PEOPLE v. LISENBA (1939)

In an indictment returned by the grand jury of Los Angeles county, Major Raymond Lisenba (also known as Robert S. James and who will be referred to as the defendant), and one Charles H. Hope were jointly charged with the murder of Mary Emma James, defendant's wife. The alleged homicide was perpetrated on or about August 5, 1935, and remained undetected for a period of several months. In fact, the indictment was not returned until May 6, 1936. Thereafter, the accomplice Hope entered a plea of guilty to the charge and at the time of defendant's trial was awaiting sentence. He has been since sentenced to life imprisonment. Hope was the principal witness for the prosecution upon the defendant's trial, at which trial it was the theory of the People that defendant, in league with Hope, had plotted and consummated the death of defendant's wife for the purpose of collecting and dividing the proceeds of certain insurance policies on her life. It was also the theory of the prosecution that the homicide was perpetrated in such manner as to give the appearance of accidental death not only to allay suspicion but in order to bring into operation the double indemnity provisions of the insurance policies. In this connection, the evidence of the prosecution tends to establish that the conspirators undertook to bring about the deceased's death by means of a deliberately inflicted poisonous rattlesnake bite on the under side of deceased's left foot (the assumption probably being that, if fatal, such bite or laceration would appear to have been incurred in or about the garden of her home) and that this ingenious method of destruction having proved ineffective the conspirators accomplished their objective by deliverately drowning the deceased in the bathtub of her home, whereupon her body was placed in the fish pond on the premises to further the ‘accidental’ appearance of her demise. The methods assertedly employed to bring about the deceased's untimely death will hereinafter be more fully described upon a detailed recitation of certain of the evidence. Upon the conclusion of defendant's trial, a verdict was returned finding him guilty of murder in the first degree, without recommendation. This appeal is from the judgment imposing the extreme penalty and from the order denying a new trial. We turn now to a discussion of pertinent evidence in the case.

Viola and James Pemberton, husband and wife, when called by the prosecution testified, in substance, that they had accompanied the defendant to his home on the evening of August 5, 1935, where they were to take dinner with the deceased and defendant; that upon arrival there they failed to find the decedent in the house whereupon defendant procured flashlights and suggested a search of the grounds and garden; that the defendant went to the back and James Pemberton to the front of the premises; that as the witness James Pemberton walked back through the shrubbery he saw the body of the deceased in and near the fish pond, with the upper part of the body and head (face down) submerged in the water; and that when the defendant was told of the gruesome discovery he cried and otherwise expressed his grief.

John P. Toohey, a deputy sheriff, testified that he, in company with another deputy and in response to a summons, appeared at the scene at approximately 8:30 p. m., at which time he saw the body of the deceased near the fish pond; that at the time the head was in the water, face up (the discoverers undoubtedly having previously moved it); that the water was approximately 14 inches in depth; and that the body was so placed that he could see that the left leg ‘was swelled and very blue.’

A. L. Hutchinson, also a deputy sheriff, testified that when he arrived at the scene he ‘noticed a cut on her [deceased's] left toe, her big toe on the left foot’; that the flesh of her left leg ‘was very dark * * * and it was almost black between the ankle and the knee, very black’; that the ‘whole [left] leg was black and blue from the ankle up to the knee and on the inside of the leg’ and was ‘some swollen.’

Charles H. Hope, the defendant's confessed accomplice and who at the time was awaiting sentence upon his plea of guilty to the charge of murder, testified, as the state's principal witness, that he had known the defendant for approximately seven years; that when conversing with the defendant in the latter's barber shop in June, 1935, the defendant asked him if he had any knowledge of rattlesnakes, to which the witness answered in the negative; that the defendant thereupon stated that he had a friend who had a wife he wanted to kill and desired rattlesnakes for the purpose, adding that if he (Hope) would ‘get me some rattlesnakes, I will give you $100’ and ‘defray all expenses'; that subsequently he (Hope) bought three rattlesnakes in Long Beach and delivered them a few evenings later to the defendant at his home; that the snakes cost $5 but the defendant paid him $20 prior to their delivery; that the defendant then had him stay at his (defendant's) home for several days and while there had the witness go to town and have two boxes made for the snakes with sliding glass tops; that the boxes were approximately two feet long and nine inches high; that in July, 1935, he again talked with the defendant at his barber shop at which time the defendant said his friend was dissatisfied with the snakes because they were not fighters and that fighters could be procured at the Ocean Park Snake Pit; that thereafter he went with the defendant to said snake pit where the defendant conversed with the attendant and said ‘that is the one I want’; that the following day the defendant sent him to purchase the snake so designated; that the purchase was made and the snake was delivered to the defendant; that he next saw the defendant on August 3, 1935, two days prior to the homicide, at which time the defendant said that the snake was no good and that he wanted some fighters; that he (the witness) thereupon went to ‘Snake Joe’ at Pasadena and purchased two snakes which he delivered to the defendant; that the defendant said ‘his wife [the deceased] had $5000 worth of insurance and he was going to collect it’; that he went to the defendant's home on August 4, 1935, the day preceding the homicide, at which time the defendant stated that the witness was in as deep as the defendant; that defendant had him bring one of the sliding glass top boxes containing a snake from the garage into the house; that he came in the back way to the kitchen at which time he observed the deceased in her nightgown strapped or tied to the kitchen table and with adhesive tape, previously purchased by the witness at the defendant's request, fastened over her eyes and mouth; that the defendant told him he got the deceased, who was then pregnant, on the table under a ruse that a doctor was coming to ‘perform some kind of an operation on her for pregnancy’; that while the deceased remained in this prostrate position the defendant put her left foot into the box containing the snake; that the witness then returned the box to the garage; that he later left in the defendant's car with the box containing the snakes and dead chickens, etc., which had fallen prey to the snakes in defendant's prior tests of their ability to destroy; that he then picked up his (the witness') wife at her place of employment and returned the snakes to ‘Snake Joe’ from whom they had been procured; that he threw the boxes out along the road; that he returned to the defendant's home about 1:30 a. m., August 5, 1935, the day of the homicide; that the defendant then appeared to have been drinking and told the witness that the snakes were no good and that his wife was not even sick; that the defendant thereupon jumped up and said, ‘I am going in and drown her’; that the witness stayed in the automobile; that the defendant came out about 4:00 a. m. and said, ‘That is that’; that at approximately 6:30 or 7:00 a. m., the defendant said the deceased had been dead since 4:00 a. m. and the house ‘cleaned up’; that defendant then asked him to ‘help me carry it’ whereupon he accompanied the defendant into the house where he observed the deceased lying in the hall dead with her feet toward the bathroom; that the defendant took the upper part of deceased's body and the witness the lower part and carried her ‘towards the fish pond’; that the witness refused to put decease in the fish pond as requested by the defendant but went instead to the automobile; that the defendant told him he would care for him ‘when I get this money’; and that some time later the defendant gave him $100 and instructed him to ‘get out of town’. The witness thereupon identified three persons in the courtroom as the three men from whom on separate occasions he had purchased the snakes as above mentioned. His story was not materially shaken on cross-examination.

Certain portions of Hope's testimony were corroborated by his wife who, among other things, testified that on August 3, 1935, she drove with Hope to a snake farm in Pasadena; that Hope took a box and went to the side of the barn where she saw him with ‘Snake Joe’, whom she identified when he arose in court; that the following morning she drove with Hope to within a block of defendant's home and Hope left her there, the witness driving back to Los Angeles alone; that Hope picked her up at work about 2:00 p. m. of that day (August 4th) in the defendant's car; that there were boxes in the back of the car; that they again drove out to the snake farm in Pasadena; that Hope took a box and went inside, returning several minutes later with ‘Snake Joe’; that on the return trip Hope threw out two boxes with glass tops; that Hope left her after dinner and she did not see him again until the following morning (the morning of the homicide) when he appeared ‘white and jittery and had been drinking’.

Additional corroboration of portions of Hope's story appears in the testimony of the three persons from whom he assertedly purchased the several snakes. Roland H. Kirby testified that early in July, 1935, Hope came to him and said he was interested in experimental work and inquired if he had snakes ‘with fangs and poison’; that Hope purchased three snakes and the witness gave him a jar of crystallized rattlesnake venom.

Mike Allman, who operated a reptile show at Long Beach, testified that the defendant and Hope one day came to his snake pit; that they had been drinking and were noisy; that the defendant offered to bet that the witness had no poisonous snakes; that the following day Hope returned with a sliding glass top box and purchased a rattlesnake, stating that he had lost $100 to the defendant in a poker game and the defendant had offered to bet him $50 that the witness had no poisonous snakes; and that upon being assured that a certain snake was poisonous, Hope purchased it to recoup a part of his card loss to the defendant. On redirect examination the witness stated that some time later and after their arrest, he had identified and picked out the defendant and Hope from a crowd of persons.

Joe Houtenbrink, known as ‘Snake Joe’, testified that he operated a snake farm in Pasadena; that Hope came there on August 3, 1935 (two days prior to the homicide) and purchased two Diamond Back or Crotalus Atrox rattlesnakes for which he paid $3.00; that Hope said he had a friend and ‘in said he already bought some snakes from other places and they wasn't hot and he wanted a real hot one and he was told to come over to me to get the snakes, that I handled hot snakes'; that Hope explained he wanted the snakes to bite and kill a dog and thus win a bet; that Hope had a box with a glass cover or top for the snakes; that he saw Hope the following day about 3:00 p. m. (the day preceding the homicide) and that at that time he repurchased the snakes from him for half price. This testimony corroborates that of Hope and his wife.

At this point in the trial argument arose between counsel over the prosecution's proposal to bring into court the two snakes purchased by Hope from the preceding witness and which the district attorney declared were ‘the actual snakes that were at the house that day’. Defense counsel vigorously opposed their production in court but the objection was overruled. The two snakes were thereupon produced in court confined in boxes. Defense counsel then insisted that the record show that the courtroom was assertedly thrown into a state of excitement and consternation by the production of the two snakes. However, in opposition to counsel's assertion, the record also discloses the statement of the trial judge that the decorum of the courtroom and the orderly conduct of the trial were not disturbed in any manner by the incident. Thereupon, ‘Snake Joe’, still on the stand, identified the two snakes so produced as the two he had sold to Hope two days prior to deceased's death and had repurchased from him one day prior thereto. According to Hope's testimony, at least one of the two snakes so identified, was employed by defendant and him to inflict a poisonous bite on the deceased's left foot when it was pushed by the defendant into the box containing the reptile. In view of such identification of the snakes and their employment in the plan to bring about the death of deceased, we perceive no error in the trial court's ruling permitting the production of the snakes for the inspection of the jury. It is not uncommon upon a murder trial to offer in evidence as part of the res gestae the medium employed to bring about the violent or untimely death of the victim. In People v. Bannon, 59 Cal.App. 50, 56, 209 P. 1029, 1032, it is stated that: ‘As a general rule, physical objects which constitute a part of the transaction, or which serve to unfold or explain it, may be exhibited in evidence, if properly identified, whenever the transaction is under judicial investigation.’ See also, People v. Peete, 54 Cal.App. 333, 348, 202 P. 51, and 8 Cal.Jur. 143, sec. 228. Moreover, the production of the identical snakes tended to corroborate the testimony of prosecution witnesses and to otherwise support the case of the People. It might also be mentioned that if the production of the snakes in court caused the extreme state of excitation urged by the defense, it is difficult to appreciate why defense counsel at a later time in the trial and during the development of the case by the defense, again produced the snakes and thus risked a repetition of the situation of which complaint is here made.

Returning to our discussion of the evidence, we find that the witness Irving Sherman, called by the people, testified to the effect that his father was in the cabinet business and that Hope on July 28, 1935 (several days prior to the homicide) ordered and had made two boxes with sliding glass tops. This item of evidence lends some credence to portions of Hope's testimony as well as to that of other prosecution witnesses.

In support of Hope's testimony that he was with the defendant at his shop and at his home several times prior to the homicide, thus affording opportunity for the planning and carrying out of their scheme, there is the testimony of Lois Wright, the defendant's niece, that she had seen Hope at defendant's barber shop, where she worked, and also had seen him in July, 1935, at defendant's home.

Sam Grant, a barber in defendant's shop, also placed Hope there on many occasions in 1935.

Dr. A. F. Wagner, the autopsy surgeon, testified that he found a laceration on the surface of deceased's great left toe; that her left foot was considerably swollen and discolored, the swelling extending up to the hip; and that deceased's lungs contained a considerable amount of water. He gave as the cause of death, ‘drowning and an acute cellulitis [swelling] of the legs.’ Cellulitis, he testified, is ‘always due to an infection of some kind’; that cellulitis resulting from a bacterial infection would take from two or three days to a week to reach the extent it had in the deceased but that if caused by ‘animal poisons' it would progress ‘much faster’. He elaborated to the extent of saying that animal poisons capable of producing cellulitis such as the deceased had would be ‘the venoms of insects and snakes, spiders, and so forth’. He further testified that the cellulitis present in deceased was not of the bacteriological type but was of the ‘animal poison’ type and ‘could have been’ caused by the bite of a snake. In addition, he testified that he again had examined the deceased's body in May, 1936, following its disinterment when criminal proceedings appeared in order, and that he was of the opinion that the laceration on the deceased's toe was caused by a rattlesnake bite.

Dr. Gustave Boehme, who was present at the examination following deceased's disinterment, testified that he had made a special study of snakes and snakebites; that on deceased's great toe of the left foot he had discovered an ‘old laceration wound approximately a quarter of an inch in length’ which could have been caused by a number of things but, in his opinion, had been caused ‘by some venomous creature, probably a snake, and all the other findings on the leg were compatible with such a finding’, adding that the single incision was such ‘as could be caused by a fang striking at an angle, perhaps'. In his brief the defendant concedes that this testimony is corroborative of Hope's story.

Mrs. Ethel Smith, another niece of the defendant, testified, among other things, that the defendant had sent a trunk to her home for storage and that certain rope shown to her was in the trunk. Charles Griffen, an investigator for the district attorney, testified that he found the rope in the trunk. The significance of the testimony of these two witnesses lies in the fact that Hope when on the stand had previously identified the rope as being similar to that with which the deceased had been tied to the table when her foot was placed in the box containing the snake.

In support of its claim that the motive underlying the deceased's untimely death was the collection of insurance moneys, the prosecution produced as a witness one Louis Berry, an insurance agent with the Mutual Life Insurance Company, who testified that he had been a customer at defendant's barber shop and had solicited him for life insurance; that defendant said he was not personally interested but knew a girl who might be interested in life insurance; that about two weeks later defendant inquired as to the cost of a $5000, twenty or twenty-five year endowment policy on a girl 26 years of age, whose name he would not reveal; that defendant agreed to submit the matter to the prospect; that about one week later the defendant introduced the witness to the prospective client, Mary E. Busch, who later became the defendant's wife and for whose murder he now stands convicted; that on June 25, 1935, he delivered to her a $5000 policy which named the defendant as beneficiary, that subsequently and on July 30th, he called on the defendant in response to the latter's telephone request and the defendant inquired as to the effect on the policy of a misrepresentation by the insured at the time of applying therefor that she was married, when, in fact, she was not (deceased and defendant had been living together at the time); that the defendant stated they were not married until July 19th, following the issuance of the policy; that he (the witness) checked the matter with the company and reported back to the defendant that the policy was not affected thereby; that one premium was paid on the policy; and that after the deceased's death the defendant inquired if the company would pay under the double indemnity provisions of the policy as a result of the accidental character of her death. On cross-examination the witness testified that the defendant had procured other prospective clients for him.

Max Galatz, a representative of the Occidental Life Insurance Company, testified that late in May, 1935, he received two applications for insurance on the life of the deceased, one for a $5000 policy and the other for a $700 policy; that defendant was named beneficiary in both; that the defendant and deceased (contrary to the fact) said they were husband and wife at the time; that he told the defendant that he would have to have more insurance on his life than the deceased had on hers; that defendant said he had ample insurance in two or three companies but applied for a $3000 policy on himself; that the policies were issued and delivered about June 12th; and that only one premium was paid by the defendant on each of said policies, including his own. On cross-examination, the witness stated that in litigation which followed on the policies after deceased's death the defendant claimed under the double indemnity provisions but later settled for $3500, which amount (less than the face value of the policies) was paid to the defendant. Defendant's testimony given during the trial of such action was read into this record by the phonographic reporter, from which it appeared that the defendant met the deceased about March 1, 1935; that they began living together early in May, 1935; that defendant, unknown to the deceased, had arranged for a mock marriage inasmuch as he could not then legally marry deceased because of the pendency of an annulment proceeding growing out of a previous marriage; that they thereafter became legally married on July 19, 1935; and that the deceased was in ‘marvellous health’ up to the time of her death. In connection with the two policies last above mentioned, the defendant two or three weeks prior to deceased's death likewise made inquiry as to the effect of the misrepresentation that the parties were married at the time of making application therefor.

