PEOPLE v. KYNETTE (1939)

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

PEOPLE v. KYNETTE et al.*

Cr. 3136

Decided: December 18, 1939

John Oliver, of Los Angeles, Max E. Gilmore, of Hollywood, and George W. Rochester, of Los Angeles, for appellant Earle E. Kynette. Richard H. Cantillon and John E. Glover, both of Los Angeles, and Max E. Gilmore, of Hollywood, for appellant Roy J. Allen. Earl Warren, Atty. Gen., Frank Richards, Deputy Atty. Gen., and Buron Fitts, Dist. Atty., and A.H. Van Cott, Jere J. Sullivan, and Eugene D. Williams, Deputies Dist. Atty., all of Los Angeles, for respondent.

These appeals are:

(A) By defendant Kynette from judgments finding him guilty of the crimes of, (1) attempting to murder Harry J. Raymond, (2) assault with intent to commit murder, and (3) malicious use of explosives;

(B) By defendant Allen from a judgment finding him guilty of the crime of malicious use of explosives.

There are also appeals from the orders denying their motions for a new trial.

Although the briefs in this case total 1908 pages and the record consists of 4569 pages, we have had the opportunity of perusing appellants' opening briefs since October 27, 1938, respondent's brief since March 10, 1939, and appellants' supplemental briefs since January 13, 1939. Thus, though the oral argument took place on October 25, 1939, we are now prepared to render our opinion.

As stated by respondent in its brief, “the controlling facts in the case are simple and capable of statement in comparatively limited space”. We therefore adopt substantially respondent's statement of the facts as follows:

January 14, 1938, there was in existence in the police department of the city of Los Angeles an organization known as the Special Intelligence Unit, which at the time of the commission of the crime of which defendants were convicted and for more than two years prior thereto had been under the command of defendant Kynette. Defendant Allen for some time had been a member of the unit. This unit had its headquarters in a building on West First street in Los Angeles separate from the rest of the police department. Its activities consisted principally in setting dictaphones, spying upon, following, and in general conducting an extensive espionage upon persons engaged in political activities against the interest of the city administration under Mayor Shaw.

June 17, 1937, a bankruptcy hearing was scheduled for the purpose of questioning one Harry Munson, who had been a member of the Los Angeles city police commission and against whom Ralph Gray had secured a judgment for several thousand dollars. Harry Raymond, a friend of Mr. Gray's appeared at the hearing as did also defendant Kynette. The hearing was postponed and finally set for January 25, 1938. After defendant Kynette and Mr. Raymond left the place where the hearing had been scheduled to occur, Mr. Raymond testified that the following occurred:

“A. In substance, Kynette said to me, ‘You know this is an election debt.’ I said, ‘Do you understand what this money is for?’ ‘I think I know,’ he said, and I said ‘Which office are you from now?’ He said, ‘You know where I am from.’ I said, ‘I guess you are from the Chief's Office, you have been working over there.’ He said, ‘Yes, I am from the Chief's office, but I get my orders from Joe Shaw. Now,’ he said, ‘You know why I am here in regard to this campaign bill.’ I said, ‘What have you got to do with it?’ He said, ‘This thing has got to stop. You can't turn any heat on the administration.’ I said, ‘I am not interested in any heat or no heat going on the administration.’ Gray has got $2,990 coming from Harry Munson. Gray filed a suit and Munson took the stand and confessed judgment and he has got it coming and Munson told me he would pay him and I would like to see Gray get the money and I am going to stay with Gray until he does get it or I find out that Munson hasn't got it. A man can't ride around in a'_this is the substance of this whole conversation_‘a man can't ride around in a DeSoto sedan and have $150 suits and have a room in a downtown hotel and have his meals brought upstairs and private barbers shave him unless he has got money.’ He said, ‘I am going to tell you something.’ He said, ‘Right now Munson is Joe Shaw's friend.’ He said, ‘You know I was off the job a while and I got back on the job. I am a lieutenant now.’ I said, ‘I know you are and I practically know how you got it.’ And he said, ‘There is nothing going to happen to Munson.’ He said, ‘Now, if there is any further trouble or any further bothering of Munson, you know I am the head of the Intelligence Squad.’ I said, ‘What has that got to do with me?’ He said, ‘Maybe you will find out a little later.’ I said, ‘Well, I will tell you something, Kynette. I have known you quite a while and if you are threatening somebody you are in the right place because we don't care about any threats. The part we are interested in is in helping Gray get his money.’ I said, ‘You have been bamboozling and bulldozing and running people around here for a long time, you and that Intelligence Squad. So far as Gray is concerned he can speak for himself. So far as I am concerned, I am not going to stand for it for one minute.’ I said, ‘If that is your attitude I will bid you goodbye right now,’ and I started down the street. The reason I started down the street Ralph Gray had been waiting for Rose and Rose had just come down, and coming out the door of the Hall of Records and they started and as they started I started, I said, ‘Well, I will be going.’ He said, ‘Just a minute Raymond.’ I turned around and took a step and said, ‘What is it?’ He said, ‘I hope you don't try to get too tough, because you remember what happened to that little boy Red Foster?’ I said, ‘I know what happened to Red Foster, but from what you say I guess you know more about it than I do,’ and I went on down the street with Mr. Rose and Mr. Gray.

