People v. Billings

Near the hour of 2 P. M. on the afternoon of July 22, 1916, while a preparedness parade, formed for the purpose of displaying and developing the patriotic pride and spirit of the people of San Francisco, was passing at, or about, the intersection of Steuart and Market Streets in that city, an explosion occurred at that point which resulted in- the death of several persons and the wounding of two score more who were viewing the parade.

The defendant Billings and several other persons were subsequently jointly indicted and charged with the crime of murder. The defendant Billings was separately tried. He was convicted of the crime charged, and the penalty therefor, life imprisonment, was fixed by the jury.

After having reviewed the evidence adduced upon the whole case which was wholly circumstantial, we are constrained to say that the contention of counsel for the defendant that the evidence does not sustain the verdict and judgment is not well taken, for it is rested solely upon a discussion of the weight of the evidence.

The contradictions and inconsistencies, if any, existing in the proof proffered and received in support of the people’s case created no more than a conflict in the evidence and it was the peculiar province of the jury, when weighing the evidence, to reconcile such contradictions and inconsistencies with what they conscientiously believed to be the truth as developed by the evidence adduced upon the whole case.

It is the settled rule that the weight to be given to a conflict in the evidence—whether it appears in the case of the people or is made manifest by the proof proffered to support the defense—is a question to be determined in the first instance by the jury and, in the absence of a showing of its inherent improbability and utter incredibility, the determination of the jury is as matter of law conclusive upon this court. In other words, unless the evidence upon which a conviction rests appears to be so radically improbable as to amount to no

The argument of counsel for the defendant made to us upon this phase of the case is doubtless but a repetition of his argument made to the jury at the trial of the case, but needless to say the sufficiency of the evidence in the presence of a conflict therein to support the verdict may not be tested on appeal by the weight which the members of this court might have given to it had they been sitting as jurors on the trial of the case. Measured by the rule under consideration, we cannot say that the evidence does not support the verdict and judgment.

It was the theory of the prosecution that the explosion which caused the death of the deceased person for whose murder the defendant was being tried resulted from the discharge by a clock device of a shrapnel dynamite bomb which, concealed and carried in a suitcase, was deposited by the defendant Billings on the sidewalk at the place of, and shortly before, the explosion. Two ball-bearings of the kind used in automobiles and handfuls of loaded cartridges of varying calibers were picked up by bystanders immediately after the explosion and bullets of varying caliber were found in the bodies of several victims of the explosion.

As circumstances tending to show the defendant’s connection with the construction of the bomb, the prosecution offered, and the trial court permitted in evidence, proof of the following facts: That a pistol loaded with certain caliber cartridges and a large quantity of loose loaded cartridges of varying caliber, many of which corresponded in caliber with the bullets found in the bodies of the victims of the explosion, together with two automobile ball-bearings, differing, however, in size from those found at the scene of the explosion, were discovered in the room of the defendant shortly after he was arrested.

The objection made to this evidence, seems to us, was directed merely against its weight. The relevancy of proffered proof in a criminal case depends upon whether or not it tends to sustain a legitimate hypothesis of the guilt of the defendant, and, generally speaking, an incidental fact is relative to the main fact in issue when in accord with the ordinary course of events and common experience the existence of the incidental fact, standing alone or when considered in connection with other established facts, tends in some degree to make the main fact in issue certain. It is not necessary that such inei

The fact that the cartridges found in the room of the defendant after the commission of the crime were of the same character and caliber of those found in the bodies of the victims of the explosion was admissible, as tending in a measure to show that the defendant had the means at hand to commit the crime charged against him in the manner and by the means which it was shown were employed to commit the crime. (1 Michie on Homicide, pp. 851, 855, 857, 859; 21 Cyc. 945.)