E. L. Taggart, an automobile salesman, testified that he met the defendant early in 1935 and that defendant then stated that he desired to buy a cheap car with the understanding that he could turn it in on a large Studebaker in a few months upon his receipt of $10,000 from an ‘estate’.

Madge Reed testified, in substance, that she met the defendant in the Italian Village on July 10, 1935; that he stated he was visiting from Kansas and was staying with his sister; that the defendant became intoxicated and asked her to drive him home, which she did; that while she was at his home, a woman who identified herself as his wife (the deceased) came home unexpectedly from a convention; that the defendant telephoned her several times thereafter, including a call two days prior to the deceased's demise; that defendant visited her at her apartment on August 11th (six days after deceased had died) and stated that they were trying to frame him for his wife's death but that he would collect her insurance money, marry the witness and they would go north; that defendant stated in the event of his indictment he wanted to use the witness as a surprise witness and would give her $2000 if she would testify that she had met the defendant and deceased five weeks previously; that on the morning of deceased's death the witness had seen the deceased on her porch and that deceased had then complained of not feeling well, making particular mention of a sore leg; that she (the witness) and defendant registered that night at a hotel and talked over his troubles and the asserted attempt to frame him; that defendant had her make notes on a card as to how he wanted her to testify (briefly outlined above), whereupon the witness identified the card on which she had written the notes and also the hotel register. She further testified that defendant gave her $60 at that time and promised her $2000 later.

We find no error in the rulings admitting and thereafter refusing to strike out the testimony of this witness. It tended in some degree to establish the motive advanced by the prosecution—collection of insurance money coupled with the purpose of marrying another woman. It also tends to disclose an effort on the defendant's part to establish an alibi in the event his foul deed came to light.

At approximately this point in the trial the prosecution was about to offer in evidence a statement or confession made by the defendant in the early morning hours of May 3, 1936, in the office of the district attorney and in the presence of several persons. Preliminary to such offer, however, and upon objection thereto by the defendant, the people undertook to establish that the statement or confession was the free and voluntary act of the defendant, uninfluenced by promises, threats or persuasions. Defendant, on the other hand, undertook to establish that the statement or confession was improperly extracted from him. As a result, much of the evidence on this phase of the case is highly conflicting, the defendant in many instances contradicting the people's showing. The conflict so created was resolved against the defendant by the trial court in the first instance upon its ruling admitting the statement or confession as the free and voluntary act of the defendant and by the jury in the second instance by its verdict finding him guilty as charged. However, in view of the vigorous presentation and argument of this point upon the present appeal, we feel justified in developing the matter at some length in order that the general state of the record in this respect may be known.

The defendant took the stand on voir dire in an effort to show the asserted involuntary character of the confession and testified that he had been constantly questioned, threatened and beaten by the officers from the time of his arrest on April 19th, without a warrant, until he was ‘booked’ at the county jail on the 21st. He asserted that his ears were bruised and swollen and that he had suffered a hernia as a result of such manhandling. During this period he was assertedly proffered manslaughter punishment in exchange for a confession. His counsel testified that when he later saw the defendant in the county jail his ears were blue and swollen. Several depositions were offered by the defendant as tending to show that he was congenitally weak-minded and therefore more likely to capitulate to coercive methods than the average person.

It appears from the testimony adduced by the people that the defendant was placed under observation in April, 1936, for suspected incest involving his niece, at which time the authorities uncovered and developed the criminal character of deceased's death which had occurred several months prior thereto. As a result of these developments the defendant was arrested on April 19, 1936. He was not taken without delay before a magistrate nor was he immediately incarcerated in the county jail as required by sections 849 and 1597 of the Penal Code. Instead, and after some preliminary questioning in the office of the district attorney, he was taken by the officers to a private home, adjoining that where the defendant had been living with his niece, and where admittedly he was held incommunicado for a period of about forty-eight hours, during all of which time he was admittedly subjected to incessant questioning by the officers who worked in shifts. The defendant was apparently deprived of rest and sleep during practically all of such period. At least, the prosecution failed to offer any positive testimony that defendant during this period was afforded an opportunity of going to bed, a privilege concededly enjoyed by the examining officers. In addition, one of the officers testified that during the questioning he became angered and ‘slapped’ the defendant's face when the defendant was said to have referred to the deceased as a ‘whore’. Other than subjecting defendant to constant questioning, and the ‘slap’ administered to him, the several officers categorically denied that any threats or promises were made to or any physical beatings were inflicted upon the defendant during the two day period he was being held that questioned in the private house. Charles Griffen, the assistant chief of the bureau of investigation in the office of the district attorney, while admitting the continuous course of questioning of the defendant during this period, testified that other than the slap mentioned, no force or violence was employed on the defendant; that the defendant was calm and collected; and that he appeared unafraid and answered questions (other than admitting the crime) readily and rationally.

Everett Davis, another investigator for the district attorney, denied that the defendant was offered a lighter punishment if he would confess and testified that the defendant was told no one could offer or promise him anything but if he wanted to tell the story they would listen. He added that of his own knowledge, the defendant slept from 3:30 to 8:00 a. m., April 21st, in a chair with his feet on a second chair. Two other officers likewise denied defendant's statement of threats and violence during the period April 19th to 21st, one of whom testified that defendant explained receiving the hernia in an automobile accident. Three deputy sheriffs, who saw the defendant (stripped and otherwise) in the county jail on and subsequent to April 21st testified, in substance, that they saw no bruises, marks or discolorations on defendant's body or head and that he made no complaints as to his treatment or condition.

It is apparent, therefore, that the evidence is sharply conflicting on this phase of the case, other than that showing continued questioning of the defendant throughout the period of April 19th to 21st, during which an ill-advised slap was administered to him, and for all present purposes the conflicts therein must be presumed to have been resolved against the defendant by both the trial court and the jury.

Regardless of the impropriety of holding and continuously examining the defendant for many hours in a place other than a county jail prior to the filing of any charge against him, a course which we expressly disapprove, it is of the utmost significance that a confession was neither obtained nor extracted from the defendant during such period. The record definitely discloses that this treatment of which defendant here complains failed of its asserted objective. In other words, no matter how improper the treatment of defendant between April 19th the 21st, a confession did not result therefrom. It was not until May 3, 1936, twelve days later, that the confession sought to be introduced was obtained. In this respect, the evidence shows that the defendant was removed from the private house where he had been held and booked at the county jail on April 21st. One of his counsel took the stand and testified that he saw the defendant in the county jail on April 25th, at which time he instructed the defendant not to answer any questions in his absence. On cross-examination, said counsel admitted that he saw the defendant ‘when he was arraigned’ on April 21, 1936. It is apparent, therefore, that the defendant was not held incommunicado when the confession was forthcoming. He had enjoyed the benefit and association of counsel and had been before the grand jury and the court. It is also of the utmost importance that the defendant did not confess until after Hope, his accomplice, had been arrested on May 1st and had told the story to the officers in charge of the investigation. The defendant's confession followed within two days thereafter. Defendant testified further on voir dire, however, that he still suffered from the pain and memory of the prior beatings assertedly administered to him; that he was afraid to follow the advice of his counsel and continue to refuse to answer questions or to deny the statements of the officers as to the manner of the commission of the homicide; that the officers accused him of lying and threatened to take him back to the house and ‘beat your God damned head off’; that he could not take another beating and therefore offered to ‘gladly admit it [Hope's story] and save myself other punishment’. On cross-examination, he admitted that he did not confess following the alleged beatings administered to him by the officers during his confinement in the private house from April 19th to 21st and he also admitted that no threats, promises or beatings preceded his statement and confession in the district attorney's office on May 2nd and 3rd.

Chronologically, the circumstances leading up to the confession were narrated by certain of the officers, as follows: Williard L. Killion, a deputy sheriff, testified that on the morning of May 2nd, he took the defendant from his cell in the county jail to the Chaplain's room; that many persons were there; that no one made any promises or exerted any coercive influence to induce the defendant to talk; that an unsuccessful effort was made to locate defendant's counsel, as requested by him; that all statements thereafter made by the defendant were free and voluntary and without objection on his part that his counsel was not there; and that Hope was brought into the room.

Edward F. Lynch, who reported the proceedings at this meeting, testified that deputy district attorney Williams related Hope's story to the defendant and asked the defendant if he had anything to add thereto and the defendant replied ‘Nothing’. This session ended at 11:50 a. m. on May 2, 1936, whereupon the defendant was returned to his cell. Later in the day and pursuant to court order, he was taken to the scene of the homicide by a deputy sheriff. Still later, he was returned to the office of the district attorney where he answered questions in the presence of several persons. Robert P. Stewart, the chief deputy district attorney, testified that the district attorney principally examined the defendant during the afternoon of May 2nd, that Hope was brought in during the session; that no promises or other improper influences were exerted over the defendant; and that defendant was rational and coherent at all times. Along about midnight the defendant was taken out to a restaurant by Killion, the deputy sheriff, and two others. While in the restaurant, the defendant, according to Killion's testimony, voluntarily unburdened himself as to the commission of the crime. In this narrative the defendant told of plotting with Hope to kill the deceased and to collect and share her insurance money. However, throughout his statement of the circumstances surrounding the commission of the crime, the defendant charged that Hope was the principal actor in the consummation of the crime. It was Hope, he said, who placed the deceased's foot in the box for the snake to bite and who later drowned deceased in the bathtub and placed her body in the fish pond. The defendant during this statement also admitted that he had had the deceased write a letter to her sister complaining of a sore foot and leg, which letter was found, unmailed, in the deceased's home on the evening of her death by the Pembertons and the defendant immediately after they had discovered her lifeless body. This letter was offered in evidence by the prosecution and there is evidence, conceded in the defendant's brief, that it was not in the deceased's normal handwriting. The inference was available to the jury that the defendant had compelled its writing, a fact later admitted by him in his confession, to furnish, if possible, an alibi.

At the conclusion of this restaurant statement, the defendant was returned to the office of the district attorney where, between the hours of 1:30 and 3:30 a. m. May 3, 1936, according to the testimony of several there present, the defendant freely and voluntarily detailed the circumstances of the crime in a confession which the prosecution thereupon offered and had admitted in evidence.

It cannot be said, under all of the evidence, that the court below erred in admitting the defendant's reply to the accusatory statement and his confession as free and voluntary acts on his part. It is declared in People v. Lehew, 209 Cal. 336, 341, 287 P. 337, 339, that: ‘Whether a confession is free and voluntary is a preliminary question addressed to the trial court, and a considerable measure of discretion must be allowed that court in determining it. * * * In People v. Siemsen, supra [153 Cal. 387, 95 P. 863], it is declared that the ‘admissibility of such evidence so largely depends upon the special circumstances connected with the confession that it is difficult, if not impossible, to formulate a rule that will comprehend all cases. As the question is necessarily addressed in the first instance to the [trial] judge, and since his discretion must be controlled by all the attendant circumstances, the courts have wisely forborne to mark with absolute precision the limits of admission and exclusion.’ The mere fact that the confession was made to a police or other officer of the law while the accused was under arrest does not necessarily render the confession involuntary and inadmissible. So, also, the mere fact that a confession is made in answer to questions will not authorize its rejection, though the fact of its having been so obtained may be an important element in determining whether the answers were voluntary. * * * A reviewing court cannot say that the trial court committed error in admitting a confession of guilt, unless such error appears as a matter of law from the record presented. The trial court is clothed with considerable discretion in determining whether or not the confession was free and voluntary, and, where the evidence is conflicting on the subject, it must be assumed that the testimony concerning a defendant's admissions was properly admitted.'

In the present case the testimony is overwhelming to the effect that during May 2nd and May 3rd, when the statement and confession were made, no promises, immunities, threats or forms of violence were employed to overcome the free will of the defendant. This is corroborated by defendant's own testimony. That he was questioned for many hours is not, of itself, improper, particularly when, as testified, he freely responded thereto. Some recognition must be given to the practical problems presented in the work of crime detection. A reasonable conclusion, and one which the trial court and jury might have readily reached on all the evidence, is that the defendant broke down and confessed his participation in the crime only after his confederate and accomplice had been arrested and detailed the murder conspiracy and had been brought face to face with the defendant who had been informed of the details of his confederate's story. Each case must turn on its own facts and we therefore give but passing mention to the authorities relied on by the defendant.

Turning our attention now to the substance of the confession, and eliminating many unnecessary details, we find defendant relating that early in July, while the deceased was away for a few days at a convention, he and Hope planned to kill her and to share equally in the proceeds of her insurance policies; that Hope first suggested a false hold-up in which deceased would be shot, but they later agreed on Hope's second suggestion of permitting a rattlesnake to bite her in the hope that the infection would prove fatal; that he gave Hope $20 and the latter had ‘certain kinds of boxes made’ and brought snakes up to defendant's home in them; that Hope brought three the first time and two the second, all of which proved unsatisfactory upon experimentation with chickens, rabbits, etc.; that two days before the deceased's death he gave Hope $6 to purchase two ‘hot’ snakes Hope had reported seeing; that these snakes were procured and kept in boxes in his garage over Saturday night (Aug. 3, 1935); that the conspirators did some drinking with deceased that night and discussed an abortion which it was claimed she desired and believed that Hope, as an asserted medical student, was to perform the following day; that Hope left and returned the next morning about 11:00; that he gave Hope all the money he had, about $100, and left about 1:00 p. m. because deceased ‘had been too good to me and I just couldn't have anything to do with that part of it’; that Hope said deceased would die in about one hour; that he (defendant) returned about 4:00 p. m. and found Hope intoxicated and that Hope had deceased ‘full of liquor’; that Hope told him he had put her foot in the box containing a snake; that Hope left and returned at 6:00 a. m., Monday, August 5, 1935; that he suggested calling it off but Hope said they had gone too far to stop; that at Hope's suggestion he left for his barber shop with the understanding that Hope would ‘care’ for the deceased, who was still alive, by burning the ‘house up’; that Hope came to the shop about 1:00 p. m. and reported that he had not burned the house but had thrown deceased ‘in the bath tub and drowned her’ and then placed her body in the fish pond; that he up-braided Hope for ‘the worst thing you could have done’ because he [defendant] ‘had a wife drown in a bath tub in Colorado Springs a little while ago’; that he told Hope ‘there ain't enough men in the District Attorney's office to make me talk’, adding ‘and there wasn't if he [Hope] had not told it’; that he then arranged to have the Pembertons, who were innocent of the situation and whose testimony is related above, go home with him; that when he left for his shop on Monday morning he did so with the idea that deceased ‘was to be murdered by Hope’ and they were to share equally in the proceeds of her insurance; that the snakes were purchased for that purpose and deceased, as a ruse, was informed a desired abortion was to be performed; that after deceased's burial and while intoxicated, he may have offered the Reed woman a $1,000 to say she saw deceased alive in her yard on the day of her death; that the letter above referred to was written by deceased while intoxicated and under his direction; and that his statements were ‘the true stuff’ and made freely and voluntarily. During this session, Hope was brought in to the room and confronted the defendant.

With the foregoing evidence before it the jury had ample support for its verdict. In his confession the defendant admitted his participation in the death of deceased, though he again undertook to point to his accomplice as the principal actor. Under settled principles, this would not, however, serve to relieve him from full responsibility for the homicide which he and his accomplice planned and perpetrated.

In addition to the evidence above narrated, and as tending to prove that the death of deceased was not the result of accident, as it at first appeared, but was deliberately planned and executed in order to collect insurance money payable on the death of the victim, the prosecution offered evidence tending to show that a former wife of the defendant, equally heavily insured in favor of the defendant, while recovering from serious injuries incurred in an automobile accident in 1932, which the defendant survived with but little inconvenience, was likewise found drowned in the bathtub of their home with resulting monetary benefit to the defendant. In making the offer of proof in the absence of the jury, the district attorney stated that he would adduce evidence tending to show that the defendant struck his former wife on the head with a blunt instrument and then ran the automobile in which they were riding off the Pike's Peak Highway and the victim not having died from the injuries so incurred was later and while recuperating, drowned in the bathtub. This evidence, hereinafter briefly narrated, in our opinion, was sufficient, prima facie, to indicate that defendant had been a party to the death of a former wife under somewhat similar circumstances and it was apparently offered and admitted as tending to show common plan or scheme in the execution of two homicides and an absence of accident in the deceased's untimely demise. Defendant unsuccessfully objected to the admission of this evidence on the ground that it would fail to establish any of the elements of the offense for which he was on trial and would serve only to prejudice him before the jury.

