People v. Brown

Appellants and one Joseph Tenner were accused in one indictment in two counts: (1) Conspiracy to commit murder; (2) assault with a deadly weapon with intent to commit murder on Florence Brown. All defendants pleaded not guilty and Stoner moreover not guilty because of insanity. On both counts the jury found Brown and Stoner guilty, Tenner or Tannenbaum not guilty. After disagreement of the first jury as to Stoner’s sanity, a second jury found him sane. Motions for a new trial by Brown and

In the evening of October 6th, 1952, Mrs. Brown was found in her bedroom in the Brown apartment at 896 Eddy Street, San Francisco, covered with blood. On a chair in the living room was a ballpeen hammer which proved to have human blood and hair on the ball. Beneath wounds on the back of Mrs. Brown’s head, which could have been caused with that hammer, the bone of the skull had been shattered and depressed about 1% inches. There was a pool of blood at the bottom of the television set in the living room and a trail of blood from there to the bedroom. Mrs. Brown had no recollection whatever of what happened after 7 o’clock in the evening of October 6 until she found herself in a hospital. She thought she had been in an automobile accident. Mr. Brown at different times told police there was nothing helpful he could offer.

On December 11,1952, defendant Stoner was arrested by the Spokane police. On December 12, 1952, he made a confession to District Attorney Lynch and Inspector John 0 ’Haire who went to Spokane, which confession was transcribed and the next day a further confession which was recorded. These confessions state in detail, to be mentioned later, his conspiracy with Brown and Tenner to kill Mrs. Brown so that Brown would get her money, the assault on Mrs. Brown with the ballpeen hammer placed by Brown near the television set for that purpose, the price Stoner would get for the killing, his contact with Brown and payments made by Brown to him after the act. Before the grand jury Stoner voluntarily testified to the same effect as these confessions and he made three supplemental confessions in San Francisco when he was taken to places where he had before stated he had done certain things. However, on December 28, 1952, in a statement to the three attorneys of the three defendants Stoner retracted his implication of Brown and Tenner, contending that his statements in that respect were made at the instigation of District Attorney Lynch who had offered him immunity. Until the trial, however, Stoner did not contend that he himself was not guilty of the assault. But at the trial he took the position that when in the evening of October 6 he went into the Brown

With respect to Stoner the evidence with inclusion of the confessions is so overwhelming that any error urged in the briefs and to be mentioned later cannot have been prejudicial. All Stoner’s confessions are in general wholly coherent and in accord with each other and in many points are corroborated by independent evidence. If the several confessions and testimony before the grand jury are taken together the substance of them is mainly as follows:

He had first met Brown when Brown had acted as his attorney in a criminal matter and when he had been released Brown had given him room and board and he had worked for him as a handyman in Brown’s house and apartment from August until October 1952. Stoner also went with Brown to Mexico in the matter of Mexican divorce papers of one of Brown’s clients. Through Brown he met Joe Tenner. In August or September there had been conversations indicating that Brown and Tenner wished to have Mrs. Brown killed so that Brown would get her money which they then could use for a place in Lafayette, the Acapulco, which Tenner wished to acquire and for a yacht Brown wished to buy. Stoner would get from $500 to $5,000; Brown’s Cadillac and Tenner’s car. The first attack on Mrs. Brown was planned with Brown for the evening of September 26th. Stoner was to hide in the apartment while Mrs. Brown was away visiting a friend in a hospital. Alibis both for Brown and Stoner were

These confessions are amply corroborated. Mrs. Brown testified that approximately two weeks before she was brought to the hospital she surprised Stoner in her apartment in the dark at 8 o’clock in the evening. Much of the corroboration is formed by the testimony of Calvin. He testified as to the telephone conversation from the booth at the service station in the morning of October 6th, that after Stoner had failed to reach Brown he gave Calvin a number and asked him to call. A lady secretary told him that Brown was busy. He then gave the number of the booth and the name Howard Patton, because Stoner had told him not to use his own name. When Calvin phoned again the lady said Brown was just through; a man then said, “Carl Brown speaking.” Calvin gave the phone to Stoner who said, “Hello, Carl” and closed the door. After the telephone call Stoner said.he had to see Carl and was going over with a cab. He told Calvin to