While it is true that no ball-bearings were found in the bodies of the victims of the explosion, nevertheless, the ball-bearings admitted in evidence were found, immediately after the explosion, in the midst of other things which, when considered in connection with all of the circumstances shown in evidence concerning the character of the explosion and its effects, apparently constituted a part of the bomb and were therefore admissible as tending in some degree to show what were the constituent elements of the bomb. In this connection it may be noted that “the tendency of modern decisions is to admit any evidence which may have a tendency to illustrate or throw any light on the transaction in controversy or give any weight in determining the issue, leaving the strength of such testimony or the amount of such weight to be determined by the jury.” (Moody v. Peirano, 4 Cal. App. 411 , [ 88 Pac. 380 ].)

The presence in evidence of the pistol found in the defendant’s room came in as a mere incident to the testimony, which showed the result of the search of defendant’s room, and, conceding that it was improperly admitted in evidence, we cannot conceive how it could have prejudiced the defendant.

Counsel for the defendant" has not directed our attention to any particular portion of the record in support of his contention that the defendant, when testifying as a witness in his own behalf, was prevented by objection or otherwise from giving an account of the movements of his codefendants on the day of the explosion. Ordinarily this would suffice to warrant us in ignoring the contention, but it may not be amiss to say that an independent investigation of the record discloses no basis for the contention, nor for the further contention that the trial court erred in refusing to permit the defendant to show all of the facts and circumstances connected with the meeting of the defendant and his codefendant, Mooney, which a witness for the prosecution testified occurred some three . days prior to the explosion.

Complaint is made of the cross-examination of Mrs. Belle Hammerberg, a witness for the defense, whose testimony in substance was that the codefendants Thomas Mooney and his wife, Mrs. Rena Mooney, were on the roof of a building situated a considerable distance from the scene of the explosion during the entire afternoon of the day of the preparedness

Conceding it to be the general rule that when the interest of a witness in the result of a case is developed or admitted, as was done in the present case, the cross-examination cannot be legitimately continued for the purpose of showing the motive for such interest, nevertheless we are not prepared to say that the facts developed upon such cross-examination resulted in prejudice to the defendant, for it will be noted that the district attorney failed in his avowed purpose to show that the witness had concealed the papers referred to, and further, that neither the character of, nor the contents of, those papers were disclosed by the cross-examination. In fact, the only hint of the character of their contents is to be found in the admission of counsel for the defendant made during the course of an argument upon an objection to the cross-examination that they related “to certain matters of correspondence affecting the car strike.” Conceding that this admission was provoked by the exigencies of the situation, nevertheless neither it nor the cross-examination itself revealed the particular car strike referred to nor the details of the correspondence. It will thus be seen that the cross-examination complained of resulted in showing nothing beyond the fact that the witness was perhaps biased in favor of the defense, which fact was admitted by her and by counsel for the defendant, and, consequently, it cannot be said that the error of the ruling permitting such cross-examination resulted in any prejudice to the defendant.

Counsel for the defendant complains of and devotes a page of his brief to the alleged refusal of the trial court to give a certain requested instruction to the jury, but the record does not show that the instruction in question was not given. Moreover, the subject matter of the requested instruction was sufficiently covered in the charge of the court.

During the course of its charge the trial court instructed the jury to the effect that even though the jury should find that some person other than the defendant had feloniously placed the bomb at the scene of the explosion which resulted in the killing of the deceased, but further found that the defendant willfully and unlawfully aided and abetted such person and assisted him to obtain, manufacture, or explode said bomb, then the defendant Billings was a principal in the commission of the crime.

This instruction is assailed and asserted to be erroneous upon the ground that it did not limit, nor attempt to limit, the jury to a finding that the defendant personally performed the physical act of depositing the bomb at the place where the crime was committed. This contention is made and based upon the theory that the jury should have been so limited because the trial court had previously instructed them to the effect that it was the theory of the prosecution that a bomb was deposited by the defendant Billings at the place and with the intent and purpose charged in the indictment, and, because of this, it is argued that the defendant could not be found guilty in the absence of evidence warranting a finding that he

These instructions, in our opinion, were pertinent to the evidence adduced upon the whole case which warranted the jury in its finding, implied from the verdict, that the defendant either personally placed the bomb at the scene of the explosion or aided and abetted the person who did. In this view of the evidence the instructions immediately under consideration were not antagonistic to and destructive of one another, for it is the law that “all persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission, . . . are principals in any crime so committed.” (Pen. Code, secs. 31, 971.)

