People v. Wilson

By information the defendant was charged with the crime of murder in that on the ninth day of April, 1922, he did kill and murder one Herbert Cox. He was found guilty of murder in the first degree and sentenced to imprisonment for life. He has appealed from the judgment and from an order denying his motion for a new trial.

Departments seventeen and eighteen of the superior court of Los Angeles County are located on the second floor of a building known 'as the Hall of Justice. The county jail and the Hall of Justice are separated by an alley twenty feet wide. For convenience in conveying prisoners between

[1] Appellant contends that the evidence is insufficient to establish the corpus delicti; that is, to show that the deceased came to his death as a result of criminal agency as distinguished from suicide or accident. Appellant further contends that the evidence is insufficient to warrant or sustain his conviction.

For the purposes of the present discussion we shall assume with counsel for appellant that the evidence of motive of the defendant, which might have led him to attack the deceased, does not form any part of the proof of the corpus delicti; also that there was testimony of sundry witnesses that Cox had made statements to them, variously, to the effect that a man is better off dead than in jail; or that he was going to have his liberty or die; or that if he did not succeed in escaping, he would kill himself. The other incidental questions under this head relate to the nature of the wound and the possession of the gun with which, as the evidence strongly tends to prove, the wound was inflicted.

The circumstances in evidence are such that if Cox did not kill himself, it becomes probable that he was murdered by another. There was no opportunity for a chance shot from the outside. On this branch of the case the principal contention of appellant, therefore, is that the evidence is no.t sufficient to prove that Cox did not commit suicide.

A few days prior to April 9th arrangements were made by Cox with a turnkey that for the sum of one thousand dollars, to be paid to the turnkey, the door leading from the jail into the bridge would be left unlocked. On the

We will now consider the evidence of the nature of the wound as related to the question of suicide. The autopsy surgeon stated that the bullet entered the left side of the chest about two inches above the nipple, about four inches from the midline in front. It passed horizontally backward and slightly inward, penetrating the third rib, both lobes of the left lung, and passed out of the back through the sixth rib at a point about two inches from the midline of the back. The entrance wound showed a very narrow margin of burned powder and a few punctate powder marks around the wound. The embalmer testified that around the wound he saw a small ring of powder burns. This ring made a complete circle around the wound. The pistol, or “gun,” with which under the evidence the shooting must have been done, was found on the floor near the body of Cox. The

The evidence of these facts, if believed by the jury, was sufficient to warrant the jury in believing that the fatal shot was not fired by Cox. This evidence tended to prove that in shooting he would not have used the left hand; that if he had been shooting with that pistol at that time with the right hand, he could not have pressed the trigger with the thumb of that hand, and that it would be extremely difficult for a man, with his right hand, to have fired that weapon so that the bullet entering his breast where this bullet actually did, would range inward horizontally and come out two inches nearer the center line of the back. It is our conclusion that the evidence is sufficient to establish the carpus delicti,

[2] Appellant next contends that the evidence is insufficient to sustain the conviction. There is testimony to the effect that in November, 1921, Wilson had been informed by officers, in the presence of Cox, that Cox had accused Wilson “of the postoffice robbery, the Hale store robbery, and other jobs.” There is also testimony that after the “muffled shot” had been heard, and when the officers looked down the stairway, there was no one on the bridge with Cox, except Wilson, who was leaning over Cox. Manning testified that at that time Wilson was choking Cox—or, as the same witness had said at the coroner’s inquest, “seemed

On behalf of appellant it is argued that the testimony of Hornbuckle was impeached in various ways, and that the character of the witness was shown to be such that he is wholly unreliable. Granting that the character of the witness and some inconsistencies in his testimony were such that his statements should have been weighed with great caution, nevertheless it was very possible that he told the truth about the particular circumstances to which his testimony referred as above stated. It was for the jury to consider and determine the question.