That evening (the time of the assault) Mrs. Brown was seen by the witness Moye in the doorway of her apartment saying to a man who answered Stoner’s description in height and dress, “Oh, it’s you.” Blood was found near the television set and blood and hair on the hammer. The hammer was found in a chair in the living room where Stoner stated he threw it. Calvin testified that Stoner when he went into the apartment house and left Calvin in the parked car had pointed out to him the window of the- apartment to which he was going. That a few minutes after he had gone the shadow of a woman moved by the window and right after a man’s figure who pulled the shade down. Stoner returned in five minutes and when he got in the car told Calvin to drive straight on and said: “I killed her; I hit her seven times with a ball peen hammer. ’ ’ He was nervous and shaky. He asked if Calvin could see any blood on him and whether Calvin could see his arm moving up and down. Stoner had then a wallet and a .38 revolver, which he had not had before. He told Calvin to draw into a gas station; he had to get in touch with Carl right away. Stoner changed clothes at the gas station, saying that he had been seen by someone in the apartment house and phoned twice asking for Carl Brown. After the call he said he had to go to meet Carl right away. Stoner drove to an intersection on California, put Calvin off and placed him opposite a side street and himself drove into that street, stopped there a few seconds and drove on. A minute or two later he saw the car again come around a corner; then a man was sitting next to Stoner. It was 8:20 by a clock on a tower when the Cadillac drove off. Stoner came back after 15 minutes and said they were going right back to San Diego. Later Stoner asked him to straighten the money in his wallet which he said was over $500. On the way up from San Diego there had been only $30. He said he had given the revolver back to Carl. Calvin also testified to the tearing up of the wallet and contents, and the finding and throwing down of a piece of the wallet near a restaurant in a little town. A portion of the wallet was found by police near the telephone booth of the restaurant Stoner had mentioned. Further Calvin corroborated the unexpected departure in the night from the motel near Oakland, when Stoner told him that he phoned the hospital where Mrs. Brown was and that he was afraid his call had been traced. Moreover Stoner at the trial generally corrobo

The above evidence overwhelmingly proves Stoner’s guilt as to both cbunts, the conspiracy with Brown to commit murder, and the assault with a deadly weapon with the intent to commit murder. However, it is argued that the confessions made after the arrest of Stoner are hearsay as to Brown and no proof of the conspiracy, so that they cannot become admissible as to Brown under section 1870, subdivision 6, Code of Civil Procedure. “ It is well settled that after a conspiracy to commit an unlawful act is established, every act of each member of the conspiracy in pursuance of their original plan is in contemplation of law the act of all of them.” (People v. Harper, 25 Cal.2d 862 , 870 [ 156 P.2d 249 ].)

The strongest independent evidence against Brown consists in his attempts to cover up incriminating circumstances like his contact with Stoner on the day of the assault and thereafter, the use of Brown’s car by Stoner, his payment of money to Stoner. Although the evidence shows without conflict that Stoner had Brown’s Cadillac from September 25 nntil October 10, Brown declared twice to the authorities that Stoner had had no access to the Cadillac later than two weeks before the assault. As stated before Brown denied all contact with Stoner on October 6th. However from the stated testimony of Calvin and the notation in Brown’s telephone record the jury could conclude that on that morning he had a telephone conversation with Stoner which he wished to cover up. The same applies to the meeting after the attack. Here again there is the evidence of Calvin, as to telephoning by Stoner from a gas station, which is corroborated by the-testimony of Pettus, that that evening he spoke at Andy Wong’s on the telephone to somebody who had asked for Brown and told him that Brown was not there, that he was expected and might be reached at his office and Calvin’s further evidence as to Stoner’s parking in Quincy Street and passing thereafter in the car with a man. Stoner also testified that he called Brown from the service station. “I knew he was expecting to have me call, so I went down on purpose, to go up and see him.” Although Brown claimed that he did not receive a phone call from Stoner, did not leave the office before he finally left to meet Pettus at Andy

