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District Court of Appeal, Fourth District, California.


Cr. 330.

Decided: July 29, 1936

Donald P. Nichols and Allan J. Carter, both of Pomona, and W. I. Gilbert, of Los Angeles, for appellant. U. S. Webb, Atty. Gen., and R. S. McLaughlin, Deputy Atty. Gen., for the People.

The defendant William Perkins stands convicted of murder in the first degree, upon which conviction a judgment of life imprisonment has been entered. He prosecutes this appeal both from the judgment and from the order denying a new trial.

That the deceased, David Philip Kirk, known as “Skippy,” was murdered in the city of Ontario on the morning of December 31, 1935, is admitted. The evidence connecting the defendant with the murder is purely circumstantial. The record discloses that Kirk had been living in a small two–room house, and that the defendant had been living with him for about ten or twelve days before the murder. Kirk was about sixty years of age and defendant about twenty–three. Kirk operated a penny ante poker game in partnership with one Clark. A poker game broke up at about 1:30 o'clock on the morning of December 31, 1935. The defendant and Kirk had been in the building substantially all evening and were in the house together when the game broke up. Thereupon the players left, and Kirk and defendant remained in the house and went to bed. Kirk slept in the east room and the defendant in the west room. Kirk died at about 5:45 o'clock that same morning. He had been strangled and his skull was fractured. Defendant testified that he saw Kirk have $7 and other bills on his person the night prior to the murder. Thus far the evidence is without conflict and is conceded by both sides to be substantially correct and to establish beyond a reasonable doubt that Kirk was murdered.

The evidence connecting defendant with the murder of Kirk may be fairly stated as follows: Several witnesses testified that between 12, midnight, and 1:20 on the morning in question, they saw Kirk have in his possession paper money which they estimated to aggregate about $20 to $25. Other witnesses testified that Kirk had a new dollar bill of the 1935 series on the evening prior to his murder and that he had called their particular attention to this bill and at the same time showed them several of the new issue of 25–cent pieces which he also had in his possession at that time.

After Kirk's death some of the coins were found on the floor near his body and others were found on his person but the bills were missing and were never found either on his person or in the house. The testimony showed that Kirk ordinarily, and on the night prior to his death, carried his money in one of the pockets of a khaki shirt which he had worn that night and which he wore to bed that night.

Defendant testified that he and Skippy retired to their respective beds about 1:30 o'clock on the morning of December 31, 1935, and that he went to sleep almost immediately; that he was awakened shortly before dawn by two men crawling through one of the windows in his room; that the window was covered by a screen only; that at the time he was sleeping between two mattresses and that one of the men got on top of the upper mattress and held him down on his bed in such a manner that he could not arise; that he heard what he thought was a muffled cry for help coming from the adjoining room where Skippy was sleeping; and that after four or five minutes the man on top of him jumped off and ran out through the front door of Skippy's room. During all of this time defendant made no outcry.

Defendant further testified that as soon as this man ran he got up and ran after both men to the corner near the alley and saw two men running up the alley, just turning the corner at the ice plant. He did not raise any outcry nor pursue them farther, but returned to the house, where he found Skippy lying on the floor covered with blood. Several witnesses testified that at about 6:15 o'clock on the morning in question, and while it was still dark, a red–headed man (undoubtedly the defendant) came to their doors asking for assistance. Mr. Ireton, who lived next door, testified that defendant came to his house at about 6:15 asking for help and saying that somebody had broken in and beaten up his partner. Ireton sent the defendant to a house where he said there was a telephone. Shortly thereafter defendant again came to Ireton's house and asked for help. Ireton promised to come but later called across the fence suggesting that defendant call the police. Mr. Ireton further testified that shortly after defendant left his house he looked over at Skippy's house and saw some one walking in the house and then walk over to the window in the west room, and he then saw some one's hand moving the bottom of the screen on the window back and forth. This was the window, according to defendant's testimony, through which the two men had entered his room.

Approximately at 6:30 defendant went to the ice plant and telephoned the police asking them to come to his assistance but gave them a wrong address for Skippy's house. Defendant testified that while waiting for the police to come he succeeded in getting Skippy up onto the bed; that he heated some water and took a towel and washed some of the blood off Skippy's face; that he then put cold water on his forehead trying to bring him to.