There is also voluminous testimony tending to prove that after the death of Cox, and in connection with Wilson’s defense to the present charge, Wilson attempted to obtain certain false statements which would tend to prove that he was not on the bridge at the time of the shooting of Cox. The record containing this evidence is filled with sundry matters of contradiction in testimony and impeachment of witnesses. Under the able guidance of counsel for appellant, who, in their brief, have very extensively explored the record, we have examined much of this testimony. In addition to that part of the evidence which tends to exclude the theory of suicide or accidental death, there is abundant evidence in the circumstances to which we have referred, which is sufficient to have justified the jury in finding that the killing was done by appellant. It is difficult to understand how it could have been done by anyone else. Some of these circumstances are sufficient to suggest a motive of revenge or interest as the cause for the crime; others show opportunity in that these two men were alone on the bridge, and one of them had a gun in his possession. Assuming that the gun was brought there by Cox, and that prior to the very minute of the shooting it had remained in his possession, this does not exclude the opportunity of Wilson to have obtained it, by violence or otherwise, immediately before thé shooting occurred. Since the jury determined—and, as we think, reasonably determined—’that there was no suicide and no accident, ive are driven to the conclusion upon the whole case, as shown by the evidence, that it is sufficient to justify the verdict of guilty of murder in the first degree.

There remain for consideration numerous specifications of error wherein it is claimed that prejudicial erroneous rulings were made by the court at the trial in the reception of evi

[3] Overruling objections of the defendant, the court permitted a witness to give testimony to the effect that several months prior to the homicide, the defendant, who was then being held in jail on a charge pending before the United States district court, ivas taken to the federal building, and that there, in the presence of several officers and of the said Cox, Wilson was informed that Cox had accused Wilson of sundry robberies. In reply to the objections made, the district attorney stated to the court that the evidence was offered as relating to “the question of motive.” In support of their contention that this evidence was erroneously admitted counsel for appellant refer to People v. Ayhens, 16 Cal. App. 618 [ 117 Pac. 789 ]; People v. Lapara, 181 Cal. 66 [ 183 Pac. 545 ]. These cases are not in point. Neither one of them relates to the admission of testimony concerning circumstances having relation to the existence of a motive for commission of the crime charged in the case then on trial. [4] Where the question of motive exists, and where evidence is offered which has a tendency to establish the existence of a motive for commission of the alleged crime by the defendant, the fact that such evidence tends to prove that the defendant was charged with the commission of another crime does not make the evidence inadmissible for the stated purpose relating to motive. (People v. Argentos, 156 Cal. 720 , 724 [ 106 Pac. 65 ].)

[5] The same objection was urged to the admission of similar testimony of the witnesses Cellar and Grant. Each of these witnesses also testified to the effect that Wilson did not make any reply to those accusations, or, in one instance, replied that he had nothing to say. The testimony of these witnesses, Cellar and Grant, was stricken out by the court. The jury was instructed to disregard all evidence so stricken out. Conceding that the court had erred in overruling the objections to that part of the testimony of these witnesses relating to the conduct of Wilson at the time when said accusations were made in his presence, but further taking into consideration that the accusations themselves related to matters unconnected with the present case, we are of the opinion that it was within the power of the court to cure such error, and that it was so cured by the order strik

[6] Deputy Sheriff Bright testified to a conversation with the defendant in the sheriff’s office in the presence of Manning, Dewar, and Biseailuz. This conversation occurred less than an hour after Cox had been shot. To the question, “What did you say to Mr. Wilson in their presence?” the defendant objected. The district attorney explained to the court that he expected to show “a lack of response.” Objection overruled. The answer was, “I said to Wilson, ‘You made a mistake in shooting this man. He didn’t double-cross you.’ He said, ‘I didn’t shoot him; he killed himself.’ ” A motion to strike out this testimony, on the ground that it was not within the rule under which it was admitted, was denied. Appellant now contends that the court erred in overruling the objection and in denying the motion. [7] Ordinarily, when a defendant, under conditions which fairly afford him an opportunity to reply, stands mute in the face of an accusation of crime, the circumstance of his silence may be taken against him as evidence indicating an admission of guilt. But if he promptly and fully deny the charge, the accusatory statements, standing alone, are not in any sense competent evidence of the defendant’s guilt, and should in such a contingency be excluded from the consideration of the jury. (People v. Lapara, 181 Cal. 66 , 71 [ 183 Pac. 545 ].) In one particular, Wilson’s answer was more than a denial of guilt, for he further stated, referring to Cox, “He killed himself.” If the jury believed (as we have said that the evidence authorized it to believe) that Cox did not kill himself, then the affirmative statement by the defendant declaring that Cox killed himself, was a false statement relating to the very matter in issue; and being more than a mere denial of that part of the question which concerned himself, the fact that he made such statement was properly admitted in evidence. (People v. Cole, 141 Cal. 88 [ 74 Pac. 547 ].)