The meeting on October 10 between Stoner and Brown after which the Cadillac was returned at the airport took place in the car at an out of the way place (the Yacht Club). Brown’s testimony that it took place there because he had been to Marin County to serve papers—which were not served —is unbelievable. The jury could conclude that the arrangement was made for the purpose of secrecy. Brown sent money to Stoner after the assault giving the alias George Malone and sending the telegraphic money orders each time from a different Western Union office." The jury could conclude that this again was done for the purpose of secrecy. Brown’s explanation that Stoner might be questioned and that his secretary quarrelled about the payments to Stoner does not explain the use of a false name. On December 13, 1952, Brown declared to the authorities that he had sent Stoner money to San Diego only. It was proved that he sent money orders under the name of George Malone to Butte, Montana and to Spokane, Washington also. On the same date he stated that he had had no telephone conversation with Stoner for more than a couple of weeks, whereas he had had more recent conversations with him by phone to El Centro, Butte and Spokane. He also stated that he had not seen Stoner since two weeks prior to the assault, whereas he had seen him on October 6, October 10 and November 13.

Some other circumstances pointed out by respondent are noteworthy: On the evening of both visits of Stoner to Mrs. Brown, Brown was in the company of Pettus and brought him home with him and on October 6th he made the appointment with Pettus around noon (after having spoken to Stoner). Brown went home on October 6th at 4 p. m. so that he had an opportunity to place the hammer near the television set; he testified that the ballpeen hammer (not a normal household implement) had been in the apartment off and on for a year. Mrs. Brown testified that she had never seen anything like it in the apartment. Respondent also points out independent evidence as to possible motive of Brown. He was not happy in his marriage and wanted separation before the assault. (After the assault he still said that such would be best.) There was also evidence indicating a relation with another woman around the time of the assault. Moreover Brown may have had a financial interest in Mrs. Brown’s death. He had been the attorney for Mr. Richardson, Mrs. Brown’s former husband, and after Richardson’s death on August 21, 1950, he was the attorney for Mrs. Brown. Mrs. Brown testified that she entrusted to Brown the large amount of money contained in Mr. Richardson’s safe deposit box and later another amount of more than $5,000. Mr. Brown gave her a receipt for $14,320 received for deposit. Although the evidence as to time and amounts received is not quite .clear, Mr. Brown admitted receipt of similar amounts but contended that he had bought in October or November, 1951 a cashier’s check of $10,000 in his own name which he later gave over to Mrs. Richardson. At the Crocker First National Bank, where Mr. Brown banked, no such check or application for it could be found. Brown and Mrs. Richardson executed a joint and several will, dated October 28, 1951, in which Mrs. Richardson left specific property to her son, the balance to Brown. Mr. Brown and Mrs. Richardson were married February 28, 1952. After a quarrel about a girl Mr. Brown returned one exemplar of the will to Mrs. Brown who later destroyed it and made a will leaving her whole estate to her son. However the joint will had been executed in twofold and Mr. Brown kept an executed copy in his office. At the trial Brown thought it a problem

The above independent evidence is sufficient as prima facie evidence of the conspiracy as to Brown. To make evidence of the acts and declarations of an alleged conspirator relating to the conspiracy admissible against the other (Code Civ. Proc., § 1870, subd. 6) the conspiracy need be proved only to the extent of establishing prima facie evidence of that fact. (People v. Steccone, 36 Cal.2d 234 , 238 [ 223 P.2d 17 ].)

This prima facie evidence is based on Brown’s acts, lies and possible motive and is not objectionable as such although it derives its meaning in large part from the fact that the assault by Stoner is considered proved. If such an independently proved substantive crime of one conspirator could not be considered in evaluating the acts and relations of other conspirators as showing a common purpose, the provision of section 1870, subdivision 6, would lose most of, its importance. As a rule a conspiracy cannot be directly proved but must be inferred from the relation of the acts of the different conspirators. (People v. Griffin, 98 Cal.App.2d 1 ,

Appellant’s contention that the assault on Mrs. Brown necessarily terminated the conspiracy and that no acts or statements after that event can be considered is without merit. The purpose of the conspiracy was not attained by the assault as Mrs. Brown survived and there is evidence indicating that the purpose had not been abandoned when Stoner returned to San Praneiscon on October 10. Moreover the conspiracy “may, for various purposes, extend in point of time beyond the actual commission of the substantive crime, providing there is some evidence showing that subsequent activities of the conspirators were a part of their scheme or plan.” (11 Cal.Jur.2d 223 and cases there cited.) Examples are division of the loot and payment for participation in the crime. (People v. Ross, 46 Cal.App.2d 385 , 395-396 [ 116 P.2d 81 ]) and acts contemplating escaping punish

It is next contended that, although Stoner’s confessions were admitted against Stoner alone the failure to delete therefrom the portions relating to Brown, especially the repeated references to Brown’s alleged culpability, constituted prejudicial error which could not be corrected by admonition to the jury. Appellant Brown points out a great number of references to him in the admitted confessions apt to influence the jury against Mm, notwithstanding the repeated admonition of the court that the confessions could not be used against him.