In support of its offer of proof the prosecution produced several witnesses. The first, J. D. Rogers, superintendent of the Pike's Peak Highway, testified that he first saw the defendant about 7:00 p. m., September 21, 1932, at Glenn Cove, Colorado, where the defendant reported that he had been in an automobile accident; that defendant's clothes were ‘neat’ and not soiled or disarranged; that he drove the defendant back to the scene of the accident, the defendant stating that he ‘really don't know how it happened’ as his (former) wife had been driving coming down the mountain while he was looking across the valley with field glasses; that defendant said the car suddenly left the road and that he (defendant) jumped from the car after it had travelled about fifty feet down the mountainside; that the car came to rest against a large boulder one hundred and fifty feet below the road; that he (the witness) found the deceased lying on the right hand side of the car (though she was supposed to be driving on the left side) with her head down hill and her feet on the running board of the car; that her clothes were free of dirt; that the car rested on its wheels; that there was considerable blood inside the car, especially on the back of the cushion on the right side and on the floor boards; that a hammer on the floor of the car was covered with blood; that he smelled liquor from the deceased and felt a softness behind her ear when he lifted her; that there were foot prints back about eighty feet where the car left the road and on either side of the tire marks, some pointing to where the car went off the road; that the defendant's car was the last one to come down the mountain that particular evening, all others having checked out ahead; and that the defendant appeared quite calm.

Miss Grace Yarnell, a cousin of this former wife of the defendant, testified that she had visited the injured woman while she was recuperating in the hospital, which covered the period from September 21 to October 8, 1932; that she saw the injuries over her cousin's right eye and back of her ear; that after October 8th she saw the injured person in a cottage in Manitou Springs, Colorado, where defendant had moved her prior to complete recovery; and that defendant had told her he was thrown free of the car and had lifted his (former) wife from the car and placed her on the ground with blankets about her.

Gerald Rogers testified that he worked in the local grocery store in Manitou Springs; that defendant came to the store about 5 p. m. on October 14, 1932, ordered some groceries and asked that they be delivered; that defendant then said that he would ride home with the witness; that he (the witness) went into the kitchen and the defendant went into the bedroom and then to the bathroom; that defendant then called him and he saw defendant's wife lying on her back in a half-filled tub of luke-warm water. On cross-examination, it appeared that the defendant had ridden home with him on prior occasions.

Dr. George B. Gilmore testified that he was coroner in 1932; that he saw defendant's (former) wife on October 14, 1932; that she was then on a bed and dead; that defendant said he had been away from home for several hours at the time of her death; that the defendant related that the doctors in the hospital had theretofore warned deceased against washing her hair because of her head injuries but that she apparently had undertaken it in his absence and drowned as a result; and that he (the witness) suggested an autopsy but defendant opposed it, saying he ‘couldn't permit anything of that sort.’ The doctor then identified certain letters subsequently addressed to him by the defendant requesting a change in the death certificate in order to show that the drowning was attributable to the injuries received in the earlier automobile accident (apparently to facilitate collection under the accidental and double indemnity provisions of the insurance policies.)

Mrs. Irene F. Snyder, bookkeeper at the hospital, testified that defendant's former wife was there confined from September 21 to October 8, 1932, and that the defendant had stated at the time that he was without funds to pay the bill but intended negotiating a loan on an insurance policy. There is other evidence that defendant was financially embarrassed and had borrowed money about this time.

The prosecution produced Doctor Decker, concededly qualified to express medical opinions, and who examined and interpreted certain x-ray photographs theretofore taken in the Colorado hospital, who testified that, in his opinion, the defendant's former wife suffered fractures of the skull from two blows, one on the side and the other on the front of the head; that the fractures had been caused by a hard, moving object being projected against the head and not by the head being projected against a hard, stationary object; and that the blow on the side of the head had been received first. That this evidence tends to support the prosecution's theory of a felonious assault on defendant's former wife must be admitted and defendant concedes in his brief that it was for the jury to weigh this evidence as against his conflicting medical testimony touching the same subject.

John A. McKelvey testified that when defendant purchased a car from him in 1932, he stated that his previous car had been wrecked when the steering knuckle broke and the car went off the Pike's Peak road as he was driving.

C. A. Pries, who was with the Prudential Life Insurance Company in 1932, testified that the defendant at that time told him he had an insurance prospect for him; that he later met Miss Winona Wallace (who subsequently became defendant's wife and, as shown, was found drowned in the bathtub of their Colorado home) at defendant's apartment; that defendant said he wanted a $5,000 policy on himself and a similar policy on the lady; that the defendant asked if he could be named beneficiary in the latter policy and was informed that this was not possible until the parties were married; that the two policies were later delivered, the defendant being named beneficiary in the lady's policy; that upon the death of the lady (who, as stated, had prior to death married defendant) the defendant asked for double indemnity payment under the policy; and that the defendant only carried his own policy for three months. The witness thereupon identified a check sent later to the defendant in payment of his claim under the policy.

Bayard Judd, who was with the Kansas City Life Insurance Company, testified that just prior to the death of Winona Wallace James (defendant's former wife), she and defendant had sought an immediate loan on that company's policy covering her life.

We find no error in the trial court's admission of this evidence touching the Colorado incident involving the death of a prior wife of the defendant under circumstances similar in many respects to the circumstances surrounding the death of the deceased for which he was on trial. In each instance the defendant had placed his asserted victim in touch with insurance agents with a view to and ultimate procurement of life insurance on her. In each instance defendant inquired whether he might be named beneficiary when the parties were not married. In each instance he received a negative reply and thereafter married the asserted victim. In each instance a policy or policies were issued naming him as beneficiary. In each instance the insured was shortly thereafter found drowned in or near the home she occupied with the defendant under circumstances having an appearance of accident but upon full and close inspection tending strongly to indicate foul play. In each instance the defendant claimed under the accidental, double indemnity provisions of the policy or policies and, in each instance, ultimately profited financially by the collection of his wife's insurance.

In view of these many similar and unusual circumstances, we are of the view that the evidence of the Colorado incident was admissible not to prejudice the defendant by proof of the prior commission of another crime but as tending to establish that the death of the deceased in the present action was not accidental, as it might at first appear, and as claimed by the defendant, but was the result of a general plan or scheme on the defendant's part to insure, marry and murder his victims in order that he might thereby profit financially. In its instruction to the jury, several of which were requested by the defendant, the court below properly limited the purpose for which it might consider this evidence. That evidence of prior similar acts and crimes is admissible for the purposes already mentioned, is now well established. People v. Stutsman, 66 Cal.App. 134, 225 P. 477; People v. Barnes, 111 Cal.App. 605, 295 P. 1045; People v. Morani, 196 Cal. 154, 160, 236 P. 135; Holt v. U. S., 6 Cir., 45 F.2d 103, 106, 107; People v. Gosden, 6 Cal.2d 14, 24, 56 P.2d 211. See, also, the English ‘bathtub’ murder case, R. v. George Joseph Smith, 21 Cr.App.R. 229, 236.

The Morani case, supra, contains the following [196 Cal. 154, 236 P. 138]: “In the case of People v. Seaman, 107 Mich. 348, (65 N.W. 203, 61 Am.St.Rep. 326), it is said: ‘Upon principle and authority it is clear that where a felonious intent is an essential ingredient of the crime charged, and the act done is claimed to have been innocently or accidentally done, or by mistake, or when the result is claimed to have followed an act lawfully done for a legitimate purpose, or where there is room for such an inference, it is proper to characterize the act by proof of other like acts producing the same result as tending to show guilty knowledge, and the intent or purpose with which the particular act was done, and to rebut the presumption that might otherwise obtain.”’

It is stated in the Holt case, supra [42 F.2d 106], that:

‘No good purpose would be served by a review of the myriad of cases where evidence of other and collateral transactions has been admitted to prove the quo animo, scienter, motive, or intent of the defendant in the doing of a particular act; nor in restating the circumstances under which such evidence may strongly tend to support the charge made. Many of the authorities would be inapplicable to the present case, for there the evidence was introduced to show knowledge, while here its purpose is to negative the claim of accident and the alleged innocent motive, injected into the case by the defendant himself. It is sufficient to say that from the earliest times the propriety of admitting evidence for the purpose here stated has been fully recognized. * * *

‘When introduced to show intent, or repel the possibility of accident or mistake, the time of occurrence of the collateral circumstance is immaterial. Such duplication of the same situation is just as abnormal after the time laid in the indictment as before. Accordingly it is held that evidence of the collateral circumstance after as well as before the alleged commission of the crime may be admitted. * * * The courts generally use the phrase ‘at or about the same time,’ but it is clear, we think, that the length of the separating interval, and the fact that evidence of but one other similar instance was here proved, go only to the weight of the evidence, not to its admissibility. * * * In each case the question is, and of necessity must be, whether the evidence tendered has probative effect, logically and under the doctrine of chances. If it has, and we think such is the case here, it should not be excluded simply because it also shows the commission of another crime. This last fact is immaterial.'

In the Gosden case, supra, the evidence tended to show that approximately six years prior to the death of his wife for which defendant was then on trial, a former wife of the defendant came to an untimely death under somewhat similar circumstances. We there declared that [6 Cal.2d 14, 56 P.2d 215]: ‘Turning now to the questions of law raised by appellant, the first contention made is that the trial court erred in admitting evidence of the death of appellant's former wife, Vivian Taylor Gosden. It is not necessary to repeat the evidence to show the similarity of the circumstances surrounding the deaths of appellant's two wives. This evidence tended to show that each died of strychnine poisoning, each was insured with the appellant as the beneficiary, and in each case the appellant attempted immediately upon the death of the wife to collect the insurance upon her life. The evidence as to the death of the first wife and the fact that her life was insured with the appellant as beneficiary was properly admitted to show the motive of appellant in the murder of his second wife. People v. Northcott, 209 Cal. 639, 652, 289 P. 634, 70 A.L.R. 806.’

Nor do we think that in the present case the prosecution was required, as urged by defendant, to prove the elements of the asserted Colorado crime beyond all reasonable doubt, as would be the case were the defendant standing trial for such asserted earlier offense. In this connection it is declared in Lund v. State, 207 Ind. 347, 190 N.E. 850, 853, that: ‘It is only the ultimate material facts to which the rule of reasonable doubt applies. The facts regarding the other transactions were simply evidentiary facts introduced for the purpose of being considered, together with all of the other evidence in the case, upon the question of criminal knowledge and intent; and though the jury may have entertained some reasonable doubt as to some of the other transactions, or some of the other items of evidence, which tend to prove guilty knowledge or intent, if, notwithstanding that fact, and having considered the evidentiary facts, doubtful and otherwise, they were convinced beyond a reasonable doubt of the ultimate fact of guilty knowledge and intent, it is sufficient.’

In 1914, Ohio adopted a contrary rule when in the case of Baxter v. State, 91 Ohio St. 167, 110 N.E. 456, 458, to which the defendant refers us, it was declared that: ‘Evidence that an accused was guilty of other similar offenses must be such that a jury would be authorized to find him guilty of these offenses.’ However, defendant has failed to note that in the later case of Scott v. State, 107 Ohio St. 475, 141 N.E. 19, 26, the Ohio court renounced the rule of the Baxter case, declaring:

‘Is the rule in the Baxter Case based upon sound reason? It has long been the general rule that a conviction is warranted if on the whole evidence the jury is satisfied beyond a reasonable doubt that every material element charged in the crime exists, and that the defendant is guilty of the crime charged. In other words, it is the holding that the state need not establish each particular fact of the case beyond a reasonable doubt, if it establishes beyond a reasonable doubt the existence of every material fact alleged in the indictment and the guilt of the defendant. * * * If testimony with regard to other similar crimes is to be dealt with as other evidence, it falls under this general rule and need not be discarded simply because particular items tending to prove other similar offenses are not established beyond a reasonable doubt, so long as the jury, from the whole testimony, are convinced to a moral certainty of the guilt of the defendant of the crime charged and of the existence of every material element necessary to establish that guilt.

‘That this common sense view of the situation obtains in certain other American jurisdictions is shown by the fact that while the case of Baxter v. State, supra, is the leading case which lays down the doctrine here discussed, it is by no means universally followed in its exact terms. While the Baxter Case is frequently cited, the degree of proof required in this class of testimony is held on excellent authority to be positive or substantial, but not ‘beyond a reasonable doubt.”

In effect, we recently held in People v. Thorne, 10 Cal.2d 705, 708, 76 P.2d 491, 493, that evidence which merely tends to show an attempt to commit or the commission of other offenses is admissible to prove common scheme or plan even though it falls short of proving the corpus delicti of such other offenses. In so concluding, we quoted from People v. Whiteside, 58 Cal.App. 33, 38–41, 208 P. 132, to the effect that: ‘If viewed with respect to its relevancy as tending to show that the facts constituting the charge contained in the information were a part of a scheme to defraud the public as distinguished from a single individual, it was not necessary, in order that Stivers' testimony be admissible that an attempt be shown to have been made to sell him any stock or that the evidence, if accepted as true, should tend to show the commission of an offense like in character to the one charged. * * *’

We also there quoted from People v. Sindici, 54 Cal.App. 193, 196, 201 P. 975, to the effect that: ‘Where the very doing of the act charged is in issue [as here] and is to be evidenced, one of the essential facts admissible is the person's plan or design to do the act. This plan or design itself may be evidenced by his conduct, and such conduct may consist of other similar acts so connected as to indicate a common purpose including in its scope the act charged. * * *’

In People v. Baker, 25 Cal.App.2d 1, 76 P.2d 111, 112, it is declared in part that: ‘It is not essential that such similar transactions shall have resulted in the commission of a crime. It is sufficient if they tend to prove a scheme of the defendant which included the acts charged.’

In view of what has been said we are of the opinion that upon its offer of proof of the prior and in many respects similar Colorado incident, the prosecution made a substantial showing tending to prove that on that occasion (as well as on the one here under review) the defendant had financially benefited by the untimely drowning at home of his wife on whom, as here, he had previously procured insurance in which, as here, he was named beneficiary. Upon this substantial offer, later supported by the proof above narrated, the court below correctly admitted the evidence touching the prior incident in order that the jury in its weighing of the entire evidence might determine whether it tended to show a common plan or scheme on the defendant's part or tended to overcome the asserted element of accident involved in the death of the subsequent wife, for which death he was then on trial.

But, even if we assume, as defendant would have us do, that the authorities require the asserted prior Colorado homicide to be proved beyond all reasonable doubt, no prejudice could have resulted to the defendant from the admission of the evidence for the court below, concluding that the rule as is now being assumed, instructed the jury that it must believe beyond all reasonable doubt that defendant's former wife was murdered before it could consider the facts of that transaction in connection with the case at bar. It is to be assumed that the jury abided by the instructions given by the court.

In an effort to show that the deceased was alive on Monday morning, August 5th, when according to Hope's story she was dead, defendant produced a neighbor who testified that when he was in his yard at 9:25 a. m. on said morning he saw a mature, blonde woman, approximately five feet eight inches tall, wearing a rust colored smock, in the defendant's yard; that he had seen a woman in the yard on previous occasions but could not say it was the same one; and that he had never met the deceased nor had she been pointed out to him. Even if it be conceded that the person so described by the witness bore a resemblance to the deceased, the matter was one for the jury to resolve along with all other conflicts in the evidence.

The defendant's sister testified that she visited with him and the deceased early in July, 1935, and saw Hope there on several occasions; that she heard the deceased state she desired an abortion whereupon the defendant said Hope would ‘take care of her’. The witness also testified that during 1933–34 the defendant had loaned her several hundred dollars. This evidence was apparently offered for the purpose of overcoming the prosecution's showing that defendant was financially embarrassed and in need of the deceased's insurance moneys.

Defendant also called one of the barbers in his shop who testified he saw the defendant on August 5, 1935 (after the killing but prior to the finding of deceased's body) and that he appeared normal, was not intoxicated and did not exude an odor of liquor. This testimony obviously was intended to rebut portions of Hope's testimony, particularly that part to the effect that during and immediately following the commission of the homicide he and the defendant had imbibed rather freely of liquor.

The defendant also produced a naturalist who expressed his views as to the habits of snakes, their average life when held in captivity and the effect of snake bite upon human beings.

