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District Court of Appeal, Second District, Division 3, California.


Cr. 4805.

Decided: September 17, 1952

William B. Esterman, Hollywood, and Richard L. Rykoff, Los Angeles, for appellant. Edmund G. Brown, Atty. Gen., and Dan Kaufmann, Deputy Atty. Gen., for respondent.

Defendant was accused in count 1 of assault with a deadly weapon and in count 2 of robbery. The jury found defendant guilty as charged in each count, and it found that the offense charged in count 2 was robbery of the first degree. Defendant's motion for a new trial was denied. The notice of appeal recites that defendant appeals from the order denying his motion for a new trial, and from the judgment and sentence. Since an appeal from a sentence is not authorized, the purported appeal therefrom will be dismissed. People v. D'Elia, 73 Cal.App.2d 764, 766, 167 P.2d 253.

Some of appellant's contentions are: that the court erred in receiving three photographs in evidence; the deputy district attorney committed prejudicial misconduct in cross-examination of character witnesses; and the court erred in receiving defendant's alleged confession in evidence.

On May 12, 1951, about 1:40 a. m., police officers Judd and Bunda were in an automobile, traveling east on Venice Boulevard in Los Angeles. As they approached the intersection at Thurman Avenue, they saw a 1935 Ford automobile, without lights, proceeding north on Thurman and approaching said intersection. One of the officers testified that when he first saw the automobile it was about 100 feet from the intersection and traveling about 20 miles an hour. There was a stop sign at the intersection, requiring traffic on Thurman Avenue to stop. The headlights of the Ford were turned on when the Ford arrived at the intersection, and the Ford, without making the boulevard stop, turned to the right and proceeded east on Venice about 20 feet ahead of the police automobile. A red light, which was on the police automobile, was turned on and then the Ford increased its speed to approximately 40 miles an hour. The officers followed the Ford, sounded the horn, and flashed a spotlight. The Ford turned to the right onto Curson Avenue, which is two blocks from Thurman, and when on Curson it turned to the right again and went into a private driveway on Curson and crashed through a wire gate which was about 5 feet high. It then continued along the driveway, swerved to the side of the garage and came to a stop against the south fence in the rear yard. The officers stopped their automobile in the driveway and went into the rear yard. Defendant got out of the right side of the Ford. One of the officers testified that as defendant got out of the automobile he threw an article over the south fence and then ran toward the rear (west) fence; he commanded the defendant to stop and defendant stopped against the rear fence; he asked defendant what was wrong with him and what he had thrown over the fence, and the defendant stated that he was drunk and that he had not thrown anything over the fence. They handcuffed the defendant and, while one officer took him to the police car, the other officer went into the adjoining yard to a place, about 40 feet from the Ford, where he found a lady's red purse. He took the purse to the police car and asked defendant where he got it. The officers testified that defendant replied that he had taken it from a parked automobile. One of the officers searched the Ford and found a baseball bat in the rear of it. The officers took defendant to the police station.

Officer Barclay, who questioned defendant at the station about 2:45 a. m., testified that defendant stated that he took the purse from the seat of an automobile, and then he stated that he took the purse from a woman; he asked defendant if he struck the woman, and defendant said, ‘Yes'; the defendant stated that he struck the woman with his fist, she did not scream, she fell down and did not get up; he thought he could direct the officers to the vicinity of the happening. Then the defendant and the officers, who arrested him, left the station in an automobile. One officer testified that they went to Venice and Thurman and asked the defendant if he could recognize the place where he struck the woman; defendant replied that everything looked about the same; then they went to a motel, at an address which was found in the purse, but no one was home; they returned to Thurman and drove toward Venice; when they were about 300 feet south of Venice, the defendant stated that a bush on the parkway looked familiar; they saw a lady, Adalyn Hickson, lying on the lawn; she was unconscious; blood was on her head, face, and clothing, and on the sidewalk; defendant said, ‘She isn't dead, is she? She's dead? Why don't you shoot me’; other officers arrived at the scene and he (witness) heard one of them ask defendant what he hit the lady with, and defendant said that he hit her with a baseball bat; the other officer asked where the bat was, and the defendant replied that he left it in the rear of his car. Another officer testified that about 3:45 a. m. he removed a baseball bat from defendant's car.