It must be conceded that a large part of Stoner’s confessions was detrimental to Brown, but we cannot concede that any portion of them should have been stricken. The trial court was overgenerous to Brown when it limited these confessions to the case against Stoner. The indictment against both defendants carried a count charging both with an “assault with intent to commit murder” under Penal Code, section 217, page 34. Stoner was merely the hired killer for Brown who prepared the whole scene of the crime, provided the weapon used, and paid his agent for performing the murderous act. It needs no citation of authorities to support the statement that conversations between principal and agent in preparation of an act to be performed by the agent for the benefit of the principal are binding and admissible against both. Here Brown hired Stoner as his agent to kill Brown’s wife. We could eliminate from consideration all the “confessions” since Stoner’s testimony was sufficient to prove Brown’s participation. It is this testimony of Stoner which is important here rather than what is found in Stoner’s confessions and that testimony completes the case against Brown.

The general principle is stated as follows in 22 Corpus Juris Secundum 922: “. . . Evidence which is relevant and otherwise admissible is not to be excluded because it may also have a tendency to prejudice defendant or his codefendants . . . or because it is capable of being distorted to unfair and prejudicial uses, accused’s remedy being to have the jury’s attention directed to the legitimate purposes and legal effect of the evidence.”

In this case all conversations of Brown and Stoner relating to the killing of Mrs. Brown, its desirability, the opportunities and means for it, the means to cover up the

No specific objection or motion or “suggestion” to delete on the ground here treated was made when Stoner’s first two (Spokane) confessions and his statements before the grand jury were actually offered in evidence. Only after all three had been read to the jury did the attorneys of Brown and Tenner revert to this point citing People v. Zammora, 66 Cal.App.2d 166 [ 152 P.2d 180 ], and moved for a mistrial. And after this was denied, they moved to strike specific parts from the confessions, which motion was also denied. Both denials were correct. Even if the confessions read to the jury contained objectionable matter no sufficient motion to delete it was timely made and striking of parts after they had been read to the jury would not serve any good purpose. The confession had been admitted as to Stoner only and the jury had been clearly so instructed.

The next grievance is that the court failed to give an instruction proposed by defendants in the words of section 32 Penal Code defining an accessory after the fact. It is contended that this instruction should have been given because there was evidence from which the jury could have concluded that Brown’s communications with Stoner and his providing of money to Stoner after the assault took place and after Brown had learned that Stoner had committed the assault were all made with the intent of making him avoid or escape arrest (without evidence that he was involved before the assault took place.)

When the same grievance was urged at the hearing of the motion for a new trial the trial judge took the position that it had been agreed between counsel and court that there would be no instruction on any lesser included offense, and when it was urged that accessory after the fact was not such an offense, he stated that then there was no point to the argument. It seems clear that assisting a principal after the commission of a crime is not necessarily included in the main crime itself in the sense of section 1159, Penal Code. (See section 972, Penal Code, which permits prosecution of the accessory alone and People v. Wallin, 32 Cal.2d 803 , 807 [ 197 P.2d 734 ], which holds that the crime of the accessory is separate and distinct.) The stipulation does not seem to cover an instruction as to an accessory after the fact. With respect to necessarily included offenses it is the duty of the court to instruct the jury on any such offense of

Appellants’ contention that there is here evidence from which it could be concluded that Brown was only an accessory after the fact is not supported by the record.