The defendant took the stand in his own defense and denied Hope's story that they had planned to murder, and had murdered, the deceased, by means of rattlesnake infection, drowning, or otherwise. He did testify, however, that Hope came to his home on July 3, 1935, in an intoxicated condition and expressed a desire to stay; that he told Hope to return sober the following day; that Hope, at the time, had with him a box of rattlesnake venom (which tends to corroborate portions of the prosecution's testimony to the effect that Hope was at the defendant's home and possessed reptile venom); that on July 6th, Hope came to his barber shop and again asked leave to stay at defendant's home; that he gave Hope the key and he came that night and stayed several days; that he introduced Hope to the deceased, his sister and his niece as ‘Dr. Smith’; that at one of the breakfasts the parties discussed the pregnancy of the deceased and deceased during the course of the conversation stated that she could not go through with the ordeal of child-birth and that ‘Dr. Hope will take care of me’ (though earlier defendant had testified he introduced Hope as ‘Dr. Smith’); that he saw Hope again on August 3rd (which corroborates Hope's story of being with defendant two days prior to the homicide) but that Hope did not deliver any rattlesnakes to him; that Hope came to his home on August 4th (the day prior to the homicide) to abort the deceased (again corroborating Hope as to being at defendant's home at that time); that he did not approve of an abortion and left home while Hope ‘cared’ for deceased; that Hope left about 1:00 p. m. of that day and he did not see him again between that time and the time of the asserted drowning of deceased the following morning; that while he aided the deceased in taking out insurance on her life he did not do so with any thought of thereafter murdering her and collecting the same; that he did not cause the deceased to write the unmailed letter to her sister, found in the house and referred to above, but in his ‘confession’ had admitted so doing because one of the officers required it; and that on they day before her death the deceased stated to him that she had cut her foot on a tin can while walking barefooted in the yard (this apparently to explain the laceration on her foot which the prosecution contended was inflicted by the fang of a rattlesnake.) On cross-examination the district attorney confronted the defendant with his inconsistent statement made to the police on August 7th, two days after deceased's demise, and several months prior to his arrest therefor, to the effect that she had not mentioned a cut or swollen foot to him. Inconsistencies between his testimony and prior statements to friends as to the movements of deceased and himself on Sunday, the day preceding her death, appear in the evidence. In rebuttal of his testimony that he opposed the abortion which deceased assertedly desired, the prosecution recalled Mrs. Pemberton, the friend who was with her husband and defendant when the body was found, whereupon she testified that a few days before the deceased's death the defendant told her (the witness) that deceased was ‘crazy to have a baby, but I don't want one’. We will not undertake to set out additional inconsistencies in statements of the defendant. These were matters for the jury to determine in its consideration and evaluation of the entire evidence. The jury was fully instructed on the law and no complaint is here made of any of the instructions.

The entire record has been examined and all contentions advanced have been considered. Reference to other items of evidence not here mentioned would neither add to nor detract from the conclusion here reached. Sufficient has been said to illustrate that the verdict finds ample support in the evidence and that the judgment entered thereon should remain undisturbed.

The judgment and order are, and each is, affirmed.

I dissent. The Court opinion is so deficient in its statement of the facts to which it refers in general and sweeping terms as supporting its conclusion that it becomes necessary to set forth much of the evidence which was adduced in the case in order to appreciate the kind of evidence, with all of its weird absurdities and vagaries, which must be given verity in order that the judgment in the case may stand. This case makes it singularly appropriate that the familiar rules which cannot be ignored in the consideration of criminal cases be re-stated. A few of these cardinal principles are: that suspicion, however strong, will not justify a conviction of crime; that probabilities alone are not sufficient to sustain a conviction; that a person may not be convicted upon the doctrine of chances, that is to say, that the chances are greater that he is guilty than that he is innocent; that the proof of guilt must be of the character and quality which convinces the mind beyond all reasonable doubt and to a moral certainty of the guilt of the accused; that ‘a conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. * * *’ Section 1111, Penal Code. Lastly, the evidence must be reasonable and substantial and not of a haphazard or irrational type, or rendered inherently improbable or doubtful by its own unreasonableness. It must bear the stamp of sincerity and truthfulness, rather than bear the impress of fabrication.

This case presents a perfect illustration of the dangers and abuses which result from a failure in the trial of criminal cases to adhere to the age old rules and maxims of criminal jurisprudence, which are cherished next only to the Magna Charta as safeguards of life and liberty when either is placed in jeopardy by an accusatory process. At least six major issues, including two entirely different alleged attempts to take life by different methods, were injected into the case, which no doubt greatly influenced the jury against the defendant in the consideration of the evidence relevant only to the commission of the crime charged in the indictment. This evidence no doubt created such strong prejudice against the defendant that it is extremely questionable that the jury was able to withstand its influence and calmly and dispassionately weigh the credibility of the witnesses by the application of ‘the rule of reasonableness', or to observe the presumptions and inferences with which the law clothes all persons charged with the commission of a public offense. Other errors which we deem equally as prejudicial to the rights of the defendant as those above mentioned will receive the attention which their importance merits.

Some twenty years prior to his indictment, defendant adopted the name of Robert S. James, and we will refer to him by the name of his adoption. For a period of fifteen years he conducted a barber shop in the city of Los Angeles, in the name of James, and he was known solely in his business transactions and to his friends and acquaintances by the name of Bob or Robert S. James. He is a native of the state of Alabama, and was a member of a large family consisting of a mother, brother and several sisters. Numerous collateral relatives on both sides of the parental tree constituted the gentry with whom he spent his early boyhood days, in hard circumstances of poverty, in a rural community. His father, who was an itinerant watch and clock repairer, laterly drew apart from the mother and the children, and the latter, being left in the mother's care, were compelled by force of circumstances, in every instance, to leave their home at early ages and find employment in order to maintain themselves and the household. The defendant's school advantages were very scant. At an early age he worked in cotton mills, a coal mine, and, finally, with the assistance of relatives, he was enabled to attend a school conducted for the preparation of young men who planned to engage in the barbering business. He followed this trade—except for the time he spent in the service during the World War—from early manhood to the time he was formally charged with the murder of his wife, Mary Emma James, on May 6, 1936, at the city of Los Angeles where he conducted the usually appointed barbershop, consisting of three or four chairs, with a beautyshop stall or apartment, located at 522 West 8th street, a business district in said city. His patrons consisted of persons engaged in business in the area in which his shop was located, and the general public desiring the services of a barber. Among his patrons were several life insurance agents or representatives of life insurance companies, who were on cordial terms with him. They had frequently requested him during years of business contact to give them the names of his customers who might likely become interested in life insurance. The defendant, in several instances, interested himself in their behalf by assisting them with information and using his good offices with his patrons in procuring applications of desirable prospects for life insurance policies in the several companies represented by said agents. There is nothing in the record which tends to indicate that he did not conduct himself and his business in an orderly and business like way, until after he became the special subject of a most intensive investigation conducted by the district attorney's office, aided by a dozen or more investigators attached to that office working in concert with certain members of the police department and the sheriff's office. The starting point of the investigation is not made certain by any member of the party in charge of the investigating forces but evidently it was begun shortly before the defendant was taken into the personal custody of said officers, and held in detention for several days in a private residence, without authority of law. Not until the alleged confession of the defendant had been procured, which will hereafter be considered, was he formally charged with the murder of Mary James, and officially lodged in the county jail, the place provided by law for the detention of persons held to await trial for the commission of felony charges.

Defendant Robert S. James, and Charles H. Hope, were indicted on May 6, 1936, and arraigned on the same day. On May 11th, each defendant entered his plea of ‘Not Guilty’ and James entered the further plea of ‘Not Guilty By Reason of Insanity’. The case was thereupon set for trial to begin June 22, 1936. Defendant's application for thirty additional days to prepare for trial and to take the deposition of witnesses residing in the State of Alabama as to his mental condition, was denied. Counsel entered into stipulations as to the taking of certain depositions and the trial began on June 23, 1936. On the following day Hope was sworn and became a witness in behalf of the prosecution. On arraignment day the Court appointed the public defender as attorney for Charles H. Hope, but as he withdrew his plea of ‘Not Guilty’ and entered a plea of ‘Guilty as charged in the indictment’ on or before the first day of the trial, the public defender appeared in court only at such times as it was necessary for him to join in a request for the postponement of judgment to a day subsequent to the conclusion of the trial of James, which event occurred on July 28, 1936. That Hope's change of his plea and alignment with the prosecution was unduced by the hope of receiving some favor or immunity is too self-evident to require argument. The judgment pronounced by the Court upon Hope was imprisonment for ‘the term prescribed by law’. This judgment relieved him of the death penalty. Four days prior to the day judgment was pronounced on Hope, Robert S. James had been found guilty of murder of the first degree, which carried with it the death penalty, and the Court, on September 10, 1936, made a formal pronouncement of judgment by imposing the death penalty on him in accordance with the jury's verdict. The plea of ‘Not Guilty by Reason of Insanity’ was withdrawn and this appeal was taken from the order denying defendant's motion for a new trial and from the judgment of conviction; also upon assignments of misconduct on the part of the district attorney and the Court respectively, during the course of the trial. It is sufficient to concern ourselves only with those assignments which constitute the major grounds of the appeal. It can be said without fear of overstatement of the fact—if the circumstance is of sufficient importance to merit mention in our judicial records—that in no case which has come to the attention of this Court for review, in its entire judicial existence, has the spectre of weird, ghastly and unnatural wickedness, from first to last, stalked a judicial proceeding in such hideous forms as are set forth in the presentation of the instant case on behalf of the People. The rule is well settled in criminal law that evidence pertinent to the investigation of a material fact or issue in the case is admissible notwithstanding the fact that it may tend to reflect prejudicially or unfavorably upon the character or credibility of the person whose acts are under investigation. But the rule is otherwise when it cannot be seen that proof, or proffered proof of an alleged fact or condition, would tend to establish the corpus delicti, or prove a single fact material to the case, but which, on the other hand, would have the effect of producing a state of mind that would render it less probable that the verdict would reflect the calm and dispassionate consideration of the jury unbiased by repeated references to improper matters.

Lord Chief Justice Hale's admonition uttered many years ago as to the great care and caution that should be exercised in the examination of those accusations and acts, detestable in nature and which are easily made and hard to be defended against, has been adopted as a canon of our American law. He said in part: ‘* * * the heinousness of the offense many times transporting the judge and jury with so much indignation that they are over-hastily carried to the conviction of the person accused thereof by the confident testimony sometimes of malicious and false witnesses.’ Doubly aggravated becomes the error where matter of the ineffaceable type is emphasized by frequent and vehement references both in the evidence and in argument. The reason for the observance of the rule which excludes all allusions to highly prejudicial or defamatory matters—true or untrue, and whether expressed in words or by exhibits—is that the minds of the investigators may be free to weigh dispassionately close and vexatious questions of fact unaffected by prejudice or hatred arising out of extraneous matters. It is not only the theory but the mandate of the law that every person accused of crime is entitled to be tried by a jury charged with the duty of making an earnest effort to resolve every reasonable doubt, intendment of law, and presumption of fact in favor of innocence, where it can reasonably be done, and where two opposing conclusions may be drawn from a given statement of facts, the one leading to innocence should be adopted, and the other, leading to guilt, should be rejected. The minds of the jurors must be kept free and uninfluenced by any matters or things which will tend to hinder them in strictly following the law in the discharge of this important office. The degree of harm or damage that may ensue by the violation of this age old rule of law is relative to the particular or kind of acts which constitute the particular crime under investigation. From what has been said we do not mean to imply that facts which are admissible under the law are to be excluded from the case because of any inherently prejudicial quality which they may possess, but we do say that if the offense is of such a nature that it must, from necessity, arouse in the mind of the average person a deep sense of aversion to a person charged with the commission of such offense, that circumstance does not give the prosecution the right to add other prejudicial matters which bear no proper relevancy to the crime charged, and which would thereby place the defendant in a more unfavorable light in the eyes of the jury, than he would have stood had the inadmissible evidence not been injected into the case.

It is appellant's contention that the double theory adopted by the prosecution as to the manner by which the life of Emma James was planned to be taken, first by the rapid and effective method of drowning, and secondly, by the much slower and less certain method of bringing about her death by the venom of a rattlesnake, are too self-contradictory, inconsistent and absured to form a common basis, and the two theories with their weird ramifications were invented and built up for the sole purpose of fomenting a state of irremediable hostility and ineffaceable prejudice in the minds of the jurors against the defendant, and were intended to serve, and did serve, as grounds for depreciatory allusions and references to matters which could not have been of the least assistance to the jury as aids in arriving at the truth of the charge. One rattlesnake was not deemed sufficient to execute the asserted fiendish purpose of the accused, according to co-defendant Hope, but three or four were obtained by him notwithstanding no claim was made that the deceased was bitten by more than one, and only one of the two fangs which rattlesnakes normally have, produced any mark upon the toe or body of the deceased, and that was on the underside or bottom of the toe.

The final theory of the prosecution is that the deceased came to her death from drowning by the criminal act of James. What part James took in accomplishing her death by drowning is left to speculation and conjecture. The bite of a rattlesnake is offered as a contributing cause of death. The cursory examination made by the autopsy physician showed that her lungs contained an unusually large quantity of water. When found, the upper part of her body was slightly beneath the surface of the water in a lily or fish pond. It requires no expert evidence to establish the commonly known fact that drowning takes place within a very short time upon submersion of the human head, and in far less time than is required for the venom of a rattlesnake to be carried through the blood stream from the toe, where the circulation of the blood is more feeble than in any other part of the human body, to the vital organs and cause death, even in those cases in which death ensues.

What aid the two live rattlesnakes which were brought into the courtroom, rattling and writhing, and thus exhibited to the jury, could have been to the jury in determining the cause of death on any theory, does not appear from a painstaking examination of the entire transcript of the proceedings, and we feel satisfied that the spectacular exhibition of the rattlesnakes, in the circumstances to be hereafter noted, unquestionably constituted prejudicial error.

Rattlesnake venom, even when it proves fatal, is slow in action compared with the quick and decisive method of death by drowning. It will be kept in mind that the evidence as to the use of rattlesnakes, as a means of producing death was certainly a highly controversial issue which rests wholly upon the word of Hope, an accomplice, whose testimony is not sufficient to support a conviction unless it is corroborated to the extent required by section 1111, Penal Code, and that issue was opposed by the only other witness to the alleged fact, the defendant, who unqualifiedly denied Hope's testimony as to the part rattlesnakes were made to play in hastening or having anything whatever to do with the death, or with any attempt to encompass the death, of the deceased. If Hope's testimony on this issue should be discredited, it would necessarily tend to impeach him generally. The rattlesnake issue is important for the further reason that a person who causes rattlesnake venom (poison) to be injected into the blood stream of a human being would be guilty of first degree murder in the event it actually caused death. In all likelihood the person so causing the death would be condemned to suffer the death penalty by virtue of the provisions of section 189, Penal Code, which provides that ‘all murder which is perpetrated by means of ‘poison, or * * * ‘torture’ * * * is murder of the first degree', or under the general rules of law which prescribe that all murder committed in an unusually cruel manner is murder of the first degree and subjects the perpetrator to the death penalty, at the discretion of the jury trying the case. We mention the penalty because a great deal of evidence was introduced in the case in support of the theory that the deceased, who was six weeks advanced in pregnancy, and had suffered from nausea, dizziness, and kindred symptoms of pregnancy to a degree that she became unusually miserable and discouraged as to her ability to pass through the ordeal of childbirth, may have come to her death by an attempted abortion practiced by Hope, with the assistance or connivance of James. The theory of accidental death caused by falling in a fainting spell, or by self-infliction also were issues which the defendant had a right to have the jury pass on.

If death ensued as the result of an attempt to commit an abortion, the degree of crime would not be higher than murder of the second degree, the maximum penalty being life imprisonment. Thus the penalty for criminal abortion was commensurate with the term meted out to Hope under his plea of guilty. We mention this matter in view of the Court's instruction to the jury that if it returned a verdict of guilty, it could not be less than murder of the first degree, and also as bearing on the reference made to the punishment of abortion during argument of counsel for the People as tending to buttress Hope's righteous motives; further, its tendency to render less effective the inferences which the defense was entitled to draw by reason of the delay in passing judgment on Hope's plea, which was early changed from ‘Not Guilty’ to ‘Guilty’, until after he had testified and the jury had rendered its verdict in the James case. Counsel for the People in decrying the abortion theory in his argument to the jury stressed the point that if the abortion story was true, Hope would have been a foolish man to have entered a plea of guilty of murder of the first degree with a possibility of suffering the extreme penalty in view of the principle of law that if Mrs. James died ‘as the result of an abortion to be performed on her by Mr. Hope, the very most that Mr. Hope could be guilty of, under the evidence, would be murder of the second degree, for which his life is not in jeopardy’. At this juncture counsel for the defense interrupted with the objection that counsel had no right to instruct the jury as to matters of law. The Court agreed with the objecting counsel that the jury must accept the law as given by the Court, but in so doing said that in view of what the deputy district attorney had stated the law of be ‘the Court informs the jury where an illegal operation is performed and death is a result therefrom and is caused thereby, the person performing such illegal operation is guilty of second degree murder’. The jury was not instructed and therefore did not know that punishment for second degree murder might equal in terms of years the punishment prescribed for first degree murder, which is imprisonment for life. That was the punishment imposed on Hope for the part he took in a homicide which the prosecution in its argument denounced as equaling the foulest crime that blackens the pages of our criminal calendars. The effect of the incident above referred to was to bolster up and support Hope's testimony on the theory that if death was in fact caused by an attempt to perform an abortion, he would not have thrown away an opportunity to avail himself of that defense, and thereby preclude the possibility of the infliction of the death penalty. It is convincing beyond all question from the vigorous and vehement manner in which the death penalty against James was urged at every stage of the proceedings as the only verdict that could vindicate the law, that an offer on the part of Hope to plead guilty to second degree murder, if made, would have been rejected inasmuch as it would have tended to weaken the theory on which the death penalty was urged against James. Such a plea would have practically committed the prosecution of James to the abortion theory. The defense insists that its claim made throughout the trial, which in substance was that Hope was induced by promises that if he would change his plea of ‘Not Guilty’ to a plea of ‘Guilty’, and align himself with the prosecution, said officers would use their best efforts to relieve him of the extreme penalty, was weakened, if not destroyed, by the trial incident referred to. It is contended that it put Hope in the favorable but false light of having been moved solely by the promptings of conscience, and not at all induced by promises or understandings that his life depended on his performance as a witness, and being so moved, he voluntarily decided to tell the truth at the risk of forfeiting his life, rather than to stand on a defense which would have absolutely barred the imposition of the death penalty. Later the abortion theory, of which there is much evidence, was erroneously, we think, ruled out of the case by the Court instructing the jury that there was but one of two verdicts that could be rendered, to wit, murder in the first degree, or not guilty of any crime. Consideration will be given later to the evidence bearing on this issue.