“Q. And do you know what happened to Red Foster? A. Yes, he was bombed out in his room.”

Subsequent to June 17, 1937, and prior to January 25, 1938, the Special Intelligence Unit above referred to, under the direction of defendant Kynette set up an espionage upon Mr. Raymond. This was accomplished by setting members of the intelligence unit to spy upon Mr. Raymond during the daytime. A house (hereinafter called the spy house) was also rented near Mr. Raymond's home. This house was rented by one of the members of the intelligence unit under an assumed name and pursuant to the orders of defendant Kynette, who stated that he wanted a house in the immediate neighborhood of Mr. Raymond's house to install a dictaphone and to observe his activities. This occurred September 21, 1937. From this date until the time of the crime hereafter related, all of Mr. Raymond's activities were observed either by members of the intelligence unit stationed at the house above mentioned or by members of the unit following Mr. Raymond as he moved about the city.

Defendant Allen was assigned to duty at the spy house above referred to about October 25, 1937. About January 8, 1938, defendant Kynette stated to Mrs. Towns that he was tracing Harry Raymond's car, trying to find the reason why Mr. Raymond was giving information to certain individuals who were interested in the political life of Los Angeles. Shortly prior to this time defendant Kynette had been seen examining Mr. Raymond's parked automobile. In January 1938, as Mr. Raymond was walking on a public street in Los Angeles and passed defendant Kynette standing with five other men, defendant Kynette stated to the men with whom he was talking, “There goes the son-of-a-bitch now; it won't be long until I take care of him.”

In December, 1937, defendant Kynette in the middle of the night was observed by Mrs. Raymond examining the door of Mr. Raymond's garage with a flashlight.

Mr. Fisher, a foundryman in Los Angeles, testified that at about the same time he had a conversation at his place of business with defendant Kynette as follows:

“Q. Yes, now, when you saw this man whom you have identified as the defendant Kynette, did he have this mustache on? A. No, sir.

“Q. Was there anybody with him? A. Yes, there was.

“Q. And describe the man that was with him. A. The man that was with him was a tall man, wore a felt hat, grey felt, soft hat, and a dark overcoat.

“Q. Did they come in together? A. Yes, sir.

“Q. Did the two of them have any conversation with you? A. The tall man.

“Q. The tall man did the talking? A. Yes, sir.

“Q. And was Kynette there? A. He was.

“Q. State what the conversation was. A. They came in there and I was back in the foundry working and I was called into the machine shop, and the tall man asked me if I had any pipe or any tubing of any sort around there, and I says, ‘The only thing we have is a brass tubing or brass bushing stock,’ and I showed him what we had; he said it was too thick and I says, ‘What are you going to do with it?’ ‘Well,’ he says, ‘I want something thin that will break easy in small pieces,’ and I says, ‘Well, Mister, you came to the wrong place for anything like that. We don't make anything here that breaks easy,’ so I told the man to go to the Kinney Iron Works. With that they went out of the side door, and that is all.”

