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

The PEOPLE of the State of California, Plaintiff and Respondent, v. Charles Wesley FURNISH, Defendant and Appellant.

Cr. 9029.

Decided: August 27, 1964

Mark F. Joseff, Downey, Arnold P. Mordkin, Fullerton, Don Harper Mills, Los Angeles, and Max Hara, Fullerton, for appellant. Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Gordon Ringer, Deputy Atty. Gen., for respondent.

Defendant appeals from the judgment entered following a jury trial which resulted in his conviction of the crime of murder of the second degree. His plea of not guilty by reason of insanity and his motion for a new trial were voluntarily withdrawn prior to any ruling thereon. Appellant urges only two grounds for a reversal: (1) that there was insufficient proof of the corpus delicti, and (2) that his confession was involuntary and therefore erroneously received in evidence.

The record discloses that the decedent, Star Furnish, was the twenty-month old daughter of appellant and his wife, Nancy. This child was the youngest of their four children. Apparently she was unwanted and had been a cause of dissension in the family since her birth. At about 1:15 p. m. on May 10, 1962, a nurse working for a Dr. Presser received a telephone call from appellant's wife in which the latter stated that her daughter Star had been found dead with a plastic bag over her head. When Dr. Presser arrived at appellant's residence, he found the deceased child lying on her back in her crib with a plastic bag over her head which had been ripped diagonally across the face. There were droplets and a film of moisture on the bag.

Dr. Presser noticed that rigor mortis already had set in and, although he formed an opinion that Star had died at least six to twelve hours earlier, he mistakenly told the officer that she had died two to six hours earlier. It was reported that appellant had left for work at 6:30 a. m. that morning. Mrs. Furnish testified that although she had ‘peeked’ into the room twice during the morning, she had not observed the plastic bag and had assumed that the child was ‘merely sleeping’. The child had been ‘fussy’ with a cold for several days and had a ‘runny nose’. The mother testified further that when she entered to awaken her child, she observed the bag and immediately tore it open and away from its face; that she then realized that the child was dead and thereupon immediately called her husband and the doctor.

One of the investigating officers testified that he had found a bag identical in size and texture to the one found on the child's head in a kitchen drawer of the home. At the coroner's office, this officer attempted to place this second bag over the dead child's head while she was lying supine but was unable to do so. However, when the body was lifted to a sitting position, the officer was able to place the bag over her head, although it was tight and he had ‘to work it down sideways' to get it past her forehead. In his opinion, based upon these experiments, the child could not have put the bag over her own head.

An autopsy revealed that the child had died the preceding evening within two to four hours after her last meal. The forensic pathologist, who performed the autopsy, found fragments of ciliated columnar epithelial cells emanating from the respiratory system on the plastic bag thus establishing that the child had been alive when the bag was placed over he head. He identified the moisture found on the inside of the bag as a secretion from her nostrils or mouth. He found no evidence that she was suffering from pneumonia or that she had died from acute interstitial pneumonitis. He testified that in his opinion the cause of death was asphyxiation caused by the plastic bag covering.

When one of the investigating officers learned the results of this autopsy, fixing the time of death earlier than that originally indicated, he telephoned appellant and asked him to come to the station to talk with him further. (Appellant's wife had been held for investigation of the murder following the reports initially received by the officers the preceding day.) This officer testified that, following two extended conversations held that afternoon, appellant admitted killing his child and that this original conversation and the subsequently reported confessions and reenactments were free and voluntary on appellant's part and were given without any promise of immunity or reward.

In his recorded confession, the transcript of which he had signed, appellant told the officers that he felt very close to Star at the time of her birth but that his feelings changed into hate, an emotion which split up the whole family because Star was neither planned for nor wanted. He said that the idea of killing her occurred to him about two months before her death. At that time he considered using the plastic bag or having an automobile accident. Asked to described the event of May 9th, appellant said that he got up early in the morning, went to work, spent an aggravating day, returned home at about four o'clock, talked to his wife, who was still in bed, and then went out and bought hamburgers. His wife ate her dinner in the bedroom while he and the children ate in the kitchen. Star ate the meat from one of the hamburgers as well as some French fried potatoes and salad.

