Reset A A Font size: Print

District Court of Appeal, Second District, Division 2, California.


Cr. 4073.

Decided: January 14, 1947

Ben Van Tress and James R. Jaffray, both of Los Angeles, for appellant. Robert W. Kenny, Atty. Gen., Frank Richards, Deputy Atty. Gen., Fred N. Howser, Dist. Atty., Jere J. Sullivan, Robert Wheeler and J. Miller Leavy, Deputies Dist. Atty., all of Los Angeles, for respondent.

From a judgment following a verdict of guilty of murder in the first degree, with a recommendation that the defendant be placed in the state prison for life, after trial before a jury, defendant appeals. There is also an appeal from the order denying his motion for a new trial.

The evidence which is entirely circumstantial, indicates that the deceased, Mrs. Struck, placed a ‘lonely lady’ advertisement1 in the personal column of the Los Angeles Times, which notification appeared several times during the months of October and November, 1942, and in the early part of 1943. Defendant answered one of the advertisements; however, he claimed that he did not meet her as a result of the notice but met her at a restaurant which she operated.

In December, 1942, or the first part of January, 1943, defendant leased a restaurant building which he owned, known as ‘Oh Johnnie's Cafe’, to Mrs. Struck for the term of five years, her to pay him as rental 5% of the gross profits. The relationship between defendant and his tenant was not a satisfactory one and it was mutually agreed that she should surrender the premise on March 25, 1943; however, Mrs. Struck had foodstuff in the cafe and it was decided that she could stay for a short time thereafter. On March 22, or 23, 1943, defendant served Mrs. Struck with an eviction notice. Frequently during the period of Mrs. Struck's tenancy defendant complained to neighbors that he wished he could get her out of his restaurant; that she was one of the dirtiest and filthiest women he had ever known.

Mrs. Hayden testified that she saw decedent on Saturday, April 3, 1943, at about 1:00 p. m. and that Mrs. Struck was in a hurry to leave the restaurant in order to go downtown. She did not see decedent alive thereafter, but later in the afternoon of April 3, 1943, when she passed by ‘Oh Johnnie's Cafe she saw on the door a sign which read, ‘Back later’.

At 9:35 a. m. on Sunday, April 18, 1943, defendant telephoned the Los Angeles Police Department and said that he had found the dead body of Mrs. Struck in his cafe. At about 10:00 a. m. police officers arrived at the cafe where they found the corpse. It was badly decomposed with the head badly crushed. There was a hole in the skull which, in the autopsy surgeon's opinion, was caused by the round part of a hammer that is used to drive a nail. There was a hammer on a shelf in the kitchen; however, the hammer was clean without any blood or hair upon it and failed on examination to reveal any fingerprints.

The only testimony tending to establish the identity of defendant as the murderer was that of Paul Farmer. At the time of the murder he was 15 years old and at the date of the present trial he was 18 years of age. He testified at this trial that on April 5, 1943, after covering his newspaper route he returned home at about 7:30 p. m.; that he had known and seen the defendant for two or three years and also knew Mrs. Struck by sight; that at about 7:35 p. m., while sitting by an open window in his bedroom listening to the radio, he heard unusual sounds coming from Oh Johnnie's Cafe; that the sounds were of ‘two people cussing each other’, and without looking out the window he listened for about a minute and had no trouble at all in hearing voices and in distinguishing Mrs. Struck's voice and a man's voice. Drawing back the curtain, he looked out the window and into the rear window of Oh Johnnie's Cafe storeroom which was about 20 or 25 feet distant. Through this window he could see into the cafe's dining room. Defendant was standing directly in front of Mrs. Struck, facing her and about a foot from her with his back toward the witness. The witness testified that he recognized the voice of the man as the voice of defendant; that defendant was visible from the back of his neck down to his knees. He heard the decedent in a loud voice cry, ‘No, no’, raising and moving her hands away from her body with the palms out. Defendant was not seen to change his position or strike Mrs. Struck. After a few minutes the witness pulled the curtain back on the window so that he could not see across into the storeroom and returned to listening to the radio. After two or three minutes he heard the loud cry of a woman coming from the cafe. He thereupon turned out all the lights in his house, pulled the curtain back, and for about five or ten minutes looked in the storeroom window. Though the lights were still on in the cafe he could not see anyone since the storeroom window was covered by something which obstructed his vision. After about five minutes the lights went out in the cafe and after watching a few minutes and not seeing anyone leave he became frightened, turned on all the lights in his house and went to bed.