With reference to those portions of the argument of the district attorney to the jury which were protested and assigned in the court below as misconduct, coupled with a request for an appropriate admonition to the jury, the record shows that the first assignment related in part to statements of the district attorney which upon their face purport to be his deductions, made apparently in good faith from the evidence adduced at the trial. This was legitimate argument, and could not properly be made the basis of an assignment of misconduct.

The remaining portions of the district attorney’s argument covered by the first assignment of misconduct relate to his assertion that “the reason why they [the defense] objected to us showing the particular felony he [the defendant] has been convicted of is obvious.” The record, however, does not show that this statement was assigned as misconduct in the court below, and, therefore, the misconduct, if any, might well be deemed to have been waived. But, assuming that there was no waiver and conceding the impropriety of the argument in the particular stated, it is difficult to conceive how the defendant could be prejudiced thereby in the face of the fact admitted by the defendant, while testifying as a witness in his own behalf, to the effect that he had suffered a felonious conviction in this state for carrying explosives.

The second assignment of misconduct has reference to the fact that the district attorney, in his argument, asserted in effect that the defendant, while testifying, laughed like a

Complaint is made of the failure of the trial court upon request to admonish the jury to disregard statements made by the district attorney when making an offer to prove by a witness present in the courtroom that the defendant had said that he was skilled in the making of bombs and had thrown them for hire. The objection to this offer was sustained, and, without regard to whether or not the proffered proof was relevant and competent, the district attorney was privileged, in good faith, to state what he expected to prove. In so far as the record shows, the offer in question was not made in bad faith, and it not appearing that the district attorney was guilty of pernicious and persistent misconduct throughout the trial of the case, we are of the opinion that the request for an admonition to the jury to disregard any suggestions contained in the offer was sufficiently complied with in the charge of the court, which, in part, instructed the jury that under their oaths they were “to take into consideration only such evidence as had been admitted by the court, and . . . disregard and discard . . . every impression or idea suggested by questions asked by counsel which were objected to and to which objections were sustained.”

It is insisted.that the trial court erred in denying the defendant’s motion for a new trial grounded, in part, upon al

Concluding this discussion of each and every point made in support of the appeal, we are constrained to say that a perusal of the record before us which contains the argument of counsel for defendant compels the conclusion that the defendant was accorded a fair trial before a fair judge and a fair jury, and this conclusion is confirmed by the concession of counsel for the defendant made in his closing argument to the jury wherein he said: “We have had a fair trial—‘We’ve had our trial, and must needs say a noble one.’ We’ve had our trial and we proclaim to the world that it has been a fair and noble one. This jury was impaneled by a member of the district attorney’s staff with absolute fairness and impartiality—a man who asked only what we asked, and only what we ask now— justice!”

The judgment and order denying a new trial are affirmed.

A petition for a rehearing of this cause was denied by the district court of appeal on October 2, 1917, and the following opinion then rendered thereon:

In their petition for rehearing of this cause appellant’s counsel repeat their arguments considered and passed upon in the opinion delivered in this case. Their petition in this respect presents nothing new. The propositions which they re-advance were given careful consideration, and this court sees no reason to change the views which it has expressed upon them.