It was when he started getting her ready for bed that he knew he had to do something, Star having been responsible for the lack of affection between himself and his wife. He put her to bed at approximately eight o'clock p. m., first changing her dirty diapers which he threw on the floor; then, having stood her up in her crib by the rail, he went to the kitchen, took a plastic bag from a kitchen drawer, returned and placed the bag over her head. Star was then still standing at the rail of the crib; he turned around, turned out the light and closed the door. When asked whether it was difficult to put the bag over his daughter's head, he replied, ‘It was a close fit.’ It was his intention to bring about Star's death.

Returning to the kitchen, appellant sat at the kitchen table for about fifteen or twenty minutes; his wife and the other children were watching television in the bedroom; he heard Star crying softly for two or three minutes; at that time he thought that he had done ‘the proper thing’ and that everyone would be happier and better off. The next morning he got up, went to the kitchen, prepared his lunch, and left for work at about 6:30 a. m. He telephoned home about 11 a. m., but did not discuss the children with his wife. Mrs. Furnish called him between 1 and 2 p. m. and told him in an emotional way that Star was dead, that there was a plastic bag over her head and that she had nothing to do with it; he told her that he knew she had not done it.

Shortly after he returned home, a doctor and nurse arrived. When asked whether he intended to tell the doctor what really had occurred, he said that he did not intend to tell anyone. When asked why he did not admit his guilt after his wife was arrested, he said he believed Star's death would be passed off as an accident and that his wife would be released immediately. Upon being asked whether he was making a statement primarily to have his wife released, or because the statement was true, he replied that the statement was true, and that his wife was being released because she had nothing to do with the murder and knew nothing of what he had done.

When asked whether he understood that if his statements subsequently were proved to be false it would tend to show that he had guilty knowledge of his wife's criminal responsibility, he replied that this already had been explained to him. When asked whether he would confess his guilt if he knew his wife was guilty, he said he would not because his confession would endanger the other children, and when asked whether he would allow his wife to be prosecuted if she were, in fact guilty he said he would, because it ‘would be for her own good.’

Later appellant reenacted the crime and a motion picture thereof was taken, but it was not introduced at the trial. Appellant asked to be allowed to tell his wife of his confession, stating that she would not believe it if one of the officers told her. Although appellant was not so advised, this conversation was similarly recorded.

In this conversation appellant told his wife that he had killed their daughter because for some reason he had grown to hate her. Mrs. Furnish told him that she did not believe him. When she suggested that he had confessed because he thought she had killed Star, he said, ‘No. Something snapped. I don't know what it was.’ He also said: ‘I know it's somthing I had to do. I couldn't take it any longer.’ When Mrs. Furnish again suggested that he was protecting her, he said: ‘It's not to protect you. Last night I talked two hours to convince these guys that it wasn't. That's the first thing they said. I figured it would go just as an accident. You read about it all the time in the papers—just an accident.’

Appellant then told his wife that he could describe the plastic bag he put over Star's head and she admitted that she could not have described it before the officers showed it to her. When she protested again that he could not have killed Star, appellant said: ‘All I can say is that I did it and I'm sorry, honest to God I'm sorry.’ He told her that she and the other children were in the bedroom watching television while he committed the murder. He said he was sick of feeding and changing Star; he was ‘just sick, sick of the whole mess.’ He also said that he had informed the officer that if they told her he had confessed, she would never believe it. He told her that he had killed Star when he put her to bed.

An officer also described a conversation he had with appellant en route to the Downey Municipal Court on May 14th. This officer told appellant that he had met his attorney and asked him if he still felt the same way as he did the night when he signed his confession. According to the officer, appellant said, ‘Yes, he had done it, he had killed his daughter.’ adding further: ‘But this is something you won't believe. I really didn't recall it until I received a phone call at work.’ When asked why he had not put Star out for adoption, appellant told the officer that society, his family and friends would have ‘look[ed] down on [him].’

By way of defense, appellant took the position that the child actually had died of an infection, probably acute pneumonitis, or, in the alternative, that his wife had committed the crime. Both of these contentions were found to be unacceptable by the jury. Appellant sought to explain away his confessions by stating that although the police exerted no direct threats or coercion upon him, they did advise him that if he did not confess his wife would be put in prison for life and his children made wards of the court.1 He testified that the officers told him what to say in his transcribed confession. Each of these assertions was denied by the officers and the reporter who had recorded his confession.