Some time later defendant's attention was called to the fact that he had given a wrong address to the police and he then called the department again giving a more correct address. Defendant had lived in Ontario approximately seventeen years.

Several witnesses testified that shortly after they arrived at the scene of the murder they discovered defendant had blood on his clothes and that they also saw certain scratches and cuts on his face, neck, and body. Defendant said that he had not been in a fight the day or evening before the murder, but stated he got the scratches from the mattress while he was being held down and that his assailant did not touch him. The police doctor testified that he found human skin and blood in the débris which he removed from under the fingernails of Kirk.

The chief of police testified that he arrived at the house and saw defendant for the first time at approximately 7 o'clock on the morning the murder was committed; that he talked to defendant and that during the conversation defendant pointed out the window in his room where he claimed the two men had entered; that he examined the window and window sill; that there was dust and dirt on the window sill and that it had not been disturbed recently. The window was approximately 30 1/2 inches high and about 14 inches wide and was about 3 feet above the porch outside. The window had been covered by a screen which was partly loosened from the bottom and left side.

Some of the witnesses testified there was dew on the ground that morning and that they examined the ground for footprints; that they saw footprints where defendant said he had gone to the corner of the house, but that there were no footprints in the alley; that the alley had been freshly scraped the previous night.

Mrs. Murphy testified that on January 18, 1936, she and her seven year old son found three $5 bills, and four $1 bills, in a hole in a pepper tree across the street from a Mrs. Dickey's house. This was the green house on the corner where defendant admitted he had gone for help on the morning in question. She further testified there was a growth of brush around the foot of the tree partially concealing the hole where she found the money. This hole was about a foot and a half above ground. The pepper tree was some 200 or 300 feet from the Kirk premises. The money was immediately turned over to the police and was subsequently introduced in evidence at the trial. One of the dollar bills was of the new 1935 series similar to the one which Kirk had displayed the night prior to the murder.

A piece of wood about two by three inches and fourteen inches in length was found under a dresser in defendant's room. One of the officers testified that at the time it was found he saw a gray hair on it. The police doctor testified that Kirk had not only been strangled to death, but that he had been struck over the head with a blunt instrument with sufficient force to fracture his skull; that defendant told the officers on the morning of his arrest that it was from forty–five minutes to an hour between the time he was able to get out of bed and the time the police arrived in answer to his call. The first officer arrived approximately fifteen minutes after the first call by defendant to police.

On this state of the evidence the defendant challenges its sufficiency to sustain a conviction. His contention is that the Supreme Court in the case of People v. Lamson, 1 Cal.(2d) 648, 36 P.(2d) 361, 363, laid down the following rule: “Resting its case upon circumstantial evidence, the prosecution must not only show a set of circumstances consistent with guilt, but must show a set of circumstances inconsistent with any reasonable theory of innocence.” Also that the decision in People v. Staples, 149 Cal. 405, 86 P. 886, 894, wherein it is said that “it will be perceived that the evidence in the case relied on to establish the guilt of the defendant is practically circumstantial, and it is elementary law that where the evidence is of such a character it must be not only consistent with the hypothesis of guilt, but inconsistent with any other rational hypothesis. The deduction to be drawn from these circumstances is, ordinarily one for the jury, but where, in a case such as this, every circumstance relied on as incriminating is equally compatible with innocence, there is a failure of proof necessary to sustain a conviction, and the question presented is one of law for the court. The prosecution has the burden of proof. The defendant is presumed innocent until the proof satisfies the jury beyond a reasonable doubt of his guilt. The right of a jury to return a verdict of guilty is not an arbitrary right. The sufficiency of their verdict must be tested by determining whether the evidence upon which that verdict is framed was of such a character that they could say from it that in their judgment no reasonable doubt of the defendant's guilt existed,” governs the decision in this case and requires a reversal. In each of these cases the question as to whether or not a murder had in fact been committed was one of the matters which the prosecution attempted to establish by circumstantial evidence. In the case before us the fact that a murder had been committed is conceded, and we are only considering whether or not the circumstantial evidence is sufficient to connect the defendant with, and to convict him of, the murder. Where the commission of the offense charged is conceded and it is left to be determined only who was the perpetrator of the crime, we think the proper rule is laid down in the case of People v. Tom Woo, 181 Cal. 315, 184 P. 389, 393, where it is said: “In passing upon this question [the sufficiency of the evidence] we will not attempt to determine the weight of the evidence, but will decide only whether upon the face of the evidence it can be held that sufficient facts could not have been found by the jury to warrant the inference of guilt. For it is the function of the jury in the first instance, and of the trial court after verdict, to determine what facts are established by the evidence, and before the verdict of the jury, which has been approved by the trial court, can be set aside on appeal upon the ground we are discussing, it must be made clearly to appear that upon no hypothesis whatever is there sufficient substantial evidence to support the conclusion reached in the court below. The determination of a charge in a criminal case involves proof of two distinct propositions: First, that the offense charged was committed; and, second, that it was perpetrated by the person or persons accused thereof. In this case there can be no doubt of the first proposition. * * * Did these defendants commit or participate in the commission of the murder? What facts can we say the jury could have resolved from the evidence in order to justify the inference of guilt? We must assume in favor of the verdict the existence of every fact which the jury could have reasonably deduced from the evidence, and then determine whether such facts are sufficient to support the verdict.”