Concerning two matters, however, the petition makes a complaint which calls for response. The first of these is that appellant has contended that there is a “ complete insufficiency of the evidence, admitting its entire truth for the purpose of the argument, to sustain a verdict of guilty of murder.” It is said that this contention requires of this court something more than a declaration that the evidence is sufficient—it de

The prosecution introduced evidence showing that a high explosive concealed in a suitcase was, on the occasion of the preparedness parade in San Francisco, placed against a building at the southwest comer of Steuart and Market Streets, about twenty feet from the corner of Market. The junction of Market and Steuart Streets is near the ferry building, at the foot of Market Street. On Steuart Street and other similar connecting streets at the lower end of Market Street the units of the parade were to form and enter the parade, which was programed to proceed out Market Street. Such a unit of the parade was standing on Steuart Street. The sidewalks were crowded with innocent spectators. This infernal machine was so constructed that by a clock-work device it would explode at a given time. The time when this explosion actually took place was six minutes after 2 P. M. The force of the explosion was terrific. Men were blown from their horses and people ‘ ‘ fell to the ground like matches. ’ ’ Nine or ten people lost their lives. Nearly fifty others were mutilated and mangled. The devilish ingenuity which constructed this infernal machine did not rest content with placing in it the explosive alone. It was filled with pistol cartridges, with pieces of iron pipe and with steel balls like unto the ball-bearings of automobiles. From the.debris of the explosion and from the bodies of the dead and wounded many of these articles were discovered and introduced in evidence. So, also, were introduced in evidence bits of brown papier-mache from which cheap suitcases are made, and, in the language of appellant’s counsel, “some clasps or locks or other things affecting the suitcase.” That this destruction of life and property was criminally caused by the criminal means indicated, the evidence leaves in not the slightest doubt.

The crime having thus been established, the next inquiry is, Does the evidence sufficiently connect this defendant with the crime as the perpetrator, or one of the perpetrators thereof? The fact that the suitcase which exploded was placed by this defendant does not rest upon circumstantial evidence alone. A witness testifies directly to having seen the defendant with the suitcase in his hand at about ten minutes before 2 o’clock at Steuart and Market Streets. The defendant was looking

When the defendant was arrested his room was searched and in his room was found a can of bullets and pistol cartridges like those placed in the infernal machine. Automobile ball-bearings were also found in his room. The defendant admitted that this can and its contents were his property, and said that he “used them when it was thought necessary.” Asked where he bought them, he said he did not remember.

More than this, it was proved that the defendant had. suffered conviction and imprisonment in the courts of California for a felony of similar character, though resulting in no such direful consequences as the felony for which he was here put upon trial. He was convicted of carrying high explosives on a street-ear and suffered imprisonment for two years in the state penitentiary at Folsom. Further, it was shown that he had dynamite in his possession in the city of Sacramento, and after his arrest, when asked about it, said that he -would not talk until he had seen his attorney. And, finally, the defense amounted to this: The defendant offered his own unsupported declaration against the testimony of all of these witnesses, that he never had a suitcase in his possession upon the day of the parade, and also his own unsupported declaration as against the testimony of these witnesses, that he was neither at nor in the neighborhood of 721 Market Street, nor at nor in the neighborhood of Market and Steuart Streets upon that day. He gives an account of his rambles about, the city from about 1:15 P. M., when he left his lodging-house, till about 3 P. M., when he entered a jitney, but during all that intervening time there is not one witness who testifies that he saw the defendant where the defendant says he was, so that the alibi, as against the positive and direct statement of disinterested witnesses, rests wholly upon the testimony of' the defendant alone. To sum up, then, we agree with appellant’s counsel in their first judgment on the case when they “proclaimed to the world” that the trial “had been a fair and noble one,” and we wholly agree with the declaration of the learned attorney-general that “the evidence overwhelmingly establishes the guilt of the defendant.”

The second proposition which appellant’s counsel urge upon our attention as having been omitted from the consideration of the case in the opinion handed down is, to quote their own

The evidence adduced upon behalf of the people, having been accepted as the truth by a jury impaneled, as counsel for the appellant concedes, “with absolute fairness and impartiality,” was sufficient in itself to support the verdict.

The petition for a rehearing is denied.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on November 5,1917.