There were some other instances of similar character to the above-mentioned testimony of Bright wherein the testimony showed that in response to questions asking Wilson why he had killed Cox, Wilson made no response, or simply responded, “I have got an attorney.that will do my talking for me.” In so far as the silence of Wilson, or his reply,

[8] But appellant further contends that the evidence concerning the statements made by Wilson, or his silence when accused, as shown by the testimony of the said witnesses, should have been excluded because the record shows that at the time of the accusations “the accused was menaced by half a dozen or more deputy sheriffs, each heavily armed. He was being cursed, threatened, and intimidated. Two rifles were placed against his body, accompanied by the most vile epithets and threats of immediate death, and such like.” According to the testimony now under consideration, other than that of Bright, the accusations were made at the top of the stairs immediately after Wilson, under threatening orders of the officers, had come up there. A direct confession made under such circumstances might well have been excluded. (People v. Fowler, 178 Cal. 657 , 662 [ 174 Pac. 892 ]; People v. Miller, 135 Cal. 69 [ 67 Pac. 12 ].) The same is true of an implied confession by mere acquiescence by silence.

Referring to the testimony of sundry witnesses to facts occurring subsequent to those constituting the res gestae of the alleged crime, it is contended that the court erred in overruling the objection that there was no prima facie showing or proof of the corpus delicti. For reasons which have been sufficiently indicated we think there is no merit in this contention.

[9] At the time when the defendant’s attorney was presenting an objection to a question asked of the witness Wright, defendant’s attorney asked permission to argue the matter outside the presence of the jury; in other words, that the jury be excused pending such argument. The court inquired whether the point presented related to the “hypothesis that the corpus delicti has not been shown.” On receiving an affirmative reply, the court said to defendant’s attorney, “What is the defect in the proof as you see it? Where is the proof insufficient?” Defendant’s attorney replied that the court should not have asked such a question in the presence of the jury, and asked that the jury be instructed to disregard it; asserting that it was an indica

Next we have twelve assignments of error (designated H to H 11) predicated upon the cross-examination of the defendant after his direct examination as a witness on his own behalf. The point that the cross-examination, as conducted, was improper, is presented in several aspects, with numerous illustrations from the record, all of which have been examined. The, main contention is that the cross-examination was permitted to extend to matters not touched upon in the examination in chief, and that they were elicited solely to prejudice the defendant, and not for any legitimate cross-examination purpose.

The first contention of this group relates to a question which was asked and, after objection and discussion, withdrawn. The asking of the question is assigned as misconduct in that the district attorney knew that the fact could not be proved and did not ask the question in good faith. After reading the discussion, as shown in the record, we conclude that the district attorney, at the time of asking the question, believed that he had a right so to do.

[10] The other points of this group relate to conversations and other descriptions of fact which had not been touched upon in the direct examination. The witness was asked whether, in December, 1921, he had been confronted

The subject matter of these questions had not been included in the direct examination. The objections should have been sustained. The fact that the answers to the questions might have tended “to show motive,” or to affect the credibility of the witness, is no justification for an extension of the cross-examination to a point where it conflicted with the right of the defendant to be exempt from such cross-examination beyond the scope of the matters about which he was examined in chief. (Pen. Code, sec. 1323.) It is true, however, that the answers were not such as could have seriously injured the defendant. If, in the face of his denials, the jury believed that he lmew that Cox had made accusations charging him with criminal acts, or that he had a motive for wishing Cox to be out of the way, or that he had said that Cox shot himself, they would have reached the same conclusions without the testimony thus given by the defendant. If these erroneous rulings injured the defendant at all, it would be for the reason that, disbelieving these answers, the jury would be less willing to believe the other parts of his testimony. This, it must be conceded, is of some importance, and will be taken into consideration when we come to the question whether or not

Appellant further assigns misconduct of the district attorney and errors of the court in connection with the cross-examination of the witnesses Cronin and Baker. (One of these, as the record shows, was in the cross-examination of the witness Glaze, and not of Cronin.) These appear to be of minor importance. If the district attorney erred in asking any of these questions, that alone does not, in the instances noted, amount to misconduct, and we do not think that the court erred in any of the said rulings.

[11] The defendant requested a certain instruction concerning the duty of a juror to render his verdict in accordance with his individual opinion and not to be influenced in rendering a verdict of guilty “for the single reason that a majority of the jurors, or even all the other jurors, should be in favor of a verdict of guilty.” In giving this instruction, the court struck out the words “a majority of the jurors or even all the,” so that the clause read, “for the single reason that other jurors should be in favor of a verdict of guilty.” Beading the instruction in full, we find that it fully expresses the principle upon which the defendant relied in requesting the instruction. Not even the defendant in a criminal action is entitled to dictate the precise terms of instructions to a jury. His right is that the court correctly and fairly state the law governing the subject matter of his defense.

