People v. Brady

The defendant, Thomas Brady, was convicted of an assault with intent to commit rape upon the person of one Jean Stanley. He has appealed from the judgment of conviction and from the order denying his motion for a new trial.

On the night of November 25', 1920, the prosecutrix, Jean Stanley, and a companion, Jessie Montgomery, were persuaded to enter a house at No. 1256% Howard Street, San Francisco, where they were subjected to most brutal treatment and vile indignity. As a result of those outrages, four men were separately tried and convicted, and their eon

It was held on those appeals that the evidence established a conspiracy, on the part of those involved, to engage in acts of sexual intercourse with these young women either with or without their consent, and that, therefore, each conspirator was deemed guilty of every such crime committed in the furtherance of the conspiracy by any of the conspirators. The opinions rendered in the Murphy, MacDonald, and Kruvosky cases, supra, set forth quite fully the circumstances attending the commission of the various crimes, and for that reason it will not be necessary to again review the evidence here. It is revealed by the record in this case that all of the brutal treatment indicted upon these young women and the immoral practices to which they were subjected were actually committed by Murphy, Kruvosky, and MacDonald, and by a man named Boyd. Murphy and Kruvosky were prizefighters. Carey was convicted upon evidence showing that he was a party to the conspiracy, and that it was he who was primarily responsible for the presence of the young women in the house that night, and because, further, it was proved by the testimony of the Montgomery girl that after she had been rendered helpless by the other men Carey committed an act of sexual intercourse with her.

Brady was prosecuted upon a different theory. There is no claim made by the prosecution that he made an assault of any kind1 upon the prosecutrix. His conviction was sought and obtained upon the theory that he was a party to the conspiracy to ravish these young women, and that he did, in fact, aid, abet, and encourage the other conspirators in the numerous assaults made by them upon the prosecutrix. Brady was first charged with and tried for an alleged rape upon the Montgomery girl. The jury acquitted him. He was then charged with an assault with intent to commit rape upon the Stanley girl, and the jury disagreed. Upon a second trial he was convicted.

[1] Several points are urged by the defendant on this appeal, but we shall address ourselves only to the vital one

The essential features upon which the conviction of Brady was obtained were that he was a party to the whispered conversation in the Stroller’s Cafe, which conversation was afterward held on appeal in the other cases to be the foundation of the conspiracy; that he assisted that night in forcing the Montgomery girl to drink liquor; that he encouraged the young women victims to enter the Howard Street house, and afterward actually aided in separating them so that they might be separately attacked; that he refused to assist them when they were being cruelly beaten by Murphy and Kruvosky, and that instead of going to their assistance he stood there and “only laughed” at them.

All of these facts were established by the testimony of the two young women. The Stanley girl testified, however, that Brady made no indecent proposal to her that night, and there is no evidence to the effect that while efforts were being made by the other men to violate her that Brady knew anything about it. She further testified that after she had been struck by Kruvosky and Murphy while in the kitchen, in the presence of Brady, she was taken to another room by Carey and MacDonald, and that she did not afterward see Brady that" night. It was subsequent to that time that all of the unsuccessful attacks were made to violate her by Murphy, Boyd, Kruvosky, and MacDonald, and which now constitute the crime of an assault with intent to commit rape for which Brady was convicted.

The evidence shows without conflict that when Jean Stanley ran to the kitchen for the purpose of assisting the Montgomery girl and was struck by Kruvosky and by Murphy and then taken into an adjoining room by Carey, that the latter left shortly afterward and was not again seen by the Stanley girl that night. . The only testimony tending to prove that either Brady or Carey remained upon the premises after the Stanley girl was taken into the adjoining room was that given by the Montgomery girl, who testified that later, when she found herself lying nude on the mattress in the front room, Brady was there with the others, and at that time had sexual intercourse with her. But bearing upon that testimony it should be stated that Brady was tried for rape on that charge and was acquitted. The Montgomery girl also testified that Carey looked in and said, “The cops are coming!” There was also the testimony o£ Jean Stanley to the effect that when she made her escape from the house that night there was a machine standing in front of the house that looked like Carey’s machine.