Officer Fitzsimon testified that he had a conversation with defendant on the sidewalk near the place where the victim was lying; he asked defendant if he was responsible for the condition of the woman who was lying on the lawn, and defendant replied, ‘I guess so,’ and said, ‘I don't know what made me do it.’

The officers and the defendant returned to the police station about 4:30 a. m. Officer Barclay testified that at 5:30 a. m. he had a conversation with defendant in the presence of officer Fitzsimon and a stenographer; after the conversation the questions and answers were typed by the stenographer; he (officer) handed the typewritten document, consisting of five pages, to defendant, told him to read it, and requested him to sign each page of the document if it was O.K.; defendant signed his name at the bottom of each page of the document; the statements of the defendant in said conversation were made freely and voluntarily; no promises were made to him, no force was used, and no threat was made. In said document, which was signed by defendant, it was stated that the defendant and a bunch of fellows got together and celebrated a wedding; defendant had six or seven drinks of whisky; when defendant left the party he went to his brother-in-law's house to see if his (defendant's) wife had returned from another wedding party; his wife had not returned, and defendant drove toward Culver City; when he was beyond Helms Bakery and on a street, which he thought was Venice Boulevard, he turned around and started back to the place where he was to get his wife; when he was driving down that street he saw this woman (the victim), who had just turned the corner from Venice Boulevard, walking along the sidewalk on a side street; defendant pulled around the corner, at Venice and the side street, and stopped his car; he got out of the car with a baseball bat in his hand, walked up behind the woman and hit her on the head; after she fell he grabbed her purse, and then he ran; when he was driving away he dropped the purse on the floor of the car; he was on Venice when the radio car officers started to chase him; he turned the corner, lost control of the car, could not stop it and could not steer it; he hit something and his car stopped; he jumped out of the car and threw the purse away; he went with the officers to assist them in locating the victim; he did not know exactly the location where the woman was lying; they just cruised the street until he saw something; he recognized some shrubbery, and the location appeared to be the same location where he was before. The officer testified further that the statements of the defendant in the said document were statements which the defendant made in said conversation with the officer.

Officer Brennan testified that at 10:30 a. m. on May 12th showed the said five-page statement to defendant and asked him if his signature was on each page; defendant replied, ‘Yes'; he asked defendant if the statement was a true statement of what had occurred, and defendant replied that it was as true as he could remember; he asked defendant to tell again what had taken place; defendant then said, among other things, that he saw a woman go down a side street, he turned down the side street and followed her with his car, parked the car, picked up the bat which he had in the back of the car, hit her on the head, knocked her down and took her purse, then got in the car and drove away; the police car chased him and his car got smashed up; he threw the purse away; the officers caught him and brought him to the station.

Mrs. Hickson testified that on May 12, 1951, about 1:30 a. m., she got off the bus on the north side of Venice Boulevard, walked to the south side of Venice, then walked one block east on Venice to Thurman; then she walked south on the west side of Thurman; she heard light footsteps behind her, and before she had time to look around she was struck; at the time she was struck she was carrying her purse in which there were two social security cards, a billfold, a cosmetic case, a pen and a watch; the purse, exhibit 1, is her purse and she was carrying it when she was struck.

A physician testified that he examined Mrs. Hickson at the hospital; she had an extensive cut in the back part of her head and a fracture of the left side of her skull; and the cut probably was made by something blunt.

Officer Allen testified that he had been assigned to the scientific investigation bureau of the police department as a chemist for about 11 years; he examined the baseball bat, exhibit 3, and found that there was human blood on it about 4 inches from the end, and that there is still evidence of the bloodstain thereon.