This witness, who at the time he testified was on probation after conviction of a criminal offense, had testified before the grand jury in November, 1943, that in looking out of his window on April 5, 1943, into Oh Johnnie's Cafe he had seen only part of an arm of a man and that the man's voice he had heard was not that of defendant. He gave similar testimony at a prior trial2 of the present case in January, 1944. December 15, 1943, he stated to Mr. Hyde and Mr. Mason that defendant was not the man whose voice he had heard on the evening of April 5, 1943. In March, 1945, and in March, 1946, he made a similar statement to Mrs. Elsie Weatherford.

Defendant took the witness stand in his own behalf and testified that he did not strike the decedent.

Defendant relies for reversal of the judgment, among others, on the proposition that the trial court committed prejudicial error in instructing the jury as follows:

‘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. The intent or intention is manifested by the circumstances connected with the offense, and the sound mind and discretion of the accused. All persons are of sound mind who are neither idiots, nor lunatics, nor affected with insanity.

‘The willful use of a deadly weapon without excuse or provocation, in such a manner as to imperil life, generally indicates a felonious intent.’

This proposition is tenable. The same identical language was condemned by the Supreme Court in People v. Peterson, 29 Cal.2d 69, 173, P.2d 11, the court speaking through Mr. Justice Schauer saying, at page ___ of 29 Cal.2d, at page 16 of 173 P.2d, ‘* * * That the instruction * * * should not be given in a case such as this, where defendant does not concede participation in the transaction.’

The erroneous instruction did not cause a reversal of the judgment in the Peterson case for the reason, as stated by the court, that the case was not ‘A close one and no miscarriage of justice is shown as result of the giving of the instruction.’

In the instant case defendant specifically denied participation in the crime and it cannot be questioned that such erroneous instruction was prejudicial in view of the fact that the evidence is entirely circumstantial and the only evidence identifying defendant as a participant in the crime was given by the witness Farmer, an admitted perjurer.

For the foregoing reasons the judgment and order must be reversed.

Request of Attorney General for Review of Rulling of the Trial Court

The attorney general has requested this court pursuant to the provisions of section 12523 of the Penal Code to pass upon a ruling of the trial court on the exclusion of evidence.

Defendant was called to the witness stand in his own defense and testified as follows:

‘By Mr. Van Tress:

‘Q. Did you ever strike a woman by the name of Mary A. or known as M. A. Struck? A. No, sir.

‘Mr. Van Tress: You may cross examine.’

On cross-examination the district attorney offered in evidence a hammer marked Exhibit 8 to which defendant objected and the object was sustained. The court's ruling was correct. The record is devoid of any evidence which would indicate that the exhibit was used in connection with the murder.

The judgment and order are and each is reversed and the cause is remanded for a new trial.


1.  This is an example of the advertisement:‘Lone lady of means meet refined business man, fifty to sixty, Box-Y–100-Times.’

2.  For proceedings on a previous appeal see People v. Weatherford, 27 Cal.2d 401, 409, 164 P.2d 753.

FN3 Section 1252 of the Penal Code reads in part thus:‘On an appeal by a defendant, the appellate court shall, in addition to the issues raised by the defendant, consider and pass upon all rulings of the trial court adverse to the state which it may be requested to pass upon by the attorney general.’.  FN3 Section 1252 of the Penal Code reads in part thus:‘On an appeal by a defendant, the appellate court shall, in addition to the issues raised by the defendant, consider and pass upon all rulings of the trial court adverse to the state which it may be requested to pass upon by the attorney general.’

McCOMB, Justice.

MOORE, P. J., and WILSON, J., concur.

Copied to clipboard