Prom the evidence above narrated it will be seen that so far as Brady is concerned the record shows a sharp conflict between his testimony and that given by the two young women. The jury doubtless accepted the stories of the young women and rendered its verdict accordingly. That being so, it is plain that if the trial court erroneously excluded any evidence which may have tended to discredit either of the young women as witnesses it was prejudicial to the rights of this defendant, because it would follow as a natural sequence that if testimony of the young women was shown to be willfully false on any material point the jury would then have had the right to reject the entire testimony of such witnesses and its verdict may have been different.

This brings us to the ruling of the trial court curtailing the cross-examination of the prosecutrix, Jean Stanley, but in order to fully understand and discuss the point it will be necessary to advert first to a phase of the case which developed on the hearing of the motion for a new trial. The first trial of Brady on this charge, which, as before stated, resulted in a disagreement of the jury, ended on

Mrs. O’Connor also testified at said hearing that she immediately notified Captain Matheson, her superior officer, and the trial judge of what the Stanley girl had said, and that Captain Matheson had notified the district attorney’s office, who immediately sent a representative to

Now, reverting back to the last trial of Brady, and after Jean Stanley had been fully examined and cross-examined as a witness for the prosecution in its ease in chief, but before the prosecution had rested its case, the trial judge, doubtless having in mind the information imparted to him by Mrs. O’Connor, asked that Miss Stanley be recalled as a witness and he then questioned the witness as follows:

“The Court: Q. Miss Stanley, in the testimony that you have given is there anything that you can think of that would be of benefit to this defendant that you have kept back? A. No, sir.

“Q. Is there anything that you have kept back that would be of benefit to the people? A. No, sir.

“Q. Have you told the whole truth about the matter, Miss Stanley? A. Why shouldn’t I?

“Q. But have you? A. Why, certainly.

“Q. Is there anything that you can think of now that you have been mistaken about? A. No, sir.

“Q. Nothing that you want to correct? A. Not a thing.

“Q. Has anyone told you to make any statements in this case that was untrue? A. No, sir.

“The Court: That is all. Thank you.”

Bearing in mind the expression of confidence by the trial judge in the truthfulness of Mrs. O’Connor, it must have occurred to him at the time the witness was giving this testimony that she was not telling the truth. Nevertheless he took no further steps to ascertain the truth or to lay before the jury the knowledge he then possessed in reference to

“Mr. Herron: Just to refresh your recollection, was not this conversation in substance—

“The Court: Have you laid the foundation?

“Mr. Herron: Yes, the persons present, the time, and the place.

“Mr. Riley: And got the answer, that she doesn’t remember the conversation.

“Mr. Herron: Well, I can go a little further.

“The Court: You cannot.

“Mr. Herron: And refresh her recollection.

“Mr. Herron: I will reframe the question.

“The Court: You submit to me in writing the question you want to ask.

“Mr. Herron: May we let the witness step down, and may I ask—

“The Court: Yes, you may interview the witness off the stand, but you submit that question to me in Avriting. Step down, Miss Stanley.

“(The Avitness is thereupon excused) . . . (Counsel there.upon drafts question.)

“Mr. Herron: Do you want to see the question, Mr. Riley, before I pass it up to His Honor % (Handing draft to

counsel, who thereupon reads the same.) And I might also say, your Honor, that this question will be asked in the highest good faith and I believe I am prepared to prove that the statement was made. (Handing draft referred to to the court.)

“The Court: Let the record show a piece of paper, handed to the court and which was submitted to the district attorney, is handed to the reporter, and he is directed to make it a part of the record.

“Mr. Riley: And we object—

‘ ‘ The Court: That question will not be propounded in the presence of the jury— The objection, Mr. Riley?

