People v. Waller

The district attorney of Los Angeles County filed an information charging the defendant Leo Waller in separate counts with the murder of Presley B. Stewart, and with having committed an assault with intent to commit murder upon the person of Dan Preston. It was also charged therein that said defendant had been previously convicted of burglary, for which he had served a term of imprisonment in the State of Illinois. He entered a plea of not guilty to the charge made in each count and admitted the prior conviction. The trial took place before a jury, and verdicts of guilty were returned against him on both counts. As to the first, the jury found by its verdict that the crime committed was murder of the first degree, and made no recommendation as to punishment. Therefore the verdict called for the imposition of the death penalty. A motion for new trial was made and denied, and following the pronouncement of sentence in accordance with the verdicts of the jury, the cause was brought before this court on an automatic appeal from the judgment of conviction on the first count and from the order denying the motion for new trial thereon.

It appears from the record without any dispute that Stewart was fatally shot and that Preston was beaten and shot shortly after 1 o’clock on Sunday morning, March 20, 1938, and that the shooting took place in “The Bee Hive Cafe” on East Whittier Boulevard in Los Angeles; and it was claimed by the prosecution that both crimes were committed during the perpetration or attempt to perpetrate a robbery therein by several persons, including the defendant. Those accused besides defendant were John Robles, Harry Groves, George Braun, and Mrs. Ann Groves, the wife of Harry Groves. A few days after the shooting Braun and Mrs. Groves surrendered to the police in San Diego, and shortly afterwards Robles and Groves were captured in Kansas City, Missouri. They were all returned to Los Angeles, charged jointly with the commission of said crimes, and placed on trial before a jury. After the trial started Robles withdrew his plea of not guilty to the charge of murder, pleaded guilty thereto, and was subsequently sentenced to life imprisonment. Mrs. Groves was acquitted, and the remaining two were found guilty, the jury having declared by its verdict that it was murder of the first degree, and life

In furtherance of his appeal his counsel has filed briefs wherein the several grounds urged for reversal are fully and ably presented and discussed. They all relate to the question of the sufficiency of the evidence, the substance of the major contentions made in this behalf being, first, that the evidence is legally insufficient to support the implied finding of the jury that the alleged crimes were committed during the perpetration or attempted perpetration of a robbery; and secondly, that in any event it is insufficient, to establish the fact that the defendant herein was in the cafe at the time of the alleged commission of the crimes, or if present that he participated therein or was a party thereto. After a careful examination of the record we are unable to agree with either of the contentions so made.

The shooting of Stewart and Preston took place, as stated, shortly after 1 o’clock on Sunday morning. A few minutes before the shooting occurred a group of three men entered the cafe, walked to the bar and ordered drinks. The cafe at the time was filled with forty or more patrons, a large number of whom were sitting on stools or standing in front of the bar; others were seated at tables, and some were playing mechanical devices and musical instruments. Among the patrons present were Braun and Mrs. Groves. They had entered the cafe together several minutes before the group of three men appeared therein. The bar ran lengthwise of the cafe, and drinks were being served over the bar by two bartenders. One of them was an employee named Donahue, and the other was Stewart, the proprietor. Donahue waited on patrons at the end of the bar nearest the front door, and Stewart was stationed at the farther end. Donahue served the three men with drinks, and one of them intentionally or accidentally broke his glass on the bar, which caused a slight commotion; whereupon Donahue served him with another drink; meanwhile one of the men moved farther down along

Clearly the foregoing facts are legally sufficient to support the conclusion reached by the jury that Stewart was murdered and Preston assaulted during the perpetration or attempt to perpetrate a robbery. Counsel for defendant points out that there is no direct evidence showing that any one of the group took the money from the cash register; but in this regard the testimony shows that. Donahue counted the cash in the register when he went on duty that evening; that

The evidence establishing defendant’s participation in the crimes was both direct and circumstantial. The direct evidence consisted of testimony given by Mrs. Groves and Rohrscheib, bearing upon the identification of the defendant as the man with whom Rohrscheib was grappling in resisting the attempt to rob him. The identification of him by Mrs. Groves was made in positive terms. The circumstances relating thereto, as they are shown by her testimony, were these: For nearly a week immediately prior to the commission of the crimes Mrs. Groves, her husband, and the defendant lived together in the Commander Apartments on Ingraham Street in Los Angeles; and all three were well acquainted with Robles. Mrs. Groves had known him many years; and on the day preceding the shooting he was visiting the Groves and the defendant at their apartment. That afternoon all four began drinking, and they continued to drink during the evening. About 10 o’clock that night they visited the home of a Mrs. Martinson in the neighborhood. Braun was there also, and more liquor was consumed. While there Mrs. Groves undertook to teach the defendant to dance, and their actions angered Groves. A quarrel ensued between Groves and his wife, and he struck her. Thereupon, she left the place in company with Braun, and after driving about for a while in Braun’s automobile, visiting several cocktail bars, they went to the Bee Hive. They arrived there some time after 12:30, and after they had been there for some little time Mrs. Groves heard someone near the bar say, “This is a stick-up”. She looked around and saw her husband and Robles. Instantly the shooting began, and several shots were fired. Dur