In People v. Latona, 2 Cal.(2d) 714, 43 P.(2d) 260, 263, the Supreme Court said: “However, as was said in People v. Martinez, 20 Cal.App. 343, 345, 128 P. 952, 953, if ‘the circumstances established reasonably justified the conclusion of the jury as expressed in their verdict, and, even though this court were of the opinion that such circumstances might be reasonably reconciled with the innocence of defendant, such fact does not warrant interference with the determination of the jury.’ [Citing cases.] * * * The circumstantial evidence produced convinced the jury beyond a reasonable doubt under the instructions of the court of the guilt of the appellant, and it is not the province of an appellate court to overturn such a conclusion, except it be determined that there was no evidence to sustain it. People v. Tom Woo, 181 Cal. 315, 184 P. 389. * * * The right to draw proper inferences from the evidence is a function of the jury; and as long as its conclusions do not do violence to reason, and appellate court is not permitted to substitute its finding of the ultimate fact for that reached by the constitutional as well as the statutory arbiter thereof. Circumstantial evidence may be as convincing in its force and as conclusive as the testimony of witnesses to an overt act. People v. Kneiling, supra [127 Cal.App. 151, 15 P.(2d) 561.]”

We thus observe that the decision in People v. Tom Woo, supra, has been cited with approval since the decision of the case of People v. Lamson, supra.

The jury was entitled to believe that Kirk had from twenty to twenty–five dollars on his person the night prior to the murder; that he took the money to bed with him and that the next morning most of this money was missing from his person. They were therefore justified in concluding that he had been murdered in the course of being robbed. This, of course, would be murder in the first degree. Pen.Code, § 189. The physical evidence demonstrates that the money was not taken either with his consent or without force.

In view of all the evidence, including the evidence of fresh scratches and cuts on the face, neck, and upper body of the defendant, his denial that he had been in a fight the evening or day before the murder, and the evidence that the murdered man had human flesh and blood beneath his fingernails immediately after the murder, the circumstances strongly connect the defendant with the crime. Applying the rules above stated to the evidence, we think there was clearly sufficient evidence upon which the jury was entitled to find, and did find, the defendant guilty of murder in the first degree.

During the closing argument of the district attorney a certain portion thereof was stated in the form of a question and counsel for the defense interrupted, and the following colloquy took place:

“Mr. Carter: If you are asking me a question I would like the opportunity of answering you.

“Mr. Kavanaugh: I will have to ask you not to interrupt me.

“Mr. Carter: Then don't ask me any questions.

“Mr. Kavanaugh: I will ask you all the questions I want to.

“Mr. Carter: If you do I will answer them.

“The Court: No, you won't.

“Mr. Kavanaugh: I am addressing myself to the jury and Mr. Carter knows it well.