Defendant testified that he is 25 years of age; he was employed by Los Angeles County as a playground director; on May 11th, when he left the playground, athletic equipment, including a baseball bat, was in his car; on that day he arrived home about 7:30 p. m., and then waxed the floors of his house; about 10 p. m. he left his home and went to a party that was being given for a friend who was to be married the next day; he had six or seven drinks of whisky at the party; his wife attended a wedding party at another place; he left his party about 1:30 to get his wife, who was to meet him at the home of his brother-in-law; when he arrived at that place his wife was not there; then he drove west on Washington Boulevard to Culver City and then went north to the Helms Bakery on Venice Boulevard; then he went east on Venice Boulevard approximately two miles at which place he noticed the reflection of a red light in his rear view mirror and he became aware that a police car was behind him; at that time he was about 100 feet west of Curson Street and he was traveling about 25 miles an hour; he then tried to stop his car but the brakes failed, and the car continued on at the same speed; he thought of jamming the car against the curb to stop it, but at that time he was at the corner of Curson so he ‘swung around the corner to put my [his] plan into action’; he swung too wide and a front wheel hit the opposite (or east) curb of Curson, and the impact swung the car back into the street and he went into a driveway on the west side of Curson, through the gate, into the rear of the property, and up against the south fence; he got out on the right side of the car because there was no door handle on the left side; he heard some one say, ‘Halt,’ and an officer asked him if he was drunk; the officer placed handcuffs on him, took him to the other officer who was there and they took him to the police car; one of the officers went into the adjacent yard, and when he returned he showed a lady's purse to the defendant and asked him if he had seen it; he (defendant) replied that he had never seen it; the officers took him to the police station; officer Barclay examined the contents of the purse, and gave officer Judd a card with an address on it and told him to take the defendant to that address and see if the person there could identify him; officers Judd and Bunda took him to a motel which was in the general direction of Curson Street but no one was home; then they went north on Thurman toward Venice; while they were on Thurman, officer Judd said that he thought he saw something; then he jumped out of the car and ran across the street, and said something about finding a woman; they took defendant to the place where the lady was lying on the lawn; they told him to stand behind the lady, and then they took some pictures; he (defendant) denied that he hit the lady; they took him to the police station and told him to stand in the corner facing the wall; he stood in the corner for a considerable time, and then photographers came and said they wanted to get some pictures; the bat and the purse were placed upon the desk in front of him, and pictures were taken; then he was required to stand in the corner for 45 minutes; then, after taking his fingerprints, he was required to stand in the corner about 40 minutes; during the time he was in the corner, the officers would not allow him to sit or lie down or get cigarettes or a drink of water; about 5:30 a. m., officer Barclay, after telling him that if he would cooperate he would get the softest bed in the house, took him to another room and, in the presence of officer Fitzsimon and a stenographer, told defendant he was going to take a statement; then the officers began to formulate the questions and type of answer they wanted; defendant was very tired and sleepy at that time; they asked him questions, and he gave answers; about an hour after questioning him, one of the officers placed a document before him and told him to sign it; he signed each of the five pages of the document without reading them. Defendant denied that he told officer Brennan or any one that he saw the woman, or that he followed her, or that he hit her or took her purse.

On rebuttal, officer Judd testified that he drove defendant's car out of the rear yard, and he was able to stop it satisfactorily.