Eohrscheib’s identification was that while he would not say positively that the defendant was the man who attempted to rob him, that he “looked like him”,—that he “resembled him”; and in this connection he was asked this question: “Calling your attention to the defendant, Waller, you think now that the man that you saw there is similar or looks like Mr. Waller, is that right?” and he answered “yes”. The fact, however, that he was not positive does not destroy the value of the identification. As said in People v. Wilson, 76 Cal. App. 688 , at page 700 [ 245 Pac. 781 ], it is not necessary that the identification be made in positive terms by any of the witnesses. And continuing, the court goes on to say: “A conviction may be sustained though the witnesses decline to swear positively, and testify merely that they believe the accused is the person whom they saw commit the crime. Thus in Commonwealth v. Cunningham, 104 Mass. 545 , the witnesses would not swear that the prisoner was the man they saw on the stolen wagon, but that ‘he resembled him’. There the court said: ‘Upon this question of identity, the evidence offered was all of it competent and proper for the consideration of the jury. It is impossible to say that it had no tendency

Other important facts and circumstances disclosed by the testimony of Mrs. Groves tending to connect the defendant with the commission of the crimes were the following: As soon as the turmoil in the cafe resulting from the shooting had quieted down, she and Braun left together, and after driving first to Fourth Street where they stopped in the street for a few minutes, they continued on to the Groves apartment on Ingraham Street. There they found Groves, Robles and the defendant, and after a short discussion among them they decided that all should leave the state; thereupon, about an hour after the shooting, they entered two automobiles and drove first to Cross Roads, California, and thence to Phoenix, Arizona. One of the cars, a Pontiac, was driven by Groves, and he was accompanied by Mrs. Groves and Robles. The other, a Plymouth, was driven by defendant, and Braun rode with him. All remained in Phoenix for a day or two, and then decided to separate. Braun and Mrs. Groves turned back toward California, and eventually reached San Diego, where they decided to surrender to the police. The Pontiac car, it appears, had been stolen in Los Angeles several days prior to the homicide, not, however, by the defendant; and some time during Sunday, the day of the homicide, the license plates of the car were found in Mrs. Martinson’s yard.

The evidence further shows that following defendant’s arrest in Illinois he made a statement to the officers wherein he said that he left California the day after the Bee Hive robbery; that upon arriving in Arizona he read in the newspaper about the robbery and the murder. Continuing, he stated that after the five of them had stayed in Phoenix for

Finally, it may be stated that when the prosecution rested its ease the defendant offered no evidence, nor did he take the witness-stand in his own behalf. As declared by section 13 of article I of the state Constitution, “ ... in any criminal case, whether the defendant testifies or not, his failure to explain or to deny by his testimony any evidence or facts in the ease against him may be commented upon by the court and by counsel, and may be considered by the court or the jury.”

The contention is made that Mrs. Groves was an accomplice in the commission of the crimes, and that such being the case her testimnoy has not been sufficiently corroborated to meet the requirements of the law. It is evident, however, that there is no evidence to justify the conclusion that she was an accomplice. As already shown, the jury at the other trial by its verdict of acquittal declared that she was not an accomplice, and there is nothing in the present record to establish that she was. Quite to the contrary, it appears therefrom that she had no reason to suspect that the robbery was

Such being the evidence and the state of the record, we are without legal authority to interfere with the verdict of the jury; for as shown, the evidence is legally sufficient to establish that Stewart was murdered during the perpetration or attempt to perpetrate a robbery, and that the defendant was one of the group who participated in the robbery. True, there is no evidence showing that defendant shot either Stewart or Preston; nor in fact does it show that at the time of the robbery he was armed. It is well established, however, that if a homicide is committed by one of several confederates while engaged in perpetrating the crime of robbery in furtherance of a common purpose, the person or persons engaged with him in the perpetration of the robbery but who did not actually do the killing, are as accountable to the law as though their own hands had intentionally fired the fatal shot or given the fatal blow, and such killing is murder of the first degree. The jury has no option but to return a verdict of murder of the first degree whether the killing was intentionally or accidentally done, and it is proper so to instruct the jury. (People v. Perry, 195 Cal. 623 , 638 [ 234 Pac. 890 ]; People v. Boss, 210 Cal. 245 [ 290 Pac. 881 ] ; People v. Raber, 168 Cal. 316 [ 143 Pac. 317 ] ; People v. Lawrence, 143 Cal. 148 [ 76 Pac. 893 , 68 L. R. A. 193 ] ; People v. Olsen, 80 Cal. 122 [ 22 Pac. 125 ] ; People v. Denman, 179 Cal. 497 [ 177 Pac. 461 ].)

And having found the defendant guilty of first degree murder the matter of the penalty was entirely within the discretion of the jury. (People v. French, 12 Cal. (2d) 720 , 775 [ 87 Pac. (2d) 1014 ].) The jury was properly instructed as to its power to relieve the defendant from the extreme penalty of the law if in the exercise of its discretion the facts and circumstances so warranted; and since it failed to do so, it is beyond the power of this court to interfere therewith on appeal. (People v. Boss, supra.)

What has been said in determining the merits of the appeal from the conviction of murder applies with equal force to the conviction on the second count. The additional point urged with respect thereto is that there is no evidence showing an intent to kill. But obviously, in view of the un

The judgments of conviction and the orders denying the ■ motion for new trial are, and each of them is affirmed.

Shenk, J., Curtis, J., Edmonds, J., Spence, J., pro tem., and Houser, J., concurred.

Rehearing denied.