“The Court: There is no necessity for this discussion between counsel. Proceed with the argument.

“Mr. Carter: I except to counsel's remarks and to the remarks of the Court.”

It seems obvious to us that this was a rhetorical question and that the district attorney made this clear in his reply to the defense counsel inquiries. In any event, the court was not requested to instruct the jury to disregard the same and no error could be predicated thereon under the circumstances.

We think the evidence respecting the finding of the money in the pepper tree, although it was found some eighteen days after the murder, was admissible in view of all the other evidence and evidence of the opportunity of the defendant to have placed it there. The weight of the evidence and the inferences to be drawn therefrom were peculiarly for the jury to pass upon. This entire matter was a circumstance which the jury had a right to consider along with other circumstances and evidence in arriving at their verdict.

Photographs of the premises where the offense was committed, taken February 17, 1936, were admitted in evidence, and it is claimed that this was error because the building and the grounds around it had been changed. However, this could not possibly prejudice the defendant as other photographs of the same premises taken the day after the alleged murder were also in evidence, and what the changes were, were not only obvious but demonstrable.

The defendant was not permitted to testify that he had been promised a job to go to work on the morning of December 31, 1935. Defendant also attempted to prove by a Mr. Flynn that for several weeks prior to the murder Flynn had been acting as a banker and had a considerable cash deposit of deceased's money in his possession at the time of the alleged murder, and that Kirk had referred to defendant as “his boy.” Defendant contends that all of these matters are admissible in evidence as bearing on defendant's motive and the refusal of the trial court to admit them constitutes reversible error. Appellant relies upon the case of People v. Kelley, 208 Cal. 387, 281 P. 609, as justifying the admission of this evidence. In that case the sole question was the motive, as the commission of the crime had been brought home to the defendant.

In the instant case the only motive involved was robbery of the murdered man. Anything that bears on robbery as a motive was of course admissible, but evidence on other motives was not admissible. This, we think, is the true rule and is not in conflict, but in accord, with the rule laid down in People v. Kelley, supra. If this be the correct rule, then it is difficult to see how evidence that the deceased had other money, not in his possession, could bear on robbery as a motive for the commission of the crime. The same can be said of the evidence of Mr. Flynn that the deceased referred to the defendant as “his boy,” which, so far as the evidence shows, had never been communicated to the defendant. It is not so clear that the evidence that the defendant was promised a job for the next day was inadmissible as bearing on motive for robbery, but certainly it was not prejudicial or reversible error to exclude it.

Defendant called Mrs. Ireton to the stand and asked her what the defendant had said to her when he came to her house at about 6:15 on the morning of the murder which was at least a half hour after Kirk had died. On objection being made she was not allowed to give this evidence. Defendant contends that it is admissible under the res gestæ rule. “The rule [res gestæ] is familiar and permits the declarations of the defendant to be shown where they are so closely connected with the main event as to appear wholly unpremeditated and spontaneous.” People v. Dad, 51 Cal.App. 182, 196 P. 506, 509. It may be stated that where it is the event speaking through the person and not the person telling about the event that such declarations are part of the res gestæ and admissible in evidence. There had been sufficient elapsed time to allow the defendant to think over the event, and in fact he had left the immediate scene of the crime and had sought some person to tell of the event. Under these circumstances the trial court was correct in ruling that the conversation was not a part of the res gestæ and that the same was inadmissible as self–serving declarations.