Appellant contends, as above stated, that the court erred prejudicially in receiving in evidence three photographs, exhibits 4, 5 and 6. The photographs, exhibits 4 and 5, were taken by newspaper photographers at the scene of the crime, after the officers and the defendant had been to the police station and had returned to Thurman Avenue. Exhibit 4 shows: (1) the victim sitting on the ground, with a white bandage around her head, with her left hand on her forehead, and with dark spots, which appear to be blood, on her face, hand and clothing; (2) two uniformed police officers and another man standing around and facing the victim; and (3) the defendant standing back of one of the officers, facing directly toward the ground where he is standing (not toward the victim), with his left hand upon his forehead. Exhibit 5 shows: (1) the victim lying on a stretcher (on the sidewalk), with a bandage on her head; (2) five uniformed police officers and two other men standing around and facing the victim; (3) the defendant and a uniformed police officer standing about 10 feet from the victim,—the defendant, facing away from the victim, and having a handcuff on his right hand, and the officer holding the other end of the set of handcuffs. Exhibit 6, which was taken at the police station, shows: (1) the defendant standing back of a counter in a small room, facing downward; and (2) a baseball bat and a lady's purse upon the counter. Appellant argues that the photographs conveyed to the jury inferences as to which no one could properly testify; that exhibits 4 and 5, by depicting appellant close to the bleeding victim, served to connect the appellant with the victim in a graphic manner; that exhibit 6, by ‘depicting the appellant with a baseball bat in his hands,’ etched upon the minds of the jurors the connecting link between appellant and the crime; that thereby ‘a feat which no admissible evidence could accomplish directly was perpetrated in an indirect and backhanded manner.’ The general rule is that photographs are admissible, within the trial judge's discretion, for the purpose of depicting the scene of the crime, the position and physical condition of the victim, and the kind of weapon allegedly used. See People v. Smith, 15 Cal.2d 640, 649, 104 P.2d 510. The photographs herein do not purport, of course, to be photographs taken during the commission of the crime. The photographs referred to as exhibits 4 and 5 were taken after the defendant had been taken from the police station to the scene of the crime. It was not necessary to have the defendant in those photographs in order to depict the scene of the crime, or the position or physical condition of the victim; and it was not necessary to have him in the other photograph, exhibit 6, in order to depict the kind of weapon allegedly used. (It is to be noted, with respect to that photograph, that the defendant did not have the bat ‘in his hands,’ as asserted in appellant's brief.) Under the circumstances here, the photographs should not have been received in evidence. The presence of the defendant in the photographs, under the circumstances here, did not possess any evidentiary value and did not tend to clarify any of the evidence presented. His presence therein was not relevant, and the admission of the photographs in evidence placed an additional and uncalled for duty upon the jurors to disregard the presence of the defendant in the photographs. His presence therein would tend to create confusion in the matter of separating such irrelevant evidence from the relevant evidence therein as to the scene of the crime, the position and condition of the victim, and the kind of weapon allegedly used. The portrayal of such irrelevant evidence in combination with such relevant evidence might tend to excite the indignation and prejudice of jurors and prevent them from dispassionately considering material evidence. Also, such a portrayal might tend to create an inference that defendant was connected with the crime. The deputy district attorney is not to be commended for offering the photographs in evidence. It cannot be said, however, in view of the overwhelming evidence of guilt, that the error in receiving the photographs in evidence was prejudicial. Even if it be assumed that the photographs created an inference that defendant was connected with the crimes, they added very little to the strong case against the defendant.

Appellant asserts that the argument of the deputy district attorney compounded the error in admitting photographs in evidence. The deputy argued to the effect that one of the pictures shows that the condition of the woman was very bad at the time she was found; another picture shows ‘everybody at the scene, including the defendant’; and there is the picture of the defendant which was taken later at the police station. The error in receiving the photographs in evidence was not rendered prejudicial by the deputy's argument. Even if it should be assumed that it was misconduct to argue that one of the photographs showed defendant at the scene, it cannot be concluded that a miscarriage of justice resulted. In People v. McCracken, 39 Cal.2d 336, 246 P.2d 913, 920, it was said: ‘While the misconduct of the district attorney was serious, we cannot, in the face of the overwhelming evidence of defendant's guilt, come to the conclusion that it was so prejudicial as to have caused a miscarriage of justice.’

Appellant also contends, as above stated, that the deputy district attorney committed prejudicial misconduct in cross-examining defendant's character witnesses. Defendant's brother and sister testified, in substance, that defendant's reputation for peace and quiet was good.

In cross-examining the sister, the deputy district attorney asked her if she ‘ever heard of him being arrested.’ She replied, ‘Yes.’ He asked her how many times she had heard about him being arrested. She replied, ‘When he was in Richmond,’ and that she did not know what it was but she heard that it was dismissed. He asked her if she heard about him being arrested for anything else. She replied, ‘No.’ He asked if she heard about him being arrested for assault and battery in 1942. An objection to that question was sustained.

In cross-examining the brother, the deputy asked him if he had heard that his ‘brother was convicted of an offense.’ He replied, ‘No.’ The deputy then asked him if he had heard that from any one. He replied that when he (witness) was in San Francisco some fellows said something about defendant having a little trouble in Los Angeles, that he was in a little scrape. The deputy asked him if what he had heard would change his opinion as to defendant's reputation for peace and quiet. He replied, ‘No.’

Appellant argues that the deputy had no reasonable grounds for believing that appellant had been convicted, that the deputy did not act in good faith in asking the questions, and that such cross-examination could leave no doubt in any juror's mind that appellant had been convicted of assault and battery in Los Angeles in 1942. The record shows that prior to the time said character witnesses testified a police officer had testified regarding a conversation he had with appellant after his arrest in the present case; that the attorney for appellant, in cross-examining the officer, asked if the appellant said anything else in that conversation; that the officer replied that he asked appellant if he had been arrested before or if he had done any big time; that appellant replied that he was arrested in 1942 for assault and battery and he had done three months locally, and he was arrested in Richmond but the case was dismissed. Then the attorney for appellant asked the officer if he had inquired concerning the 1942 arrest any further than he had just stated. The officer replied, ‘No.’ Then the attorney asked if the appellant had also told the officer that at that time (1942) two policemen had beaten him into unconsciousness. The officer replied, ‘No.’ The attorney asked him if appellant said that in 1942 he was beaten up by two policemen who knocked out some of his teeth. The officer replied, ‘No.’ The attorney asked if a record indicated where the appellant did the three months. The officer replied that appellant said he did the three months locally.

It thus appears that, prior to the cross-examination of said character witnesses, the attorney for appellant brought the matter of prior conviction to the attention of the jury by his cross-examination of the officer. The deputy district attorney was not guilty of misconduct.

Appellant also contends, as above stated, that the court erred in receiving the alleged confession in evidence. He argues that the circumstances under which the alleged confession was obtained negate its having been given freely and voluntarily and without force. That argument is based upon testimony of the appellant to the effect that prior to obtaining the confession he was roughly handled by officers while handcuffs were on him and as a result his wrists were bleeding; the handcuffs had been applied too tightly; abusive language was used toward him by the officers; there was a continuous course of questioning him from the time of his arrest at 1:30 a. m. until he signed the confession at 6:30 a. m.; he was not permitted to lie down or sleep until after the confession was signed; he had had only a few hours' sleep on the previous night; he was subjected to force and brutality by the police.

Officer Barclay, who was present when appellant made the statements which are in the confession, testified that the statements of defendant were made freely and voluntarily, that no promises were made to him, no force was used and no threat was made; he (officer) made no statement of any kind to induce appellant to sign the statement; he (officer) handed the typewritten statement to defendant, told him to read it, and requested him to sign each page thereof if it was O.K. The officers, who were charged by appellant with using force, threats, and coercion to obtain the confession, denied those charges. Whether a confession was voluntarily made without any previous inducement or by reason of any intimidation or threat ‘is a preliminary question addressed to the trial court [citations], and a considerable measure of discretion must be allowed that court in determining it.’ People v. Mehaffey, 32 Cal.2d 535, 548, 197 P.2d 12, 19. As above shown, there was a conflict in the evidence as to the voluntariness of the confession. In the Mehaffey case, supra, it was stated 32 Cal.2d at page 554; 197 P.2d at page 23: ‘[N]ot only did the trial court upon conflicting evidence determine in the first instance the matter of the free and voluntary nature of defendant's several confessions, but the jury in its deliberations likewise reached the same result in its final analysis of the question under the court's charge, and the issue as so resolved against defendant will not be disturbed on appeal.’ In People v. Dabb, 32 Cal.2d 491, at page 497, 197 P.2d 1, at page 4, it was said: ‘It was the function of the jury to weigh the testimony of the defendants and that of the police officers in determining whether the confessions were voluntarily given [citation], and the verdict of guilty shows that the conflict was resolved by the jury against the defendants.’ There was substantial evidence that the confession was given freely and voluntarily. The court did not err in receiving the confession in evidence. The implied finding of the jury that the confession was voluntarily and freely given will not be disturbed on appeal.

Other contentions of defendant are not substantial and do not merit particular discussion.

The judgment and the order denying the motion for a new trial are affirmed. The purported appeal from the sentence is dismissed.


SHINN, P. J., and VALLÉE, J., concur.

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