We are confronted in our examination of this appeal with a record of tremendous proportions, larger by far than is necessary to present every substantial question which merits serious consideration. Much space is devoted to ultra sordid and sensational subjects, many of which transgress the limits of rational conduct. The transcript of testimony contains more than two thousand five hundred pages of typed matter and the clerk's transcript exceeds two hundred pages, not to include voluminous printed briefs. This being a case in which the death penalty was imposed, and for the further reason that so many strange and inexplicable acts and incongruous situations are set forth as forming a part of the plan to take the life of the deceased, we deemed it our duty to assume the laborious task of making a careful examination of the entire record. It includes not only the proceedings had in the single charge of murder, alleged in the main case to have been committed August 5, 1935, the consummation of which the prosecution has advanced two theories, one being that Mary James met her death by drowning, accomplished by James, the motive being to collect on certain life insurance policies issued on her life in which he was the beneficiary; and the other theory being that James, with the assistance of Hope (whose part in the homicide is left in an equivocal state as to whether he acted with the criminal intent in the commission of the specific homicide alleged in the indictment or whether he believed he was aiding and abetting a plan to murder a different and unnamed person) aided in accomplishing her death by thrusting her left foot into a box containing a rattlesnake procured by Hope at the behest of James, whereby her toe was bitten by said snake, in furtherance of the plan to cause her death by rattlesnake venom. The record also contains evidence which has to do with a different and distinct crime committed in another state, some four years prior to the crime alleged in the indictment, which evidence the People claim proves, beyond a reasonable doubt and to a moral certainty, that James, being prompted by a similar motive, conceived and executed by the adoption in part of similar methods, did, on September 21, 1932, attempt to murder, and a few days thereafter, towit, October 14, 1932, in the State of Colorado, succeed in murdering his former wife, Winona James, commonly known as Nona James, he being the beneficiary named in insurance policies issued on her life.

At the time of Winona's marriage to the defendant, she carried insurance policies on her life aggregating the sum of $9,000 payable in case of death by natural causes. One of said policies which paid a death benefit of $5,000 also provided double indemnity in case of accidental death. James was made the beneficiary in said policies, as he was in the policies afterwards issued to Mary James. He was paid double indemnity on the $5,000 policy on Winona's death, proof of accidental death being satisfactorily established. The sum total which he received as beneficiary under said policies issued to Winona amounted to $14,000.

On September 21, 1932, a few days after the marriage of Winona and James, he and his wife set out on a trip by automobile, to visit James' former home in Alabama where a number of his near relatives resided. A number of his wife's relatives resided near Manitou, Colorado, and they planned to stop on their journey to visit with them. While there, they took a trip as they had planned to do, to Pike's Peak. While descending the peak not far from its summit, (appellant's theory) the wife driving the automobile, lost control or failed to properly direct it, and it left the tortuous, steep and somewhat narrow gravelled road-bed and was precipitated a considerable distance down the mountain side before it became lodged against a large granite boulder. James, who according to his story, was viewing the scenery at the close of day with the aid of fieldglasses, jumped or was thrown from the car and received minor bruises and an injury to his back. Mrs. James being unable to extricate herself from the perils of her position suffered severe fractures of the cranial structure as a result of her occupancy of the car. She was taken to a hospital at Colorado Springs where she received medical care. She regained consciousness on the following morning and when her condition warranted, she was taken to a cottage which the defendant had rented and where he remained with her until she was found around 4:30 or 5:00 o'clock in the afternoon, by her husband, lying drowned in the bath tub, upon his return from a trip to the business district of Manitou, accompanied by the local delivery-man who was making a delivery of provisions purchased by James. The grocery store was approximately one mile from the James cottage and James had on previous occasions ridden with the delivery-man in making deliveries to the cottage. The cause of death was examined into by the county coroner and the officials who are charged with the duty of examining into the causes of death in such cases and no suspicion of any criminal agency was hinted at until April, 1935, some three years after the murder is charged to have been committed, and some eight months after the death of Mary James of whose murder the defendant stands convicted. It seems that the investigators of the district attorney's office for some time had been working on the theory that the defendant had murdered his wife. It came to them from some source that the defendant and Lois Wright were living together in incestuous relations. It was in the investigation of the incest charge and from information furnished by Madge Reed, whose connection with the case will later be considered, that the indictment was found. The investigators of the incest charges, which resulted in three convictions, and the murder charge involved in this appeal, and the murder of Winona, claimed to have been committed in the jurisdiction of Colorado, were developed together by the investigators attached to the district attorney's office, working in conjunction with certain members of the Los Angeles police force and the sheriff's office. James was taken into custody at his home, No. 3886 South La Salle avenue, and was held in detention in a privately owned residence, No. 3882 South La Salle avenue, located next door to his home, under the exclusive control of the prosecution's forces. In this house a dictaphone had been installed for spying purposes, operated under the direction of Police Officer Everett E. Kynette, the head of the ‘Spy Squad’. The means by which the evidence was obtained to effect James' conviction on the incest charges does not appear, but it is probable that it was accomplished with the use of the dictaphone apparatus and the spy system which was admittedly operated from the house in charge of the investigators located next door to the James home.

It would not be within the reasonable observance of the limitation of space or time to attempt anything resembling a complete review or analysis of the evidence introduced into the case. In fact, it would be practically impossible to harmonize much of the testimony given by the prosecution's chief witness, Hope, with a course of rational conduct. The motive which might prompt the commission of crime ordinarily discernible in every criminal case, is unquestionably present in the instant case, but the evidence amassed to prove the plan of execution takes such a wide departure from a normal course of conduct, making due allowance for the abnormalities of the criminal minded, as to require close scrutiny of the testimony of the witness upon whom judgment of conviction must ultimately stand or fall, as tested by the rule of reasonableness and examined in the light of the strength of the evidence relied upon to support the indictment.

There is little in the record which sheds light on the background of Hope's life. He was thirty-seven years of age at the time of the trial and testified that he was married. He testified that during the year immediately prior to the trial he had been engaged in the business of ‘building maintenance’ wihtout stating the nature of that business or where he was so engaged. He spoke of having been engaged in business at Pomona during his acquaintance with James but when asked by counsel for the defense the kind of business he was engaged in an objection to the question interposed by counsel for the prosecution was sustained on the ground that the question was immaterial. It appears by affidavits that he is an ex-sailor and had worked as a floor finisher. It also appears that he had had some kind of employment or connection with a drug concern for a time and that his employment was generally of the casual kind and in the nature of odd jobs. Evidently he was not engaged in any continuous employment and was idle a large portion of his time. He testified that he had known James for a period of seven years and that he had been a customer of his barbershop at irregular intervals and had at other times dropped in to exchange words of greeting. He also had borrowed small sums of money from James and had otherwise sustained friendly relations with him. James had let him use his car on a number of occasions. There is no suggestion in the record that a purpose to engage in a criminal conspiracy to take the life of any person by the instrumentality of poisonous reptiles, or otherwise, existed in the mind of either of the parties, until suddenly and unexpectedly, in the month of June, 1935, as the two walked from James' barbershop, James said to Hope, according to the latter's testimony, that a friend of his ‘had a wife who had been bothering him a bit and he was going to kill her and [the friend] wanted to get some rattlesnakes, and laughed about it.’ Hope corrected the above statement which he attributed to James to agree with the earlier testimony given by him before the grand jury in explanation as to the reason why the friend wanted to kill his wife, to read as follows: ‘I have a friend who has a wife that is keeping him broke and he wants to kill her. He is going to kill her with a rattlesnake.’ He further corrected his testimony to agree with his grand jury testimony, to read: ‘He (James) said this man will give you $100 to buy these rattlesnakes.’

It is the testimony of Hope that he did not know the identity of the woman thus marked for death but he nevertheless set about to procure and did procure rattlesnakes which he believed were to be used in the commission of a murder for which he expected to receive the sum of $100. Hope testified that he did not know the snakes were intended to be used as a means of killing Mrs. James until a very brief period before he assisted James in carrying the box containing the rattlesnake into the dining room, where, as he described, Mrs. James was lying on her back, strapped to the dining room table with her limbs extending beyond the edge of the table, and with strips of adhesive tape pasted across her eye-lids and over her mouth, with no garment on her body but a night-gown, partially upraised.

That Hope was at least given to the inordinate use of alcoholic spirits whenever obtainable is apparent from the evidence. His admissions, if accepted at their face value (but which are repudiated in the main by the defendant), would stamp him as occupying a low plane in the scale of moral perverseness, willing to take life by adopting indescribably wicked and cruel means of torture.

A large mass of evidence in the form of depositions bearing on James' mental capacity and temperamental characteristics as exhibited in his adolescent period and during his early manhood, was injected into the case by the attorneys for the defendant, primarily offered as tending to show that he was congenitally a weak-minded and incompetent person.

This testimony was primarily offered for the purpose of affording grounds for the exclusion of any testimony bearing on the purported confessions made to the investigators, on the grounds that James was a person without sufficient understanding and lacked the mental capacity to appreciate the import and effect of the alleged statements, or confession, which it is claimed he voluntarily made, and that he was mentally unable fairly to protect himself without the aid or advice of someone against the methods applied by the massed forces of trained and experienced investigators. This testimony, in the main, had very little, if any, relevancy to the commission of the specific act charged against the defendant, and it was not in itself sufficient to show that he was a person who, under normal circumstances, was unable to appreciate the common affairs of life. Whether he was a person who would be more likely to fall a prey to coercive methods than the average individual was a proper matter for the jury's judgment in the light of all the circumstances shown by the evidence, whether direct or deducible by reasonable inferences from proven facts. The mental capacity of a witness so far as it affects understanding or the intent of the person whose act is the subject to inquiry, is always a matter for the jury's consideration. The evidence was not of the kind, however, that would excuse the commission of a homicide on the ground that the accused was insane. The evidence bearing on the formative periods of his life disclosed both commendable characteristics and acts of youthful folly, neither better nor worse than those which might be expected to mark the conduct of the average boy reared under similar circumstances. It may be noted that it appears that he married in early manhood and whether this first wife died or the parties became divorced is not made clear. Whether the marriage was dissolved by death or divorce is not relied upon as a material issue in the case. It further appears that the defendant was a fancier of, and, at times, was the owner of, game chickens and a particular breed of bulldogs.

His acts with respect to matters that occurred during his maturer years will hereafter receive such notice as their relevancy may seem to require.

We are now brought to a consideration of the evidence which has a direct bearing on the specific murder alleged in the indictment, to-wit, the alleged felonious killing of Mary Emma James, with malice aforethought.

Mary Emma James' name before marriage was Mary Emma Busch, and she was a beauty parlor operator. She was a woman evidently in her thirties and James was approximately forty years of age at the time they were married. Mary Emma Busch, to whom we shall also refer to as Mary or Mary James, entered the employ of James in March, approximately five months before she was discovered dead, August 5, 1935. She and Miss Viola Lueck, who since the death of Mary James, married James Pemberton, had been companions and intimate friends for approximately two years prior to the marriage of James and Mary Busch. Miss Lueck was an employee of the telephone company. She met James for the first time the next day after Mary Busch (Mary James) had become acquainted with him. She and Mr. Pemberton were engaged to be married during the period of time immediately preceding Mary's death, and it had been arranged that the wedding was to take place at the James home. Naturally a relation of cordiality and friendship existed between James and wife on the one hand, and Mr. Pemberton and his intended bride, on the other. Mutual social relations existed between the two couples, and exchanges of social courtesies were quite frequent. The James home was located at 1329 West Verdugo road, La Canada, county of Los Angeles. The home was pleasantly situated and was built in cottage fashion. The yard was planted to garden grasses and contained shrubbery, flowers and a few orange and fruit trees. A lily pond occupied a part of the front yard. Cement walks led to and around the pond and walk-ways meandered the gardens. A garage, a chicken pen, in which some four dozen chickens were kept, and a yard in which three dogs were kept, constituted the rear of the premises. The house appears to have been located in an attractive sylvan district.

Mr. Pemberton and Miss Lueck had visited Mr. and Mrs. James on Wednesday evening, July 31, five evenings prior to the finding of Mrs. James' dead body. At that visit the celebration of the Pemberton-Lueck wedding was discussed. It was arranged on that evening that the James were to take dinner with Miss Lueck and Mr. Pemberton at the apartment house where Miss Lueck was living, on Monday evening, August 5, provided Mrs. James, who had been suffering from symptoms of pregnancy, was able to come to Los Angeles. If not, they were to dine at the James' home. About two o'clock Monday afternoon, August 5, James called up Miss Lueck at her apartment, and told her that Mary was not feeling well enough to come to Los Angeles and asked her and Mr. Pemberton to come out to his home for dinner. He said that Mary had the vegetables ready, and that he would stop and get the steaks and necessary food on the way to his place. He said that he would meet her in front of the telephone office where she worked at 7:30, after he closed his barbershop. James arrived in due time with Mr. Pemberton, whom he had picked up on the way to meet Miss Lueck. The latter got into James' car and the party drove to a market, where James bought steaks and some cottage cheese. He said the cottage cheese was for Mary in case she could not eat steak.

The three, James driving, arrived at the James' cottage at 8:10 or 8:15 in the evening. He drove into the driveway at the back of the house and parked. Both witnesses, Miss Lueck and Mr. Pemberton, testified that James' conduct and appearance was usual and entirely normal. There were no lights in the house and the doors were unlocked. All the parties entered the house through the rear door and looked into all the rooms, and Mr. James and Miss Lueck called Mrs. James a number of times. Someone suggested that she might have fainted on the grounds and her body might be concealed by the shrubbery. The parties opened the front door and James observed a note under the door which he picked up, stating that someone had been there on that day or the day before. Mr. James read the note aloud. It was written by Mrs. Ethel Smith, James' niece, and left in the crack of the door. Sunday, August 4th, she and her husband, and the father and mother of her husband, had called at about 5 o'clock, and finding no one home, she left the note. The doors were locked and the blinds were carefully drawn. James suggested that a search be made of the yard and he got a flashlight. Pemberton was familiar with the front yard, but not with the back yard. He went into the front yard and James went into the back yard. In his search about the grounds he followed a narrow walk which led through the shrubbery to the side of and skirted the fish pond. At this point he discovered Mrs. James' outstretched body. The lower limbs were resting across the narrow cement walk which was close to the water's edge and her head and upper part of her body extended into and was slightly submerged beneath the surface of the water, her face facing downward. He made an exclamation and went to the rear of the house to meet Mr. James. He told him to brace up, that he had a ‘shock’. He told him Mrs. James was dead. He attempted to prevent Mr. James from going to where the body lay but he was unable to do so. James knelt down beside the body and tried to lift her from the water but was unable to do so and Pemberton assisted him in pulling the body back so that the head was clear of the water. He finally got Mr. James up and he had Miss Lueck take him into the house and he left to notify the sheriff's office at Montrose. Mrs. James was described by him as wearing pajamas. Miss Lueck also said she had on pajames and bedroom slippers. The light wire fence which enclosed the rather shallow pond was crushed at the point where the body had lain. The pond was approximately twelve or fourteen feet in dimensions and the water was from ten or twelve to sixteen inches in depth, the bottom being covered with cement. Miss Lueck testified that James was moved to tears and kept repeating, ‘Oh, I am so sick; what will I do without her.’ He was apparently deeply grieved and was taken to a couch in the yard where he was apparently prostrate for some time. A physician who had been summoned to the home administered to Mr. James. He was afterwards taken to the place where Miss Lueck lived and given such care as his condition seemed to require. That his grief had all the appearance of being genuine and not simulated is testified to by Miss Lueck and Mr. Pemberton who were in close social relations with James and his wife, and by all who were in a position to have had any knowledge of the subject. The testimony is to the effect that James was kind and affectionate in his treatment of his wife and both seemed happy in their marital relations. The home was pleasantly appointed and the grounds are described as being exceptionally beautiful.