[12] In several instances where the court was making application of the doctrine of reasonable doubt to the issues of this case, the instruction as tendered to the judge contained the phrase “to a moral certainty beyond a reasonable doubt,” and the court substituted therefor the phrase “beyond a reasonable doubt.” Also the court in one or more places struck out from instructions requested by the defendant certain language disclaiming any intention of the judge to express an opinion upon questions of fact. None of these changes in the instructions1 furnish a reasonable ground of complaint. The court had given to the jury the usual well-accepted definition of the doctrine of reasonable doubt, including the use of the words “to a moral certainty,” in defining that state of mind wherein a “reasonable doubt”

[13] It is claimed by appellant that in certain of its instructions the court erroneously assumed that in fact appellant did kill the said Herbert Cox. Thus, the court said: “You are instructed that in determining the intention of the defendant at the time of the transaction complained of, it is important to consider the means used to accomplish the killing, ’ ’ etc. That the court did not by these words assert that in fact the killing was done by the defendant clearly follows from the concluding words of the instruction: “Therefore, if you are satisfied beyond a reasonable doubt that the defendant did,” etc. (With one slight difference, this is the same instruction set forth in People v. Jones, 160 Cal. 358 , at pp. 369, 370 [ 117 Pac. 176 ].)

'The same objection that the court erroneously assumed the commission of the homicide by the defendant is presented concerning an instruction given in the language of section 1105 of the Penal Code. Properly understood, this instruction does not intimate or state that the commission of the homicide had been proved. The same point was passed upon by this court in People v. Caballero, 41 Cal. App. 146 , 152 [ 182 Pac. 321 ], where the substance of the supreme court decisions on the same point is stated.

[14] Because the prosecution was emphasizing its effort to show conduct upon the part of the defendant indicating consciousness of guilt, the defendant requested, and the court gave, the following instruction: “Consciousness of guilt, if such is to be inferred in this case, is not sufficient of itself, standing alone, to warrant or sustain a conviction. If such inference is drawn in this case, it is a circumstance to be considered by the jury.” Appellant now complains that the court did not also give to the jury the following instruction, which he at the same time requested: 1 ‘ Consciousness of guilt is an inference which may or may not be drawn from evidence introduced in the record. Whether such inference shall or shall not be drawn from the evidence in

[15] The defendant requested the court to give an instruction which was to the effect that if the defendant refused or failed to deny any accusations made in his presence, such fact must not be used against him unless the circumstances and surroundings of the defendant at that particular time were such that he was in perfect freedom to make denial. Complaint is now made because the court in giving that instruction substituted for the phrase “in perfect freedom to make denial” the phrase “free to make denial.” We think that this was a substantial compliance with the request. Immediately following the words above mentioned, the instruction closed as follows: “If at that time he was under menace or threat of anyone, or was at that time subject to the brandishment of weapons, then his refusal or neglect to make a denial of any accusation must not be used against him.”

[16] Appellant complains that the court refused to instruct the jury that it was not sufficient that “the greater weight or preponderance of evidence support the allegations of the indictment,” and refused a further request that the jury be told that “the defendant in this case cannot be convicted unless his guilt is established by more than a preponderance of evidence.” It is contended that the court erred in this and that nowhere in the instructions were the jury told that a preponderance of evidence was not sufficient. It is a sufficient answer to say that when a jury in a criminal case is instructed that the defendant must not be convicted unless the facts which establish his guilt have been proved beyond a reasonable doubt, that the burden of proof is upon the prosecution, and that “if upon such proof there is reasonable doubt remaining, the accused is entitled to the benefit of it 'by an acquittal,” the instructions thus given necessarily include the proposition that a mere preponderance of the evidence will not justify a verdict against the defendant.

We summarize the remaining points concerning refusal of the court to give instructions requested by the defendant

We have reached the conclusion that the evidence abundantly justifies the verdict and that the defendant has had the benefit of a fair and impartial trial. While we have held that the court erred in some of its rulings upon objections made by appellant to certain offered evidence, we are satisfied that those errors, when considered in connection with the entire case as presented, were, in fact, not seriously prejudicial to the rights of the defendant, and have not resulted in a miscarriage of justice.

The judgment and order are affirmed.

Houser, J., and Curtis, J., concurred.