On the night of January 13 and the early morning of January 14, 1938, there was a great deal of activity by some persons in the spy house. A neighbor who lived across the alley from the spy house was awakened by three men who were talking in the alley and who immediately went into the spy house when he called to them. Later his wife heard footsteps going down the alley from the direction of the spy house toward the Raymond house and a half hour later heard footsteps returning from the Raymond house. Defendant Allen was on duty in the spy house on this night. The morning of January 14, 1938, Mr. Raymond left his house, went into his garage, got into his automobile, placed his foot upon the starter button, and immediately a terrific explosion occurred, which resulted in the demolition of his automobile, together with the garage, and serious injury to Mr. Raymond.

At the scene of the explosion were found many fragments of iron pipe, which experts testified were part of a bomb, which consisted of “a three inch malleable wrought iron pipe with a cast iron cap at each end”.

A few days after the bombing, the neighbor who had seen the men near the spy house the night before the bombing was beaten by a man whom he identified as defendant Allen, who was accompanied by defendant Kynette, and told to keep his mouth shut as to what he knew concerning the Raymond bombing. The same day defendant Allen took a vacation and went to the mountains, where he stayed for several days.

January 15, 1938, Mr. Gray was at the hospital visiting Mr. Raymond, when he was called to the telephone, and had a conversation with a person whose voice he identified as that of defendant Kynette as follows: “The voice said, ‘Mr. Gray? Mr. Ralph Gray? Yes. How is Mr. Raymond this evening? Mr. Raymond is resting better, thank you. Who is this?’ There was no response to my query. He continued ‘That's too bad. Next time we will do a better job. You're next, Mr. Gray, maybe tomorrow, next day or next week, but we will get around to you and we will do a better job on you than we did on Mr. Raymond.’ I inquired, ‘Why am I selected for this honor?’ ‘You stick your nose into other people's business. That is too bad.’ I inquired if he had anything further to say to me and there was no response and I hung up the receiver.”

Subsequent to the bombing, the garage of defendant Kynette's home was searched and there was found a small roll of California Cap Company detonator leg wire consisting of two strands, one white covered and the other black covered, which is produced only by the California Cap Company. Numerous pieces of wire of the same kind were found at the scene of the Raymond bombing. The several bits of black-colored leg wire found at the scene of the bombing, when added together, amounted in length to more than the several pieces of white-colored leg wire found at the same place. On the other hand, of the black-covered leg wire found at defendant Kynette's garage just the opposite was true. The sum total of the black-covered leg wire found at the scene of the bombing added to that found at Kynette's garage just about equaled in length the sum of the white leg wire found at both places.

Each defendant makes thirty-two separate and distinct assignments of error.

A.

Defendant Kynette urges that the judgments should be reversed for the reason, among numerous others, that the trial judge committed prejudicial error in instructing the jury as follows:

“Verdict Separate Offenses

“The defendants are charged in the Indictment with Four Counts, each of which are separate and distinct offenses, and each defendant may be convicted or acquitted upon any number or all of the offenses charged and each offense of which such defendant is convicted or acquitted must be stated in your verdict.

“Instruction requested by the Plaintiff and Given

“Ambrose

“Judge.”

This proposition is tenable and is governed by the following pertinent rules of law in California:

(1) An element necessary to be proved to sustain a conviction of the crime of attempted murder is proof of a specific intent to kill. People v. Miller, 2 Cal.2d 527, 530, 42 P.2d 308, 98 A.L.R. 913.

(2) An element necessary to be proved to sustain a conviction of assault with intent to murder is proof of a specific intent to kill. People v. Wilson, 117 Cal. 688, 693, 49 P. 1054.

(3) An element necessary to be proved to sustain a conviction of malicious use of explosives with intent to injure another is proof of a specific intent to injure (not kill) a human being. Pen.Code, § 601; People v. Koehn, 207 Cal. 605, 612, 279 P. 646.