In going through the house in search of any message that Mrs. James may have left, or any evidence which might throw light on her death, Miss Lueck discovered in a dish or bowl on a table in the dining room, a sealed bule envelope addressed in pencil to Mrs. James' sister, Mrs. R. H. Stewart, Las Vegas, Nevada. She called Mr. James' attention to it and he requested her to open it. The letter was written in pencil on blue stationery, corresponding to the envelope, and was in the following words:

‘Dear Sis.

‘Just a line this morning to let you know I am pretty sick. My leg is all swollen, something bit me while wattering my flowers this morning. I cut my toe yesterday and having lots of bad luck, this is old blue Monday, but my daddy will be home early to nite and he takes good care of me.

‘Be sure and write me soon and Ill let you know how I get along. Sis.’

On the back of the envelope is written: ‘From Mrs. R. S. James, 522 W. 8th St. Los Angeles.’

The letter is concededly in the hand of Mrs. James but it is claimed that it is not written in the legible and steady hand which usually characterized her hand writing as shown by exemplars.

It is the contention of the prosecution that the letter was written under the compulsion and dictation of James or as Hope's testimony would indicate, at a time when she was under the influence of intoxicating liquors. Hope's testimony was that Mrs. James drank large quantities of whiskey during the last hours of her life. James testified that she never, at any time, drank any liquors and further, that she was continuously suffering from nausea and dizziness caused by pregnancy, and it was with difficulty that she could retain any kind of food or fluid on her stomach. She had consulted Dr. James De Witt George, an obstetrician and gynecologist of the city of Los Angeles twice as to her condition, first on July 16th at his office and again on July 30th, five days prior to her death, at her home. The physician testified as to her pregnancy and as to symptoms of nausea and sleeplessness. He prescribed for her.

In further refutation of the alcoholic indulgence told by the accomplice Hope, the autopsy physician, Dr. F. A. Wagner, who made a chemical test of the stomach and kidneys the day following death as to the presence of alcohol, reported that he found none. At the time he held the autopsy he reported death from drowning. He also reported acute cellulitis of the legs. Cellulitis is an inflammation of the cellular tissues. No suspicion existed in the mind of anyone that Mrs. James' death was caused by criminal means until several months thereafter. The body was exhumed nine months after burial and a re-examination of it was made after the Hope rettlesnake theory had been advanced by the investigator in the case. Dr. Wagner had given no thought to the rattlesnake theory until the subject was pressed upon him by one or more of the investigators. With this suggestion in mind he reconsidered his former report. He performed the autopsy on the day next following the day her body was found as heretofore related. He testified that he found a laceration on the under surface of the left great toe. The left leg was considerably swollen. The lungs contained a considerable amount of water. There was no disease of any of the vital organs. The uterus showed a normal pregnancy of proximately six weeks duration. Superficial bruises, showing black and blue spaces of varying extent were found on certain parts of the body.

A chemical analysis of the stomach, liver and kidneys did not react to, or show the presence of any poison. He defined ‘acute cellulitis' as a swollen or inflamed condition of the tissues. He said ‘in may be due to anything of a micro-organic nature’. The discoloration of the leg was quite marked to the knee. The swelling continued to the hip. The bruises or contusions upon the body were on the chest and the interior portion of the right arm and extended to the back of the arm. He noticed slight bruises or scratches on the forehead and face. Evidently the witness in describing the body and its condition was using, for purposes of illustration, a photograph taken after the body had been disinterred, and it is not clear in some instances as to whether he was testifying to the condition that existed at the time of the autopsy or as it existed after it had been exhumed nine months later. His first examination was cursory merely. That physical and organic changes of the body must have taken place during its long burial period would be an inevitable result. When the body was brought into the morgue after nine months' burial the skin had slipped from the left leg. The doctor stated that cellulitis (which is medically defined as inflammation of the cellular tissue) was the result of bacterial action. It was due to an infection of some kind, animal or vegetable. It could have been caused by the bite of a rattlesnake, venomous insects or spiders, or by the inoculation of vegetable bacteria. The notes taken by him at the autopsy, he said, were very brief. Asked whether he had reached any opinion as to what had caused the incision on the bottom side of the toe, his answer was, ‘Not a definite one, no, sir.’ He had never seen a puncture made by the fang of a rattlesnake, nor had he ever seen anyone who had been bitten by one. He described the puncture as resembling one made by a nail or any other ordinary pointed instrument. The laceration was about a quarter of an inch long and led away from what he thought was the point of entry. He was of the opinion ‘that one could come to the conclusion that it could have been made by the bite of a rattlesnake’. It was possible that it could have been made by a thorn. He said that he had definitely formed the opinion that there was a puncture but it is quite manifest that he paid but little if any attention to the laceration at the autopsy and made no special examination of it. He made no attempt to determine whether the cellulitis was caused by vegetable or animal bacteria. In giving, on direct examination, his conclusion as to whether the puncture or laceration was made by the fang of a rattlesnake or by some other means, he said: ‘From the description of the bite as shown in the literature [and the condition described by the witness] one could come to the conclusion that it could have been made by the bite of a rattlesnake or anything else that would have a similar instrument for making such a puncture or laceration.’ He was then asked: ‘Q. Did you reach such a conclusion? ‘A. I did.’ As to whether the cut on the toe was made by stepping on a nail, thorn, or was made by coming in contact with any other sharp instrument was not of itself a question of expert evidence. The doctor suggested that he was no better qualified to testify on that subject than a layman would be. On redirect, the doctor said the cellulitis was more like that caused by venom or poison than the growth and development of a toxin of bacteria. He further said there was evidence of a gangrenous condition. The doctor was not positive as to what caused the condition found on the leg. He could not say the condition he found had not been caused by the bite of a black-widow spider or other poisonous insect.

Dr. Gustave F. Boehme, called as a specialist on the habits of rattlesnakes and snake venom, and who had himself been bitten by a rattlesnake and had treated a patient who had been so bitten and had seen others who had been bitten, made an examination of the body of Mrs. James with Dr. Wagner May 5, 1936, nine months after burial. Superficial material which had accumulated on the limb was removed. The left leg was very much enlarged as compared with the other leg and it was markedly discolored, almost mahogany in color. There was some swelling on the lesion from the knee to the hip. Running across the great toe he observed an old laceration about a quarter of an inch in length. ‘So far as the wound itself was concerned,’ the witness continued, ‘it could have been caused by laceration; it could have been caused by snake bite; it could have been caused by some other method, but combining it with other findings in that, I did come to an opinion.’ ‘Q. What is that opinion? A. That opinion was that probably this woman's toe had been bitten by some venomous creature, probably a snake, and all the findings on the leg were compatible with such a finding.’ The specialist testified that the venom of a snake (no doubt the same law would apply to all other venomous insects and members of the reptile family) travels ‘by the lymphatics' and not so much by the blood vessels which causes progressive localized swelling. The venom acts on the blood vessels to produce large black and blue areas. From the physical findings corresponding to a snake bite on the woman's leg, the witness concluded it was a probability. (All emphasis added.)

The single laceration, instead of two (rattlesnakes have two fangs) and the position of the laceration on the bottom of the toe, the specialist said, could be accounted for ‘by the fang striking at an angle, perhaps.’ The witness testified that when the fangs of a rattlesnake enter those parts of the human anatomy where the blood vessels are large and numerous the venom is more rapidly absorbed and carried to the vital organs than it would be if injected into the toe. Swelling following the injection of poisonous reptile virus becomes perceptible from two to four hours thereafter. In cases where it proves fatal death usually ensues from sixteen to twenty-four hours unless the progress of the poison is arrested. Of course, much depends upon the amount of virus injected, the physical condition of the person, and the part of the body into which the virus is injected. Over the objection of the defendant, the witness, Dr. Boehme, testified that on May 5th, nine months after Mrs. James' death, Snake Joe, extracted the venom of two rattlesnakes (one of which it is claimed was in the box into which Mrs. James' foot was forced), and the witness gave in detail the process by which it was extracted from the fangs, and injected by him into the bodies of two guinea pigs. He described minutely the manner in which the guinea pigs died. The squeal of pain, twitchings, convulsions and final death struggles which followed the injection of the venom were dramatically told. The guinea pig lived twenty-nine minutes. The second, which had a lighter solution of venom injected into its body, showed similar symptoms. It died in one hour and twenty-nine minutes after injection, writhing and twitching in pain. The injection was made in the interior abdominal wall. An examination was made and the walls of the abdomen were found to have turned black and blue and the intestines were in sharp contraction, and were also black and bluish, or discolored. The stomach presented the same appearance. The lungs held a large amount of blood and the heart was contracted. The heart, lungs, kidneys and stomach of Mrs. James, were, according to the autopsy physician, normal and showed none of the signs found in the guinea pigs, as described by the doctor who performed the guinea pig autopsies. As between the bite of a black-widow spider, a tarantula and a rattlesnake, the witness said that the condition of Mrs. James indicated that it was caused by the bite of a rattlesnake. The doctor testified that where the fang of a rattlesnake enters the flesh there is an area of suppuration or festering about the wound. The history was obtained from Dr. Wagner and from what he saw, the wound did not indicate suppuration. He was then asked if the absence of suppuration did not indicate that the wound was caused by something else other than a rattlesnake bite and his answer was: ‘Well, it may have been some other,—produced by some other instrument that was not infected.’ Dr. Wagner when asked whether the condition he found was of the nature of bacteriological infection or of the venom type said: ‘It was more like that which is caused by a venom or poison rather than the growth of and development of a toxin of bacteria.’ He said he found nothing which would tend to contradict a story of infection by snake bite, but on the other hand, he did not say that he found a condition that would justify him in concluding that only the venom of a rattlesnake could have produced the condition which he described; nor was he willing to say that the condition be saw could not have been caused by numerous and common bacterial infections which are wholly separate and apart from venom poison. He did see evidence of a gangrenous condition. There was nothing so unusual as to the appearance of the body when the autopsy was made as to excite more than passing notice. No chemical test or microscopical examination was made at any time to determine the nature or cause of cellulitis. That testimony of the two expert witnesses called by the People to prove or demonstrate that the condition which they described had its origin in or was caused by rattlesnake venom or any one of the many other potential causes, is so vague and indefinite as to unmistakably disclose a state of grave doubt and uncertainty on the part of the witnesses as to whether the condition which they describe as cellulitis was the result of a snake bite, or was produced by any other of the many causes know to medical science. Their testimony as to this issue, even regarded as opinion evidence, is so weakened by qualifications, such as ‘it could have been’, or ‘might have been ’ caused by rattlesnake venom, and by indulging in possibilities and probabilities as to reduce its evidentiary value quite to the level of conjecture and speculation as to what did cause or may have caused, a condition which is neither unusual nor uncommon in the practice of medicine. Mrs. James was some six weeks advanced in pregnancy and there was evidence, given by the defendant, it is true, to the effect that she was in the habit of taking off her shoes during the warm August days and walking about the walks and yard, and she had mentioned the fact, according to James, that she had stepped on something which had cut her toe. This is in accord with the reference made in the letter addressed by her to her sister which the prosecution contends was written by Mrs. James at the dictation of James while she was intoxicated.

It is not disputed that the condition as described could have been caused by the entry of toxic or bacterial poison through a laceration or cut of the flesh however made. The truth or falsity of James' testimony was a matter for determination by the jury in the exercise of its discretion in subordination to the rules of evidence. Excluding his testimony entirely as to this issue, the question is, however, as to whether there is substantial expert evidence to support the contention that the cellulitis was caused by the bite of a rattlesnake. Giving full import and significance to the language contained in the record, it is apparent, as a matter of law, that it is too uncertain, indefinite and doubtful to establish the fact for which it is offered, unaided by corroborating evidence from other sources. The prosecution must therefore look to the testimony of Hope of the alleged confession of James for substantial corroboration.

In reviewing the story as related by Charles H. Hope, sometimes called ‘Chuck’ Hope, we will adopt his language and method of expression as nearly as it is feasible to do, resorting to quotation points only in such instances as it may appear necessary to express the exact meaning of the witness.

We have already spoken of his plea of guilty entered soon after the trial began and the judgment of life imprisonment imposed upon him at the conclusion of the James trial. Our attention will be directed to a statement and review of his testimony as it appears in the record before us with such pertinent comments and references to other evidence of circumstances or instances as may bear directly on the particular issue under discussion. The story as related by him follows: He had known defendant James for a period of about seven years prior to August 5, 1935. During that period he had visited James' barbershop at intervals of from one to two or three weeks either as a customer or in making passing calls when he was not employed. He had borrowed small sums of money from him at various times.

In June, 1935, at the barbershop, out of a clear sky, James asked him if he knew anything about rattlesnakes and Hope said, ‘No.’ James asked him if he could find out about them, and Hope said he would try. Hope said James' explanation of his inquiry was that ‘he had a friend who had a wife who had been annoying him quite a bit and he wanted to get some rattlesnakes, and he laughed about it’. James told him if he would get him some snakes he would give him $100. Hope testified he saw him again in a casual way at the barbershop during the later days of June, and James asked him if he had found out about rattlesnakes, and Hope said he thought he could buy some for him. Hope purchased three from R. H. Kirby, a keeper of a place of amusement and a dealer in reptiles. Hope took the rattlesnakes to his apartment, where he kept them for two days and then delivered them to James, at his home. Hope paid the snake dealer $5 for the snakes. James asked him where he got the snakes and Hope told him it didn't make any difference and left. James gave him $20. He saw James later at the barbershop. Hope was then getting ready to move to a different part of the city. James told him he could come out and stay at his home for four or five days; that he had some work he could do. He went to James' home and stayed there several days. Hope, on James' instructions, had a cabinet maker make two boxes in which the snakes were to be kept, and he was instructed to tell the cabinet maker, if he asked any questions, that they were to keep white mice in. Hope testified that he bargained for two white mice when he purchased the snakes. The boxes were 24 by 9 inches and had a glass sliding top. He paid $5 for the boxes. Hope delivered the boxes to James and he put two snakes in the box for delivery to the man who had a troublesome wife. James told him he wanted a hole cut in the side of the box large enough to permit the insertion of ‘two fists'. Hope said he did not see James again until he called at the barbershop about the middle of July. James told him the man was dissatisfied; he said the snakes were not fighters; that he and his family had been to Ocean Park and saw good snakes there. That afternoon James and Hope went to the Ocean Park snake pit and avoided the appearance of being acquainted.

At this point the witness seemed confused and his testimony was incoherent in some particulars. He said, ‘When we went to Ocean Park we submitted them and sold them for seventy cents a pound. James asked me if I was busy that afternoon and I told him I was not. So I went down to Ocean Park with him.’ They then went to the pit and waited for an hour. ‘I was asking him questions—I didn't hear a whole lot of it, but I did hear from the man that owned the pit say, ‘I will bet you $20 there isn't a poisonous snake in the pit.’ I went around on the other side as he [James] told me to do and I didn't want anybody to think we were together. * * * I heard Mr. James say to the man that owned the pit as he walked over to my seat and he pointed out one snake and said, ‘That's the one I want and left’.' His testimony that the owner of the pit made an offer to wager $20 as above set out was later changed to make it read that James made an offer to wager $20 there was not a poisonous snake in the pit at the time. Some confusion as to the Long Beach exchange of snakes brought forth the following questions and answers: ‘Q. And you gave the snake which you had purchased at Long Beach to the man at Ocean Park? A. Yes, sir. He wasn't there at that time. They had a doctor there. I waited for this man to show up and he didn't show up there. I said, ‘We are very hot,’ and I said, ‘Wait there while I dump this snake——’.' What he said to the doctor of undisclosed identity, was stricken out on motion. Hope said he waited until the snake man came and he, Hope, pointed out what he thought to be the snake that James had selected from the pit the day before. The man put it in a box and Hope delivered it to James' barbershop. James paid him $5 for the snake and went home and Hope went his way. When working, Hope occasionally stopped at the barbershop for service or a friendly visit. Hope saw James again after August 3 at his barbershop and James said the snake was ‘no good’. He wanted some fighters. Hope said he had heard that the gentleman at Ocean Park had snakes that were bought of Snake Joe of Pasadena. James said, ‘Go over and get some if you want real fighters, they fought chickens and dogs.’ Hope, who said he was furnished by James with explanations as to the purpose to which the snakes were to be put, further said that he was to tell Snake Joe, in order to impress him with the importance of obtaining a poisonous snake, that he, Hope, had lost his money in a poker game—to a person not named—and that he was going to win back what he had lost at poker by betting the man who had won his money that Snake Joe actually had in his snake pit poisonous reptiles.