The Carmen case (supra) merely follows the settled rule that, in a trial for murder, when the evidence raises the issue of manslaughter, an instruction covering the minor offense must be given. The theory of the case is based squarely on the showing that evidence was present which would have supported a conviction on the minor offense. The position of the respondent is clearly stated in respondent’s brief from which we quote: “May we point out that at no time during the trial did the appellant Brown assert that he was assisting Stoner in avoiding arrest. The reverse is the case. Brown continually asserted that all of his associations with Stoner after the attack were in no way intended to assist Stoner in avoiding arrest. All of their telephone conversations were related to the divorce papers which Stoner was to get in Mexico, or were requests by Stoner for money. The meeting between Stoner and Brown at the Yacht Club was only for the purpose of handing over these divorce papers, returning Brown’s Cadillac, and paying Stoner for his services. Brown explained that all of the money which he had given Stoner was in payment for work which the latter had done for him, or in payment of Stoner’s compensation claim. He constantly denied any knowledge that Stoner was sought by the police. If such were true, as Brown claims how could he have aided Stoner with the ‘intent of avoiding arrest’?”

The rule of People v. Sanchez, 30 Cal.2d 560 , 567-568 [ 184 P.2d 673 ], is controlling here. It was there held that it was not error to refuse to instruct the jury on an issue which was contrary to the defendant’s testimony. Here Brown consistently denied all activities in aid of Stoner’s escape from arrest. No other witness testified to the contrary. The moneys paid to Stoner by Brown were all paid or contracted for before the assault. They were paid as wages for the contemplated murder—not in aid of Stoner’s flight from arrest.

The next error of. law argued is that the trial court, after defendant Stoner had testified on voir dire as to the

Further error is predicated on the court’s allegedly permitting the introduction of evidence of other crimes or prac

In this connection appellants complain of evidence regarding a colorable transaction with respect to an antedated Mexican divorce paper as to which Stoner and Brown cooperated in behalf of a client of Brown’s.- This evidence was contained in Stoner’s second confession, his grand jury testimony, his fifth confession and in a statement of Brown, admitted in evidence. Prior to the admission of the last two statements, objections or motions to delete directed to this point were made. However no such objections were made the first two times when such evidence was received. Brown also could then have objected because it was without value for the case against Stoner and prejudicial to him. After this evidence had come in without objection the admission of similar evidence over objection is not so prejudicial as to require reversal. The pretrial statements of Brown in that respect are relevant to corroborate Stoner’s confession in general. Respondent points out correctly that such evidence is admissible if it tends logically, naturally and by reasonable inference to establish any fact material for the People or to overcome any material matters sought to be proved by the defense. (People v. Peete, 28 Cal.2d 306 , 315 [ 169 P.2d 924 ]; People v. Hughes, 123 Cal.App.2d 767 , 769 [ 267 P.2d 376 ].) Respondent contends that the evidence was relevant to show an intimate connection between the defendants, relevant in all cases of conspiracy. And with that we agree.

Brown also complains of the admission of evidence as to nightly relations of his with other women, among whom his secretary Dorothy Zentner and especially one Sharon Davis, and as to his ownership of 1181 Clay Street where he and each of the two named women had lived. His relation with other women was relevant to his bad relation to his wife which deserves consideration in the matter of motive. The ownership of 1181 Clay Street is indirectly of importance for his relation to the named women. The house was recorded under the name of Sui Mae Hing. Brown and Miss Zentner contended that a deed in that name was made out by Miss Zentner; handwriting experts testified that the deed was in the handwriting of Sharon Davis. There is no error here.

Portions of the district attorney’s argument to the jury pointed out as improper and constituting prejudicial error include the following: The frequent use of Stoner’s confessions, admitted as against him only, for argument against Brown by comparing Brown’s position as to certain events with the one given by Stoner in the confession. This was all within the facts proved, and the argument was not error.

The case is not even close on its facts. The evidence shows a cold-blooded attempt to murder Mrs. Brown so that' her husband could acquire a large amount of real and personal property standing in her name. Stoner was merely a weak-minded tool employed by Brown for that purpose. Aside from Stoner’s repeated confessions the testimony of other witnesses and the circumstantial evidence discloses the guilt of both defendants unmistakably. Both were given a fair trial and the errors assigned were not prejudicial.

The judgments and the orders denying a new trial are all affirmed.

Dooling, J., and Kaufman, J., concurred.

Appellants’ petitions for a rehearing were denied April 5, 1955, and their petitions for a hearing by the Supreme Court were denied April 20, 1955.