(4) Proof of existence of the specific intent necessary to constitute the crime of attempt to murder and proof of the existence of a specific intent necessary to constitute the crime of malicious use of explosives with intent to injure are inconsistent one with the other and may not be reconciled; and, where a defendant is charged with both offenses and evidence is introduced of a single act, defendant may not legally be convicted of both offenses, and verdicts finding him guilty of each offense based on such evidence are inconsistent and void for repugnancy. People v. Koehn, 207 Cal. 605, 611, 279 P. 646.

In People v. Koehn, supra, defendant was charged and found guilty on two counts, (1) attempt to murder, and (2) malicious use of explosives with intent to injure a human being. In holding that the specific intents required to sustain a verdict of guilty of the foregoing offenses were inconsistent with each other and could not be reconciled upon any theory, our Supreme Court says at page 611 of 207 Cal., at page 649 of 279 P.: “Returning to the question whether a conviction on both counts of the information may be sustained, we are of the view that the two conclusions are inconsistent with each other and cannot be reconciled by the application of any rule by which the purposes of a rational mind may be determined.”

Applying the foregoing rules to the facts in the instant case, defendant Kynette was charged and found guilty of (a) attempting to murder Harry Raymond, (b) assault with intent to murder Harry Raymond, and (c) malicious use of explosives with intent to injure Harry Raymond. The trial judge, as hereinbefore pointed out, instructed the jury that they might find defendant guilty “upon any number or all of the offenses charged”. Thus it is impossible to determine how the jury viewed the evidence and what criminal intent, if any, the jury found actuated defendant Kynette, that is, did he intend to kill Harry Raymond or did he merely intend to injure him? Since the defendant under the authorities above cited could not have had the specific intents to commit all of the offenses of which he was found guilty, the verdicts were void for repugnancy.

In People v. Werner, 29 Cal.App.2d 126, 84 P.2d 168, a case involving analogous principles of law, defendants were charged with (a) offering a bribe, and (b) grand theft allegedly committed in an effort to obtain money by false pretenses. The defendants were tried by the same trial judge who presided over the instant case, and an instruction identical with that set forth above was read to the jury. In reversing the judgments on the ground that the verdicts were inconsistent and repugnant and applying the rules of law as set forth in People v. Koehn, the District Court of Appeal says at page 132 of 29 Cal.App.2d, at page 171 of 84 P.2d: “* The law could neither imply one intent when a different intent was established by the evidence nor imply two different and conflicting intents from the same act. * If a criminal intent is to be implied it cannot be implied both ways, and it is impossible to tell how the jury viewed the evidence.”

Thereafter our Supreme Court denied a hearing in People v. Werner, again affirming the principle of law announced in People v. Koehn, supra.

There is no merit in respondent's contention that, should this court find the verdicts inconsistent, nevertheless the judgment should be affirmed on the count finding defendant Kynette guilty of maliciously using explosives with intent to injure Harry Raymond, as was done in People v. Koehn, supra, for the reason that, as expressly pointed out in People v. Koehn, defendant Koehn took the witness stand and testified that he placed a bomb at the residence of Judge Beaumont with the expressed intention of intimidating and terrifying Judge Beaumont. This the Supreme Court held in effect amounted to a plea of guilty by defendant of maliciously using explosives with intent to terrify, saying in People v. Koehn, supra, 207 Cal. at page 612, 279 P. at page 649:

“* That he was properly convicted of the malicious use of explosives with the intention of terrifying and intimidating the judge of the court was the defendant's repeated admission at the trial of the case, both as a witness and in the conduct of said cause. *

“* His admissions in court in effect amounted to a plea of guilty. The submission of the question of his guilt upon the count charging an attempt to murder could not have, under the state of the record, prejudiced the jury in its consideration of the crime which, by his own admissions, he committed.”

In the instant case, there were no such admissions. Defendants took the witness stand and specifically denied having had any participation or connection with the dastardly plot or the cowardly and villainous act of placing the bomb, the explosion of which resulted in serious personal injury to Harry Raymond.

B.

Among his assignments of error defendant Allen relies for reversal of the judgment against him on this proposition:

It was prejudicial error for the trial judge over the objection of defendant Allen to permit the prosecution to show that defendants Kynette and Allen when summoned before the Los Angeles County Grand Jury, which was investigating the bombing of Harry Raymond, had declined to answer questions, relying on their constitutional privilege against self-incrimination.