Snake Joe was called by the prosecution and he said that according to his book Hope was at his place on August 3, and told him he had already bought some snakes from other places, but they were not ‘hot’ and he wanted a real ‘hot’ one and he was directed to him. Hope said that ‘a friend and he had a bet on, and he wanted to kill a dog and he said if it would kill a dog he would collect quite a bit of money out of the bet and make up on the bet again, and he wanted to get ‘hot’ snakes.' Hope bought two snakes on August 3, paying $3 for the two. On August 4 he returned the snakes and received $1.50 for the two. Hope told the snake man the Humane Society had stopped the fight. This last sentence was stricken out on suggestion by the court. The sentence stricken out gives rise to the same suggestions of hints which several times appear in the evidence as to whether snakes were on occasion pitted against dogs, or other animals or game cocks in wagering contests.

Hope told James that after making inquiries all over the country he had gotten two snakes from Pasadena. One was in a glass box and the other was in a small box that had a screen door on top. He was driving James' car. He put them in the automobile and took them to Los Angeles and telephoned to James that he had the snakes. James met him in front of his shop and told him to drive around the block. James finally came out and got into the car and drove out Vermont avenue to Slauson avenue. Hope said his wife was then at his apartment. James drove the car on all occasions when Hope accompanied him, except the first. James asked Hope where he was going and he said, home. Hope's car was at Beverly and Vermont avenues. En route he and James stopped at a drug store and James gave him a prescription and handed him $5 to have it filled and to buy ‘two inches of adhesive tape’. He asked the druggist what the prescription was for but the druggist refused to tell him. He took the adhesive tape and the filled prescription and gave them to James. In answer to the question as to what next happened, Hope, after starting an answer, called for a drink of water and the court took a recess. What the prescription contained, if the circumstance actually happened, is not disclosed. It may be suspected from several suggestive circumstances which will later be related, that it was to be used in an attempt to bring about an abortion. Hope later admitted that he had been connected with a drug company in some capacity. Upon reconvening Hope resumed his testimony. He said that after he had procured the prescription and they were on their way James told him ‘his wife had $5,000 worth of insurance and he was going to collect it’. James said no more on the subject so far as Hope could recollect than the above quoted words. Neither did James say anything, so far as the memory of the witness went, about Hope taking any part in collecting the insurance. At Beverly and Vermont avenues Hope got into his car and went to his wife's apartment and took her to dinner and later to a show. The witness was then asked when he next saw Mr. James and his answer was, ‘I went after my wife by 10 o'clock in the morning.’ He then drove with his wife to La Canada and instructed her to wait on the corner. He arrived at the James residence about 12:30 or 1 o'clock, and James came out. Hope said James had been drinking a little bit. He told him he had come for the snakes and James said he could not have them right then. He had a couple or three drinks with James in the garage. The snakes were in boxes in the garage and alongside of the boxes there were three or four dead chickens. He went back to where his wife had parked and told her he couldn't get the snakes then and she apparently drove off and the went back to the garage and was there ten minutes when James came in and bluntly said: ‘You are in this thing as deep as I am. You have bought these snakes all over the county. I have had you visit here at the house. Different people have seen you.’ He further said: ‘Now, bring that box in the house’. Hope walked ahead of James carrying the glass-top box with the snake in it. James passed Hope entering the house. He thus described the situation: ‘Mrs. James was lying on the breakfast table with a piece of adhesive tape over her eyes and over her mouth. He went ahead of me, raised her foot up so I could get by, and pointed to where I was to set the box, on the seat of the breakfast table. * * * In setting that down the top flew back. He put her foot in the box. The snake was in the box and was alive. After he closed the box I took it back to the garage.’ As he entered the room he noticed Mrs. James move on the table. She was in a night-gown, her legs were bare. It was the left leg that was placed in the box. Hope said the time required for the entire operation was not more than three minutes. He immediately returned to the garage and after remaining there 15 or 20 minutes James brought him a water glass full of whiskey. He had some drinks with James. James asked him why he was so nervous and said: ‘She is all right. Drink this, it will steady your nerve.’ Hope replied that he wanted the key to his car; he wanted to get away. James brought him the key to his car. Hope put the dead chickens and the box with the snakes and a gunny sack in the car. Hope drove to his wife's apartment in Los Angeles but she was visiting friends. He drove to where she was and she and her friends got in the car (apparently Hope's car), and he followed her driving James' car to their apartment and Mrs. Hope then got in the James' car. ‘Q. And then where did you three go? A. We drove toward Pasadena, stopped on the way, and she had dinner, drank some beer. We went over to this place (Snake Joe's) where I had purchased the snakes and returned the two snakes to this man.’ After leaving Snake Joe's the witness said he did not know where they did go. They started for the beach. On La Cienega, within a mile or two of Venice boulevard, he threw out one of the boxes containing a snake. The second box was thrown out along the roadway on Venice boulevard. He and his wife and the third party, if there was another party, called on friends and Hope went alone to James' residence, reaching there about 1:30 a. m. He went to return him his car. He put the car in the garage and James came out. James had been drinking. He wanted to know of Hope what he had done with the snakes and where he had been. Hope got in the car and the two sat down. James put the bottle of whiskey on the seat and the two had a couple of drinks. He (James) cooled down a bit and said: ‘Those snakes are no good either. My wife is not even sick.’ Hope said, ‘Why didn't you take her to the hospital?’ James said: ‘No, they will strike us both higher than a kite.’ Why Hope should have suggested taking Mrs. James to a hospital in frustration of the plot to kill her passes human understanding.

It appears from the foregoing colloquium, so far as it can be rationalized, that Mrs. James was in dire need of medical assistance for a condition brought about by an attempt to commit an abortion, and obviously not for a condition brought about by an attempt to take her life. The necessity for urgent medical aid and James' reply to Hope as to what would happen to them if the cause of Mrs. James' condition was revealed to medical skill, gives more than mere color, considered with other evidence which crops out a number of times in the case, to the theory that Mrs. James submitted to an attempt on the part of Hope and James to perform an unlawful operation in which death ensued and in their dilemma to avoid responsibility they carried her to the pond to give the appearance of death caused by drowning. That the autopsy physician had no throught of an attempted abortion and made no examination to determine abortion as a cause of death and made only a casual observation of the uterus from the abdominal incision, is patent from his direct examination. Some two or three weeks later and after considerable evidence had been introduced tending to support the abortion theory the doctor was recalled in rebuttal and testified that he examined the uterus including the vaginal region. Asked if he found any evidence of an abortion having been committed he said he did not. He observed a fetus indicating a pregnancy of about six weeks. Asked on cross-examination if the presence of the fetus was not absolutely conclusive that an abortion had been committed his answer was ‘Yes, sir’. There is obviously some error in the transcript or misunderstanding on the part of the witness as to the question. The presence of the fetus would only indicate that it had not been expelled or removed from the uterus but that fact alone would not prove that an abortion had or had not been committed or attempted. An attempt to commit an abortion frequently results in death. No examination was made as to the condition of the fetus inasmuch as the theory of drowing was accepted as final. There is no evidence to show that the interior of the uterus was examined. In fact there is no evidence to show that more than a casual or general observation was made. The doctor testified that an abortion may be committed by administering drugs, or by violent exercise, which would include manipulation of the body, and if an operation was attempted in any other way than by the use of instruments there would be no way of ascertaining that an attempt had been made.

After James had predicted what would happen if they had taken Mrs. James to a hospital, Hope said James ‘jumped up and said, ‘I am going to drown her’.' James then went in the house and Hope said he stayed in the car and at about 4 o'clock, after some two or three hours had passed, James come to the car and said, ‘That is that’. He presently said to Hope, ‘Stay here a little bit and I will take you into town’. At about 6:30 or 7 o'clock a. m. James came out of the house to the garage and said, ‘She has been dead since 4 o'clock. The house is all cleaned up and you will have to go in and help me carry it out’. Hope entered the house and saw Mrs. James' dead body on the floor of the hallway. Her head pointed toward the front door and her feet toward the bathroom. James took hold of the upper part of the body and Hope took hold of the lower portion and James went through the door that led to the sidewalk. He said to Hope, ‘You will have to put her in the fish pond’, and Hope said, ‘I won't do it.’ He went back to the car and after four or five minutes James returned to the garage and handed him a bucket full of soiled clothes among which were a couple of Turkish towels. He saw a couple of pieces of rope, a red sweater and some tape. Three blankets were also put in the rear of the car. They started for Los Angeles. James said to him not to get excited or nervous, that he would take care of him when he got the money. He and James drove to Virgil and Bryne streets where James got out. He handed Hope $30 and said that he would have to dispose of the stuff and get out of town. Hope put the bucket and blankets in his car and went to get his wife and found her eating breakfast. He took her to work and came back and put the stuff in the sack with the dead chickens and put it in the car. He then went for a drive, but didn't know where he was going. He left the blankets in his house and they were sent to the laundry with other soiled linen. All other articles he disposed of in an incinerator back of a drug store on South Vermont. He said he could not remember all the materials that were burned but he named a red sweater, and a couple of Turkish towels. There were other things but he did not know what they were. Hope was shown a piece of ordinary cotton clothesline rope and said it resembled pieces of rope he burned in the incinerator. One of the investigators in searching an old truck that belonged to James and which had been stored or left in the garage or outhouse where his niece resided for quite a long while, testified that he found in the trunk cotton rope of the same type. Hope, upon being asked a second time how Mrs. James was dressed when her foot was placed into the box containing the snake, materially contradicted his former testimony, by saying that she was dressed in pajamas and house shoes. On cross-examination his answer to the question ‘How much of the foot was placed in the box’, was ‘I don't know—the foot was immediately pulled out very fast’. He thought James' hand clasped the calf of her leg. He withdrew the leg practically instantly. The foot was slightly above the snake's head.

Hope said he asked James how he was able to get Mrs. James on the table in the position she was and he said he told her that a doctor was coming out to perform an operation on her for pregnancy. This and other evidence strongly indicates that Mrs. James was seriously contemplating relieving her pregnancy by artificial means. He told Snake Joe that the snakes were to fight chickens and dogs. That, he said, was what James instructed him to say.

After Monday, August 5th, this being the day Mrs. James was found lying in the pond, Hope says he did not see James for several weeks thereafter. He first saw him in the barbershop quite a while after August 5th. He was asked if he had a conversation with him. His answer was ‘Oh, just the general topics of the day at that time. Yes; nothing was said about this.’

A month after Mrs. James' death he saw James again at the barbershop and they conversed on the subject of the killing. He told Hope, so he testified, that he, James, would give him $1,000, ‘if we testified that we saw Mr. and Mrs. James married’. By we presumably he referred to Hope's wife. Hope said his answer was, ‘No, I wouldn't do it.’ He saw James at a later period at his barbershop, the time he was unable to state, but it was some time after August 5th, as he dropped in the shop to get his hair cut. As James was finishing cutting his hair he slipped $100 in his hand which was covered by the barber's apron. The shop was full of people. He said, ‘Don't remember anything about me, and I advise you to get out of town.’ Asked if he said anything else the witness continued, ‘He said, ‘Don't try to give it [the money] back to me; somebody will see you, and you will get us all in bad’.'

A blue blanket, a pink blanket and a tan blanket which the witness testified were given to him by James and which he took together with solied clothing from the James home on August 5th, were identified by Hope. R. H. Kirby, Mike Allman and Joe Houtenbrink, commonly known as Snake Joe, all dealers in and exhibitors of snakes and reptiles were called upon singly to stand and were identified by Hope. On cross-examination the witness admitted that he had read much of the testimony he had given before the grand jury and he had read his wife's testimony.

Continuing his testimony he said he kept the three Long Beach snakes in his apartment for two days and when James gave him the money for them he delivered them to his La Canada home. There appears to be some discrepancy as to the length of time he had them at his apartment. Evidently he had them for several days on his own statements. After delivering the three snakes he did not see James until two weeks thereafter, at the barbershop. The witness then said that he delivered the snakes at James' garage ‘around the 5th or 6th of July’. He said he was getting ready to move and he had to get the snakes out of his apartments. He was out of work and he moved to the James home to do some work about the place. Hope rather decried the suggestion that he was doing work of any great consequence or that he was on the place at the hours Mrs. James was there, during the day time. He admitted that he fixed a chicken coop, tightened a little wire and ‘raked around a clothesline’. The other days he was there he said he came into town with James or with James and James' sister. He stayed at the home four or five days and Mrs. James was there two days of that period. She left to attend a dental convention in session at Long Beach and Hope left the day following her departure. He was at home on the day the landlord was removing hardwood to another place. Mrs. James was at Long Beach on that day. James' sister, Mrs. Eva Murphy, chief evening operator of the telephone company at Morris, Alabama, was visiting James and his wife during the time Hope was temporarily stopping at the James home. Lois Wright, James' niece was at the home on occasions. He saw and talked with James' sister several times while he was stopping at the James home. The landlord was also there moving flooring from the premises. Hope indicated that he took only his breakfasts at the James home but lodged there nightly, getting in late. On cross-examination he testified for the first time that James paid him $100 the night he delivered to him the Ocean Park snake. This amount is in addition to the $100 which he says James slipped into his hand under the barber's apron or cover while shaving him. On cross-examination Hope testified that he saw the snake strike the deceased in the lower region of the foot. The snake was coiled. Its head traveled but three or four inches. He heard no rattle. Mrs. James was dressed in a nightgown. Hope denied that he ever pretended to have any knowledge of medicine but said that James told Mrs. Murphy, James' sister, in his presence, that Hope did possess medical skill and he, Hope, made no denial of the representation. Continuing his answer he said: ‘And neither did I deny the name that he introduced me by when his niece was right there and knew my right name.’ This reference was to an occasion when he was introduced as ‘doctor’.

Hope admitted that he had talked many times with seven or eight of the investigators, naming officers J. C. Southard and Scott Littleton, and others who were preparing the case and he had been taken by them to places associated with the offense charged and had eaten meals outside the county jail, and had also talked with the district attorney and the deputies in charge of the prosecution but denied that he had discussed what he proposed to testify to with anyone.

When Hope went to Kirby's to buy the first lot of snakes he told Kirby that the snakes were to be used for experimental and scientific purposes. As an aid to Hope in his scientific research Kirby gave him a small jar containing crystalized or dried, rattlesnake venom. Crystalized or dried venom is as poisonous as the fresh venom. Hope took the jar of crystals and put it in his suitcase and had forgotten about it, but when he moved to James' place it came to his mind in some way and he offered it to James and James said he ‘didn't want it’, and rejected it. Asked what he did with it his reply was, ‘I don't remember what became of it. I may still have it; I don't know’. At another time in his examination he said he gave it to James. This testimony further intensified the mystery in which the whole theme of the plot to produce death by resorting to the means of rattlesnake poisoning was enveloped. Hope said that the last time he saw Mrs. James alive was in the afternoon next preceding her death. He did not then speak to her and not a word was spoken in the house by anyone. He had been informed that she was pregnant. Not a word further in explanation of the circumstances in which he had seen her or the condition she appeared to be in or the particular place where he saw her on the afternoon preceding her death, was related by the witness. He testified that he did not know whether venom in crystalized form was or was not poisonous.

It was quite impossible to have Hope give a definite answer as to what James' condition as to sobriety was on the early morning of August 5 when he arrived or during the time he was at the house. He first said he concluded he had been drinking from the fact that he smelled the odor of liquor on his breath. He also said he and James took two or three drinks, not large ones, but he did not see James take any more.

From his statements as to what occurred at the James' home from 1 a. m. Monday, August 5, to 6:30 or 7 a. m. of that day, it may be inferred from some of the things he related that James appeared to have been affected by intoxicating liquor, and on the other hand he seems to intimate that he was not so affected. His testimony in this as well as in other respects is equivocal, as shown by the following excerpt:

‘Q. Well when you saw him at 1:30 [this is when he first arrived at the James home on the day he helped carry her dead body to the pond] he appeared to be intoxicated to you, didn't he? A. I stated I didn't know whether he was mad [because of Hope's delay in arriving] or intoxicated.

‘Q. And after he took the drinks with you, between 1:30 and 2 o'clock [a. m.] he appeared to be intoxicated, and not mad, at you, didn't he? A. Well, I wouldn't state that he was not intoxicated, or mad either. He didn't seem to be so mad then.

‘Q. But he did seem to be more intoxicated, didn't he? A. Slightly, yes.

‘Q. Did he appear to have been drinking when you saw him in the morning about 7 o'clock? [Objection to question overruled.] A. Well, I was so scared in the morning I don't know whether he was drunk, or not.’

He said James seemed extremely nervous, but his speech ‘never was incoherent’. Prior to this he said his speech was ‘very much shot’. He didn't stagger while he was assisting him in carrying the body to the pond. James shortly thereafter drove him in the automobile to Los Angeles. The witness did not see James take a drink from the hour of 2 o'clock during the rest of the morning. They left at 7 o'clock. Hope says he was alone in James' automobile in the garage for some five hours or more, and gives no reasonable explanation for his long stay. He slept a part of the time surrounded by the horror of the scene from which he had both the means and opportunity of withdrawing.