It is manifest from the foregoing that appellant's contentions are wholly without merit. The requirements for establishing the corpus delicti in a murder case are well summarized in People v. Misquez, 152 Cal.App.2d 471, 477–478, 313 P.2d 206, 210 as follows:

‘In a murder charge the corpus delicti consists of two elements: the death of the alleged victim and the existence of some criminal agency as the cause. People v. Cullen, 37 Cal.2d 614, 624, 234 P.2d 1, and cases cited. The corpus delicti must be proved by evidence independent of the extrajudicial statements of the accused. But, as a prerequisite to the reception of a defendant's extrajudicial statements in evidence, the corpus delicti need not be established by proof as clear and convincing as is necessary to establish guilt. (25 Cal.Jur.2d 510–513, and cases cited.) The corpus delicti need only be shown by some evidence, and a prima facie showing that the alleged victim met death by a criminal agency will suffice. People v. Corrales, 34 Cal.2d 426, 429, 210 P.2d 843; People v. Mehaffey, 32 Cal.2d 535, 545, 197 P.2d 12, and cases cited. Furthermore, the corpus delicti may be established wholly by circumstantial evidence and by inferences reasonably derived therefrom. People v. Corrales, supra, 34 Cal.2d 426, 429, 210 P.2d 843; People v. Mehaffey, supra, 32 Cal.2d 535, 545, 197 P.2d 12. And such evidence need not connect defendant with the commission of the crime. People v. Amava, 40 Cal.2d 70, 76, 251 P.2d 324.’

In the present case, there was expert testimony that was accepted by the jury establishing that the cause of death was the presence of a plastic bag upon the child's head. There was evidence that this particular bag must have been placed on the child by some other person because it was too small to have permitted her to place it there herself. In this connection, appellant makes the following obscure observation:

‘A person's placing a plastic bag on a child's head would not of itself indicate an unlawful act. It is not a crime of any kind merely to put a bag on a child's head. A search of the cases and statutes has revealed nothing making it unlawful to possess plastic bags, to play with plastic bags or to use plastic bags in any manner.’ No ‘cases or statutes' are required to make unlawful the manner in which this plastic bag was used. The corpus delicti was established by very substantial evidence which was more than sufficient.

Equally unmeritorious is the contention that, as a matter of law, this court must hold appellant's confessions to have been obtained by unlawful means. The evidence with respect to this issue was sharply conflicting. In accordance with settled law, the trial court initially resolved this conflict in favor of the prosecution and the jury thereafter concurred upon appropriate instructions whose sufficiency and correctness are not challenged.

The rule was recently restated in People v. Robinson, 61 A.C. 413, 431–432, 38 Cal.Rptr. 890, 901, 392 P.2d 970, 981 as follows: ‘The contention is that Robinson's extrajudicial statement should have been excluded because it was involuntary. Such contention overlooks the manner in which the statement was admitted. The trial judge allowed the parties to produce evidence in a voir dire proceeding before determining whether he would allow the extrajudicial statement to be read into evidence. He advised the jury that the evidence thus to be produced was received for the sole purpose of determining whether the alleged statement was voluntary or involuntary. The evidence so produced was in direct conflict, and the trier of fact certainly had the right to accept either the prosecution's version or that of Robinson and his witnesses. This constituted a simple factual issue. At the conclusion thereof, the trial judge expressed to counsel, and out of the presence of the jury, his disbelief of Robinson's claims. Under proper instructions he allowed the jury to determine whether or not the statement was voluntary. The parties, in their briefs, argue the merits of the facts testified to by the various witnesses. But we are not concerned with that question. That was the sole concern of the jury. The cases on which appellants rely deal with claims of coercion in which the facts were not in dispute. While it is true that the prosecution has the burden of proving that the alleged confession was voluntary (People v. Rogers, 22 Cal.2d 787, 141 P.2d 722), the trial court here required the prosecution to produce such evidence before allowing the confession to go before the jury. It is the function of the jury, and not of this court, to choose between the conflicting testimony of the parties. * * *’