This proposition is tenable. During the course of the trial the prosecution offered to prove that defendants when summoned before the Los Angeles county grand jury, which was investigating the Harry Raymond bombing, declined to testify and asserted their constitutional privilege against self-incrimination. To this evidence appellant Allen objected and his objection was overruled and the proffered evidence received. Among instructions given to the jury was the following:

“You have been instructed that a witness may be impeached, among other things, by evidence that he has at other times made statements inconsistent with his present testimony. In this case where a witness, whether he be a defendant or not, has answered a certain question with an answer devoid of any admission of guilt and it is shown that at some other time and place to substantially the same question he made answer, ‘I decline to answer on the ground that the answer might tend to incriminate me,’ or words to that effect, the two answers are inconsistent. The effect of this may be to discredit the testimony of the witness but it does not prove the truth of the former statement.

“Given by the Court as modified.

“Ambrose, J.”

It is the established law that a person may not be compelled in a criminal case to be a witness against himself, art. I, sec. 13, Constitution of the State of California, and this constitutional privilege prevents the prosecution from introducing over objection evidence that defendant has refused to testify before a grand jury, claiming his constitutional privilege against self-incrimination.

In People v. Luckman, 254 App.Div. 694, 3 N.Y.S.2d 864, at page 865, the supreme court appellate division of New York in reversing a conviction of defendant for the crime of perjury thus states the rule: “It is our unanimous opinion that it was error (1) to permit the prosecutor in cross-examining the witness Betty Kleinman to show that she had claimed her constitutional privilege against self-incrimination in testifying before the grand jury. Const. art. 1, § 6. This view is in accord with the weight of authority. [[[[Citing numerous cases.]”

In State v. Bailey, 54 Iowa 414, 6 N.W. 589, at page 590, the supreme court of Iowa says: “3. The defendant in this case became a witness in his own behalf. Upon cross-examination, the district attorney, against the objection of the defendant, was permitted to ask the following question: ‘Why was it that you testified on the other trial that you did not desire to answer, as it might criminate yourself?’ This question was improperly allowed, for the reasons already suggested. It is further objectionable because not pertinent to anything elicited on the examination in chief.”

Applying the above-stated rule to the present case, it is evident that the testimony to which objection was made was improperly received in evidence and was a violation of defendant Allen's constitutional privilege against self-incrimination. From the evidence thus received, taken together with the instruction above quoted, the jury may have inferred that, since defendant Allen had relied upon his constitutional right and refused to testify before the grand jury, such conduct amounted to an admission of guilt by defendant Allen.

Further, there was no inconsistency between the defendant's refusal to testify before the grand jury on the ground that his testimony might tend to incriminate him and his testimony at the trial denying guilt of the offenses for which he was being tried. He might have been innocent of the offenses which were subsequently charged against him, and yet his testimony, if given before the grand jury, might have tended to prove him guilty of other offenses, such as, for example, wire tapping.

In view of our conclusions on the foregoing propositions, it is unnecessary for us to consider the numerous other errors urged by defendants. Suffice it to say that many of them appear to have merit, and upon a retrial of this case constitutional guarantees and the rules of evidence should be strictly adhered to and irrelevant and immaterial evidence should be excluded.

For the foregoing reasons the judgments and orders appealed from are and each is reversed and new trials are ordered.

I concur:

In the case of People v. Koehn, 207 Cal. 605, 279 P. 646, the defendant was charged in separate counts with attempted murder and the malicious use of explosives. The defendants in the present case were tried on the same charges. In the Koehn case the Supreme Court ruled, “* from the nature of the two offenses charged, that he could not be guilty of both”.

In view of the ruling in the Koehn case, a ruling which it is our duty to follow, no course is open to this court other than to reverse the convictions. The attorney-general contends with persuasive argument that the judgments of conviction on the count charging the malicious use of explosives should be allowed to stand. We are prevented by the decision in the Koehn case from sustaining this contention.

Mr. Presiding Justice MOORE, deeming himself disqualified, takes no part in the consideration or determination of this case.

McCOMB, Justice.