Hope had done no work during the month of July except the few days he was engaged at the James' home. While doing this work he saw quite a few black widow spiders in the garage and in the hen-house and wash-house. (Black widow spiders as a secondary element in the case will later appear.) He said that during all the times that he had known James nothing had been said about killing his wife until the rattlesnake proposition was suggested by James a short time before her death. His sworn words are that he had no knowledge as to how Mrs. James met her death except from what James told him. In short, he plead guilty to a charge of first degree murder which carried with if the possibility of the imposition of the death penalty, a crime which he did not commit, or assist in committing. No reasonable contention can be made on the evidence in the case that Mrs. James died from being bitten by a rattlesnake. Hope testified on the trial of the case that he took no part in drowning her, and did not know except from James' ex parte statement that she had been drowned.

The foregoing summary substantially contains all of the testimony given by Hope, who occupies the irreconcilable inconsistent position, in which he has placed himself, firstly, of being at one and the same time an accomplice to the murder of Mrs. James and secondly, not guilty of the crime. Drowning is the only way death could have been criminally accomplished if his testimony is to be taken as sufficiently convincing to establish the fact for which it was offered. It is not seriously contended that the deceased died from rattlesnake venom, and the abortion theory is most vigorously combatted by the people. Hope's testimony is, in several instances, confusing as to the sequence and order in which certain acts were performed, notably as to whether certain acts were done on Sunday, August 4th, or Monday, August 5th, and lacks, in some instances, definiteness as to time.

Mrs. Edna Hope, wife of Hope, followed him as a witness. She testified that Hope called for her at the place she was working at 1:30 or 2 o'clock, August 3, 1935. Neither the place nor the nature of her employment is stated. He was driving James' car. They stopped at a lunch place and had lunch and resuming their journey, Hope finally stopped in front of a snake farm. Mrs. Hope stayed in the car. Hope took a box and went to the side of a barn. He and Snake Joe finally came to the car carrying a box which Hope put in the car. Hope then drove to Los Angeles and let her out. He telephoned, inferentially to James, and left. She saw him again at 7 o'clock or 7:30. He was, at this time, driving the Hope car. They had dinner and went to a show. She saw Hope the following morning at 9:30 or 10 o'clock, and they had breakfast together. They drove to La Canada in their car and parked the car a block from the James home. He told her to wait as he would be back in half an hour. He came back to the car in fifteen or twenty minutes. They talked a few minutes and she drove to Los Angeles. She saw him again about 2 o'clock. He drove up to where she was visiting friends, in James' car, and honked and she came out. She followed him several blocks to the place where they lived and she then got into the James car and they drove to Pasadena where they had been the day before. She noticed some boxes in the back of the car. There was a bad odor about the car. Hope took a sack out of the James car and put it in the Hope car. She then parked her car and they drove to Pasadena and Hope got out at Snake Joe's and took a box inside and was there several minutes. He and Snake Joe came out and went to the corner and she turned and went down to the boulevard, honking the horn. Hope came out and they drove away. At La Cienega boulevard Hope threw out a box which landed in the weeds. No explanation or reason is given as to why he should throw two of his snakes into the highway. He had theretofore resold or exchanged other snakes to the dealers. At Venice, Hope threw out another box on Venice avenue, which had a glass top. They drove back to Los Angeles and had something to eat. Hope had an engagement to play cards. She said she went ‘over there with him’, not designating the place. He took her home and left her. This was Sunday, August 4th. She did not see him again until about 8 o'clock the following morning as she was getting breakfast. She described him as appearing ‘white and jittery, and had been drinking’. Hope took her to her work and about noon he came after her and took her to their apartment. She saw a blanket wrapped around a bundle in the middle of the floor. There was also another blanket. She sent one of the blankets to the laundry with a bundle of their laundry. When she got back to the office Hope got out of the car and said he ‘had things to burn’. She saw him place a bundle in the incinerator back of the ‘place’. It appeared to be a gunny sack. She identified three blankets, including the laundered blanket which Hope had brought to the apartment. She told the story as above set forth to the district attorney's office before Hope was indicted. She wanted to help him all she could.

The above is a full resume of Edna Hope's testimony made as definite as to circumstances as it is possible to do. There is nothing in it to show that her curiosity was aroused as to Hope's mysterious trips to Snake Joe's pit, or to the James home, or as to what was contained in the boxes or sack which he transferred from one car to the other, or as to the throwing out of the two boxes onto the highways, one of which had a glass top, or as to what caused the bad odor which she detected, or as to what the articles were which Hope burned in the incinerator. What significance the Turkish towels, blankets and other destroyed articles may have borne to the theory of death by drowning, or even to the rattlesnake theory is certainly not perceptible. It is readily perceptible that the burned articles would have been more likely to have afforded incriminating evidence of death caused by an attempted abortion, if death so resulted, than they possibly could have served as proof of death by drowning. Hope himself said the bed sheet was bloody, attributing it to the slight cut on the toe.

Hope testified that Mrs. James was on her back with nothing on but a nightgown, raised above her knees, and her knees were projected slightly beyond the edge of the table. He was unable to definitely describe the method by which she was tied down other than to say the rope passed over her shoulders or chest. Her lower extremity was not fastened in any way to the table. Pieces of adhesive tape were stuck or pasted over her eyes and her mouth. It is not understandable why a person preparing another for drowning would lash his intended victim to a table. But the theory of the prosecution is that he was preparing her to be bitten on the foot or ankle by a rattlesnake. Hope said her foot was thrust into the box very swiftly and did not go deeply into the box. In fact he testified that James held her limb not far from the ankle or calf of the leg as the limb momentarily entered the box. There is no accounting for the gown which Mrs. James wore while she was on the table or as to whether it bore any evidence of an illegal operation. Hope testified to intensive cleaning up which he said James did following the rattlesnake episode and the sudden change of plan from death by rattlesnake venom to death by drowning. Why there should have been any occasion for extensive ‘cleaning up’ or for the laundering of articles of household or personal use and the burning of others has not been explained, and there is no apparent rational theory upon which these activities can be reconciled with either of the two theories advanced by the state. He testified further that the body was dry and there was no water on the floor, and the articles which were carried away were also dry when he entered the room. The foregoing is substantially all of the testimony that may be said to bear directly on the corpus delicti, except the testimony of the defendant, the only other possible witness to the act, which will later receive attention. The balance of the evidence is of an indirect character and consists of various circumstances, to-wit: the alleged confession, alleged statements made by the defendant and certain acts which the prosecution claim tend to establish the crime and connect the defendant with it, including the issue of motive.

It may here be said that it is not to be taken as any inclination on the part of the author of this dissent to vindicate or minimize any of the acts or conduct of the defendant which reveal moral depravity or perverse tendencies by anything said in the analysis of the evidence, but it is our purpose and our bounden duty, in all cases, under the mandate of the law, to dispassionately and carefully examine the evidence presented on appeal, as to its sufficiency and consistency, and give effect to the cardinal rules of criminal procedure which are the palladium on the preservation of which depend those guarantees of protection to life and liberty which the state vouchsafes to every person charged with a criminal offense without regard to the heinousness of the offense charged or the station of the person against whom the law's severest penalty may be invoked.

It may further be stated as an axiom of law that a conviction may not be had on the weakness of the accused's defense but it must rest solely on the strength of the case made against him. Mere conjecture, or suspicions, however strong, are not sufficient to warrant a verdict of guilty. Nor can the doctrine of chances, which is to say, that the chances are greater that the accused is guilty than are the chances that he is innocent, be permitted to usurp the office of substantial proof which must satisfy and convince the understanding to a moral certainty. If the evidence convinces the minds of the jurors that the person on trial is criminally responsible for a homicide, and a doubt exists as to the degree of punishment which should be imposed, their verdict must be in the lesser degree.

While it is not a circumstance, strictly speaking, which can affect the legal aspect of the case, it is nevertheless noteworthy that the jury was nine hours in deliberation—from 10:56 a.m. until 8:10 p.m.—before the verdict imposing the death penalty was consented to.

The defense base their arguments for a reversal on a number of grounds, the major ones being the inherent improbability and unreasonableness of Hope's absurd story, which, they claim, was fabricated by Hope under the tutelage of a large number of over-wrought investigators in charge of the prosecution. The defense's contention directed at Hope's testimony, is that before the testimony of a witness may be accepted as sufficient to sustain a judgment it must accord in the main at least with the normal conduct of persons responsible to society for those acts which are prompted by avarice, revenge, passions, and emotions which influence the average normal persons in doing deeds, good or bad. In those cases where the acts mark such a wide departure from the natural as to partake of the nature of the weird, extremely gruesome, and inexplicably uncanny, and to stifle the application of the common rules of reason or logic, proof of the specific acts charged should be established by very substantial and convincing proof. The claim is made that out of the multitude of detached erotic and sordid acts put in evidence against the defendant, many of them must fail because they were not established by the convincing force which the law and reason require in such cases and that many of the misdeeds charged were not relevant or material to the crime alleged in the indictment and obviously the only effect which such acts could have had was to turn the minds of the jury against the defendant so thoroughly that his defense and all that was offered in his behalf would be discredited by the jury and the presumptions of innocence and the doctrine of moral certainty would be swept aside by a flood of prejudice-begetting accusations against which the defendant, under the law, was entitled to be protected. In this connection, it may be stated, that three incest offenses charged against the defendant as having been committed with one Lois Wright were investigated and carried along with the murder charge, which crime was alleged to have been committed some eight months prior to the investigation of the incest charges. The investigations were so connected that the officers in testifying as to the arrest of the defendant and alleged conversations had with him bearing on the murder charge, would and did bring to the jury's attention the fact that the defendant was also charged with, if not then convicted, of the crime of incest. The incest charges were wholly separate from the murder charge and they should not have been injected into the murder case, especially by an officer of long experience, when testifying in the case. He too readily volunteered improper statements, and intentionally made reference to matters which were not responsive to any question propounded. It appears that the dictaphone installed in a house rented by the officers and adjoining the James residence and under the personal supervision of Officer Earl E. Kynette was the original plan adopted for the discovery of evidence to be used in the prosecution of the incest charges.

Among the several objections most strongly urged by the defense is one directed to the exhibition of live rattlesnakes. Others of like character are made to the exhibition of a dead snake enclosed in a glass jar, with open mouth and fangs projected from the upper jaw. Rattlesnake venom in crystal form, and fangs in the primary, secondary and third growths, and the manner in which they are attached to the upper jaw, and the method in which the virus is expelled through the fangs were exhibited and explained to the jury in much detail. The ways and habits, kinds and species, longevity in captivity, the manner in which they obtain their food, how and why they coil and strike, and the physical structure of reptiles of the crotalidae family and the excruciating pain the victim suffers as the subtle poison stealthily creeps through the circulatory system were meticulously discussed by naturalists, zoologists, entomologists and herpetologists, who had earned their degrees at venerable American and European universities. Three or four lay experts who had gained their knowledge of reptile habits from practical experience on the desert and in habitats where snakes are most abundant, added hundreds of pages to the record which could not have assisted the jury in the remotest degree in their consideration of the case.

Besides the snakes and their products which were put in evidence, photographs of the deceased, after the body had been exhumed, were also resorted to, and a human skull was used to illustrate the manner in which the injuries may have been inflicted upon the head of Winona James in the Pike's Peak automobile wreck.

There is no doubt that photographs and exhibits are admissible for purposes of identification and by way of illustration when material and germane to the issues involved but when they are not necessary or, from the nature of the subject under investigation, could not enlighten the jury as to the main facts in issue and are of such character as would tend to harrow the feelings or excite passion or prejudice in the minds of the triers of fact, they should not be received in evidence or exhibited to the jury.

The defense, naturally, protested against bringing into the courtroom a glass-top box containing two live rattlesnakes, and its exhibition to the men and women who composed the jury. Joe Houtenbrink, commonly referred to as Snake Joe, who operated a snake farm in West Valley boulevard, East Pasadena, was on the stand when the snakes were brought into the courtroom. The witness had testified that he first met Hope on August 3, 1935, at his place, No. 42 Cypress street, Pasadena. He sold him two snakes belonging to the diamond-back or Crotalidae Atrox family, for $3.00. He repeated Hope's story of a bet he had made with a man who wanted to kill a dog, and if the snake would kill a dog he could win and therefore he wanted real hot snakes. He had a box, one side of which was glass, into which the snakes were placed. On the next day, August 4th, he repurchased the snakes from Hope. Hope said the Humane Society stopped him from having the fight. Snake Joe gave him $1.50 for the two snakes. The witness was asked if he still had the same snakes in his possession and upon answering that he had, two men entered the crowded courtroom carrying a box containing two snakes (but one snake was in the box into which Hope said Mrs. James' foot was forced), which they deposited beside the bench. The following proceedings ensued: Mr. Clark, counsel for defendant, objected to the witness leaving the stand to inspect the box and making exhibition of any snakes to the jury. Counsel, in open court, requested the court by order or appropriate means to make or cause to be made a record ‘that two men have just entered the courtroom carrying a box covered with a burlap cloth, and upon their coming down the aisle, the people who were in the courtroom, filling the courtroom, manifested excitement; that several of them arose from their seats; that the attention of spectators and the jury was directed away from the testimony of the witness; that at the time I am speaking there is upon the faces of the audience an appearance of anxiety and consternation not heretofore exhibited during this trial.’ (Uncontroverted affidavits aver that the snakes were sounding their rattles as they were carried down the aisle.) The court thereupon made the following statement:

‘The court has no knowledge that there was any such manifestation on the part of the audience. The court is unable to state whether the attention of any person was diverted or not, nor is there anything to indicate the apprehension that your statement implies; at least it has not been seen by me.

‘Mr. Clark: In other words your Honor has no knowledge that the statement I have just made is correct.

‘The Court: No. That may be your frank, honest opinion as to the facts, however, the Court has not seen any such situation.

‘Mr. Clark: I will try to find appropriate means of putting those facts in evidence. I think they are facts and that my statement is appropriately made at this time.

‘The Court: So far as the facts of the two men having taken the box in from the courtroom door and passed up the aisle between two groups of spectators, through the gate into the inner part of the courtroom and deposited the box by the side of the bench, the record may show that did occur.’

Affidavits made by the attorneys for the defendant and which were not specifically traversed, were presented on motion for a new trial, containing averments describing the consternation, commotion and waves of terror which spread throughout the courtroom as the snakes were carried down the aisle, sounding their rattles, in the glassfaced box.

The snakes were received in evidence and exhibited to the jury against the objections of the defendant. Motions to strike on numerous statutory grounds were denied.

The witness said he never saw James before he saw him in court. In describing Hope's condition at the time he returned the snakes he said, ‘He [Hope] had had a couple of drinks, is the way it looks, but he wasn't intoxicated. We had some drinks ourselves, I remember; went out and had a glass of beer together.’

Roland H. Kirby, the Long Beach showman and exhibitor of reptiles of whom Hope purchased his first lot of snakes and venom, in qualifying as an expert venom, in qualitying as an expert testified that he had had eleven years in research and experimentation work with reptiles and had lectured to classes in zoology and had attended experiments at different institutes in regard to the effects of snake poison. His knowledge was gained by reading and from practical experience. He said he had been bitten by a rattlesnake and spoke of the great suffering he endured and described the effect the venom had on him personally. In his experience three out of ten persons who were bitten, died. He exhibited several rattlesnake fangs by way of illustrating his testimony. Counsel for the prosecution cautioned that the fangs were potentially dangerous even when detached from the head, and advice was given that they be carefully handled. He recalled Hope buying the three snakes. Hope at no time gave any reason why he bought three snakes instead of one. So far as his testimony goes only one was actually used. At no time did James tell him to get any definite number and he seemed to have used his own judgment in procuring snakes for whatever purpose they were to be used.

Mike Allman is the proprietor of a ‘reptile exhibit’ situated at Ocean Park. The reptiles are confined in a pit 30 by 40 feet in which they were from 150 to 200 reptiles on the day James and Hope entered. He performs in the pit with the snakes and the audience views the snakes from the rim. An iron railing extends about the rim of the pit as a protection to the visitors. His memory was somewhat hazy as to when or how they came in but it seemed to him that they had had a couple of drinks and they got noisy, he said, ‘as people frequently do in this place,’ and he became annoyed. They insisted that he did not have a poisonous snake in his pit; that he had removed their fangs. He did not pay much attention to them as he was talking to other people. Finally James made an offer to bet him he didn't have a poisonous snake. He got sore and was going to bet him but he bluffed out. He didn't notice them any more and didn't see them when they left. His observation of them was certainly very fleeting. The next day Hope came back with a glass covered box in which he had a half grown white rabbit and he said James had bet him $50 that he did not have a poisonous snake on the place; that he had lost to James $100 playing poker and he wanted Allman to guarantee that the snake was poisonous and he would have a chance to win back one-half of what he had lost. