothing in the record to indicate that the district attorney could have anticipated what the answer would be and the portion that was given

[7] Prejudicial misconduct is charged against the trial judge. The trial was commenced on December 1, 1925, at 2 P. M. At the close of the day’s proceedings it was suggested by the district attorney that the jury be taken to the place where the bodies were found for the purpose of a view of the premises. Counsel for the defendant stated that there was no objection and arrangements were made for the defendant, court, counsel and jury to be taken out the following morning. When the court convened at 10 A. M. on December 2d, the court announced that the court would “go out and visit the premises where the killing is alleged to have taken place.” It is the contention of the defendant that the use of the word “killing” in the quoted statement of the court was prejudicial misconduct and he relies on the ease of People v. Orosco, 73 Cal. App. 580 [ 239 Pac. 82 ], wherein it was held in effect that the use of the word “murder” in the presence of the jury in the following question, “What is the use of taking up time with an episode that happened after the murder?” was misconduct on the part of the court. It was stated, however, in that case that said expression of the court taken alone would not require a reversal. It will be noted in the present case that the trial judge endeavored to safeguard his statement by the use of the word “alleged” but it is argued that he used it in the wrong place or not in the right connection. The criticism of the language as used would seem to be colorable but without substantial merit.

[8] Complaint is also made that the record does not show that Captain Hunter was sworn before taking charge of the jury for the purpose of viewing the premises. The defendant stipulated that Captain Hunter might act in that capacity, but assuming that the stipulation was insufficient to dispense with the oath no objection was made to the proceedings at the time and it is not made to appear that the defendant suffered the slightest prejudice by reason of the omission.

[9] After the conviction of the defendant and denial of his motion for a new trial his counsel gave oral notice of appeal and later on filed an application for an order for the preparation of the record on appeal, specifying therein the entire record, including the arguments of the district

[10] The defendant complains because he was charged in two counts with the crime of murder, was found guilty on each count and was sentenced to be hanged on each count. In the first count the defendant was charged with the murder of Nina Martin and in the second count with the murder of May Martin, all on the 23d day of August, 1924. The indictment was presented in conformity with section 954 of the Penal Code. No demurrer was filed or other objection made to the indictment in the trial court as provided in sections 1004 and 1185 of the Penal Code. The objection now urged therefore comes too late. (Pen. Code, sec. 1012; People v. Byron, 103 Cal. 675 [ 37 Pac. 754 ] ; People v. Ellenwood, 119 Cal. 166 [ 51 Pac. 553 ] ; People v. Dean, 66 Cal. App. 602 [ 226 Pac. 943 ].) We do not wish to intimate that the objection would have been well taken if seasonably made.

We find no error in the instructions given or in refusing instructions proposed by the defendant.

The record in this ease is singularly free from any ruling that might be claimed to be error. Doubts as to the admissibility of evidence were uniformly resolved in favor of the defendant and he received a fair and impartial trial. The jury was fully and fairly instructed and under the law its determination of the facts and of the penalty cannot be disturbed on the appeal.

The judgment and order are affirmed.

Waste, C. J., Richards, J., Seawell, J., Curtis, J., and Finlayson, J., concurred.

Rehearing denied.