PEOPLE v. PAIVA

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District Court of Appeal, Third District, California.

PEOPLE v. PAIVA.

Cr. 1434.

Decided: August 15, 1935

Clinton W. Johnson and George Foote, both of Sacramento, for appellant. U. S. Webb, Atty. Gen., for the People.

The defendant was convicted on three counts as charged in an information which was filed against him and sentenced to state prison for life. The first count charged him with the murder of his seven year old sister Marion. The second count charged him with the murder of his six year old sister Mary, and the third count charged him with the rape of his sister Marion. Notice of appeal from the judgment which was accordingly rendered and from the order denying a motion for new trial was duly filed.

The cause was set for hearing before this court for June 24, 1933, at which time George W. Foote, Esquire, was substituted as attorney for the defendant. At his request the defendant was granted fifteen days in which to file his opening brief on appeal. The cause was not orally argued. No brief has been filed in behalf of the defendant within the time allowed or at all. The cause was duly submitted.

In spite of the fact that the case was not argued and that no brief was filed in behalf of the defendant, on account of the seriousness of the charges of which the defendant was convicted, the transcript of evidence and proceedings has been carefully examined. We are unable to find that it contains any reversible error in procedure, rulings, or instructions, and it therefore becomes necessary to affirm the judgment.

It appears that the defendant, who was sixteen years of age, resided with his parents in Sacramento. The family consisted of several children, including Marion, aged seven years; Mary, aged six years; and Alfred, aged about fourteen years. September 1, 1934, the defendant's parents left their home at 4 o'clock in the afternoon to pick hops at a ranch nearby. The defendant and his brother Alfred, together with the two named sisters, were left at the house. The following day the defendant and his brother Alfred appeared at the hop ranch about 1 o'clock in the afternoon. The entire family returned to their home where they arrived at 8 o'clock in the evening. It does not appear that the parents had previous information regarding the death of the little girls. Entering the kitchen, the parents discovered the remnant of a cake of ice and the shelves which had been removed from the ice box. Opening the ice box the bodies of Marion and Mary were found therein. Both of the children were dead. A physician was called and made a post mortem examination of the children. There is ample evidence to sustain the verdicts against the defendant of his conviction of rape upon the person of his sister Marion and of the murder of both children. The record sustains the charges and satisfactorily indicates that the defendant, after committing the crime of rape upon the person of Marion, removed the ice and the shelves from the large ice box and placed both children therein, closing the door upon them and thereby causing them to suffocate. After an investigation of the circumstances, Sevrino was arrested and placed in jail.

On September 11th the defendant made a voluntary confession to one of the inmates of the jail, who communicated this statement to the sheriff. On the same day this confession was repeated to the officers by the defendant. Four witnesses, including the sheriff and Ralph Clark, a newspaper reporter, testified that this confession was made by the defendant voluntarily with the statement that he wanted to tell the truth because he felt better on that account. This confession was then written out and carefully read and discussed with the defendant, who thereupon voluntarily signed it in the presence of five other individuals. The written confession reads as follows:

“I got the two of them and put them in the ice box and shut the door. The reason that I put them there was because I started to rape them then changed my mind. And I was out of my head. That is the reason I done it. My brother was with me when I done it then we went up the hill with my bicycle and then we went over to the hop fields and that was all. Also while I was doing it my brother kept telling me not to do it.

“Piva

“Sirevino

(Upon the reverse side:)

“Witnesses

“James Jardin

“Joe Perkins

“Sept. 11, 1934. Foregoing confession admitted in presence of James Jardin, Joe Perkins, Ralph Clark, James Hester and Donald Cox.

“Donald Cox.”

Another separate confession in approximately the same language was subsequently written out and signed by the defendant. There appears to be no doubt that he fully comprehended the nature of this confession and that it was not procured by threats, undue influence, or an offer of reward. It is corroborated by all of the circumstances disclosed by the record.

The judgment and the order are affirmed.

Mr. Justice THOMPSON delivered the opinion of the court.

I concur: PULLEN, P. J.

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