During oral argument appellant cited the recent case of Escobedo v. Illinois, 84 S.Ct. 1758, in support of his contention that his several confessions should not have been received in evidence. We do not consider the circumstances presented in Escobedo to be sufficiently similar to the instant record to require application of its general holding here. In Escobedo a suspect who theretofore had retained an attorney was questioned at length despite his immediate and repeated requests to see his attorney. His several requests were denied, although his attorney was present at police headquarters at the time, seeking in vain to consult with his client. In addition, there was affirmative evidence that the suspect was not advised of his constitutional right to remain silent. Under these circumstances, the United States Supreme Court held that the suspect had been denied his right to counsel and that, as a result, the admissions of guilt he made during his interrogation were not admissible at his trial.

In the instant case the only evidence relating to this issue was appellant's testimony that on the morning following the arrest of his wife, he called at police headquarters to inquire as to the status of the matter. He testified that at that time he inquired of one of the officers concerning counsel for his wife, and was informed that ‘a minimum of $1700 would be required cash’ and when he asked about the public defender, he was told ‘that [he] was not entitled to a public defender, nor did [he] need one at that particular time.’ He thereupon left the police station and did not return until called by the officers later in the day after they learned that the time of death had been earlier than first believed. The truth of these assertions was denied directly or indirectly by the several officers involved.

There is nothing in the present record to indicate that appellant, either prior to or at the time of his confession, expressed any desire to see an attorney concerning his statements. Moreover, it is not claimed that he was unaware of his right to remain silent. In fact, during his conversation with his wife, which he was not advised would be recorded, and which occurred between the two sessions in which his recorded confession was taken, appellant was asked by his wife: ‘Did you ever call Aunt * * * ?’ He replied, ‘No, I knew I didn't need her for you and all I need is a public defender.’

Since it does not appear that appellant was denied any of his constitutional rights with regard to counsel, we are not confronted with the issue which was presented in Escobedo. There is nothing in the language of that decision which would justify or require any conclusion to the effect that the holding and the reasoning of the majority and concurring opinions in People v. Garner, 57 Cal.2d 135, 18 Cal.Rptr. 40, 367 P.2d 680 do not continue to represent the valid and controlling law of California with respect to the question here presented.

It is well settled that a confession secured through a threat to arrest a near relative, or by a promise to release one, may not be received in evidence. (People v. Trout, 54 Cal.2d 576, 583–585, 6 Cal.Rptr. 759, 354 P.2d 231, 80 A.L.R.2d 1418; People v. Mellus, 134 Cal.App. 219, 223–225, 25 P.2d 237.) Here, however, the officers denied making any such threats or promises and such testimony was accepted by the trier of the facts. A confession is not to be held involuntary simply because it was made in order to exculpate another person. (People v. Jones, 221 A.C.A. 40, 43, 34 Cal.Rptr. 267.)

In the instant case, rather than inducing a confession by promises of freeing his wife in return therefor, the officers advised appellant that if he were merely attempting to take the blame for her and subsequent investigation were to establish her guilt, his confession would harm her, not help her. The fact that the officers might have given appellant the impression (after he had twice admitted his guilt) that if his confession, tested by their independent investigation, convinced them of his wife's innocence, she would be released, would not render such admissions inadmissible. Certainly his wife was not being detained without reasonable and probable cause, and there is nothing in the testimony of the officers to the effect that her release would be granted in exchange for his confessions.

The judgment is affirmed, and the purported appeal from the sentence is dismissed.


1.  It may be noted that the mutually exclusive nature of appellant's contentions regarding his feelings for his wife made it extremely difficult for the jury to draw any conclusion other than that he was a man who would go to any lengths to avoid the consequences of his own actions. That is, it is most difficult to accept the explanation that appellant's comprehensive, detailed and psychologically consistent confession was the result of an excess of love and compassion for his wife when, at the same moment, he was seeking to prove that she, not he, was responsible for the murder of his daughter. During his opening statement, his counsel stated: ‘We will be offering evidence to show that Charles Furnish did not commit this crime because his wife did, Nancy Furnish did it.’

HERNDON, Justice.

FOX, P. J., and ROTH, J., concur. Hearing denied; MOSK, J., not participating.

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