The trial court did not err in refusing to admit evidence of threat made on the life of Kirk by persons other than defendant shortly before the murder. The rule is clearly laid down in People v. Mendez, 193 Cal. 39, 223 P. 65, 70, where the Supreme Court said: “The trial court expressed the view that evidence tending merely to show that persons other than the defendants may have had a motive for the commission of the crime was inadmissible unless coupled with other evidence having an inherent tendency to connect such other persons with the actual commission of the crime. * * * We are inclined to agree with these conclusions of the trial judge. We do not find any California case directly in point upon the question whether evidence of motive upon the part of some one other than the defendant for the commission of the crime charged is admissible, in the absence of other evidence tending to connect such other persons with the commission thereof. ‘It is always proper to show that some other person, and not the defendant, committed the crime with which he is charged.’ People v. Mitchell, 100 Cal. 328, 333, 34 P. 698, 700. The question herein is what kind and quality of evidence is essential to that end. * * * It seems clear that a defendant, in order to exculpate himself, should not be required to establish the guilt of a third person with that degree of certainty requisite to sustain a conviction of the latter. On the other hand, it seems equally clear that evidence which simply affords a possible ground of possible suspicion against another person should be inadmissible. The decisions in other states are not completely harmonious upon this question. But they are substantially unanimous in holding that mere evidence of motive in another person, or of motive coupled with threats of such other person, is inadmissible unless coupled with other evidence tending to directly connect such other person with the actual commission of the crime charged. See notes to 1 Wigmore on Ev.(2d Ed.) §§ 139–142. The learned author criticizes the rationale of these decisions somewhat severely, but concedes that they are substantially unanimous upon this point. It seems to us that there is a sound basis for this rule and that it rests fundamentally upon the same consideration which led to the early adoption of the elementary rules that evidence to be admissible must be both relevant and material. It rests upon the necessity that trials of cases must be both orderly and expeditious, but they must come to an end, and that it should be a logical end. To this end it is necessary that the scope of inquiry into collateral and unimportant issues must be strictly limited. It is quite apparent that if evidence of motive alone upon the part of other persons were admissible, that in a case involving the killing of a man who had led an active and aggressive life it might easily be possible for the defendant to produce evidence tending to show that hundreds of other persons had some motive or animus against the deceased; that a great many trial days might be consumed in the pursuit of inquiries which could not be expected to lead to any satisfactory conclusion.”

The trial court did not abuse its discretion in permitting the jury, over the objection of defendant, to view the scene of the crime. Although there had been some changes in the building, the changes were not material to the contentions of the defendant. The trial court by consent of counsel pointed out different objects and described them. Certainly no abuse of discretion appears. In the case of People v. Pompa, 192 Cal. 412, 221 P. 198, 202, it is said: “The fact that physical conditions upon or about the premises may have been to any degree altered is a fact to be considered by the trial court in exercising its discretion to permit or refuse to permit such view, and its conclusion in that regard will not be disturbed upon appeal, in the absence of a clear showing of an abuse of such discretion. No such abuse of discretion is disclosed by the record in this case.”

An examination of all of the instructions and comments of the trial court on the evidence leads to the conclusion that these comments were all within the constitutional limitation and within the limitation approved by the Supreme Court in People v. De Moss, 50 P.(2d) 1031. While the trial court commented somewhat on the weight of the evidence, it at all times impressed upon the jury that they were the sole judges of the fact and that they should accept defendant's story if they believed it. This admonition was given at the introduction of the instructions, at the time comments were made upon the evidence, and at the conclusion of such comments. The comments made seem to coincide with the purpose and spirit of the constitutional amendment permitting the same. An example of the caution exercised is contained in the following statement of the trial court: “I wish to warn you again, ladies and gentlemen, that nothing I can say or should say indicates what I would believe or what I would do if I were on the jury. It is merely for the purpose of directing your attention, if I may, to what seems to me to be the crucial points in the testimony in this case.”

Appellant contends that the trial court erred in instructing the jury that they could either return a verdict of guilty of first–degree murder, or a verdict of not guilty. In view of the evidence that Kirk was not only murdered but also robbed at the same time, if the jury believed defendant committed the crime, the only verdict they could possibly have returned was one of guilty of first–degree murder. People v. Petro (Cal.App.) 56 P.(2d) 984. See, also, People v. Mott, 211 Cal. 744, 297 P. 23.

While appellant complains of the trial court's refusal to give certain requested instructions, we find that the same matters were fully covered in other instructions. This was sufficient. People v. Garcia, 2 Cal.(2d) 673, 42 P.(2d) 1013.

The other alleged errors complained of by appellant respecting the admission or failure to admit evidence do not seem substantial and in no way affect the merits of the case.

The judgment and the order denying new trial are affirmed.

TURRENTINE, Justice pro tem.

We concur: BARNARD, P. J.; JENNINGS, J.

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