“Mr. Riley: On the ground that it is incompetent, irrelevant, and immaterial, not proper cross-examination, not proper reeross-examination, and in any event would call for the opinion and conclusion of the witness, and in nowise binding upon the people.

“The Court: Sustained. (Thereupon handing draft referred to to the reporter. The question referred to and ordered made a part of the record is in words as follows: ‘Did you not say at that time and place that you hoped that Brady would be acquitted because he was innocent?’) ”

[2] The trial of every person charged with felony must take place in the presence of the jury. The jury is a coordinate part of the court. The purpose of the examination of the witness is to elicit the facts and the jury are the exclusive judges of those facts. There is no law requiring a defendant to propound his questions out of the hearing of the jury, but passing over this unwarranted direction of the court and taking up the matter of the propriety of the excluded question itself, it is clear to us that the question was a proper one and should have been put to and answered by the witness. It is too well established to admit of argument that before a witness may be impeached on account of having made contradictory statements, the attention of the witness, in all fairness to the witness, must not only be called to the time and place, and the persons, in the presence of whom, the contradictory statement is claimed to have been made, but the statement itself must be related to the witness so that full opportunity may be given the witness to admit or deny making such statement. Here the court allowed the defendant to call the attention of the witness

On the other hand, if the witness had denied making the statement, the defendant would then have been in a position to contradict her by placing on the stand the other parties to the conversation, including Mrs. O’Connor, and the jury would then have been called upon to say which of them was telling the truth. It is only a fair inference to indúlge in that if Mrs. O’Connor had been called to contradict the prosecutrix the whole mass of contradictory statements, which Mrs. O’Connor claims were made to her on the night of December 24, 1920, and of which the trial judge had full knowledge at the time of the examination

[3] Moreover, the effect of the limitations placed upon the cross-examination of the prosecutrix appears to be all the more prejudicial to the rights of this defendant in view of the knowledge of the contradictory statements imparted to the trial judge by Mrs. 0 ’Connor. We are not to be understood as stating it as the law that, when a trial judge hears public rumors or reads statements in public journals or learns through the medium of anonymous letters or the like that a witness in a criminal case has testified falsely, that he should take any cognizance of it. But, where, as in this case, a defendant is charged with a dastardly offense not because it is claimed he directly committed it but because of his association with those who did commit it, and the trial judge learns from a source he firmly believes to be reliable, in this case from a sworn officer of the law and of the court, in whose keeping the court had intrusted the protection of these girl victims, and in whose veracity the court had unlimited faith, that the chief witness for the prosecution has admitted that she lied in material parts of her testimony, it was his duty, in our opinion, in the interest of justice and of fair dealing with the defendant, to have gone into the cross-examination of the witness thoroughly, since he recalled the witness at all,

In conclusion, it may be stated that this was the fifth defendant and the seventh trial, on charges growing out of this moral outrage, to be brought before the trial judge who presided here. The evidence of the brutality and indignity visited upon these girls by Murphy, Kruvosky, MacDonald, and Boyd were such as to shock the sensibilities of the judge and of the community. Under such strained circumstances it is only consistent with human feelings that there should be a sincere desire to promptly and adequately impose the law’s penalties upon those who have been the law’s violators, but, even under those circumstances, the constitutional right of the accused to a fair and impartial trial is no different than in any other case, and where, as seems to be the situation here, public sentiment has been righteously aroused and there is an apparent inclination to condemn all persons connected with the affair before they have been tried, the courts should exercise the utmost care in seeing to it that the accused is accorded the full measure of his constitutional rights and that every opportunity recognized by the law is given him to prove his innocence.

In view of what has been said it is our opinion that the judgment and the order appealed from should be reversed, and it is so ordered.

Kerrigan, J., and Tyler, P. J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on April 8, 1922, and 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 May 8, 1922.

All the Justices concurred.

Waste, J., was absent and Richards, J., pro tem., was acting.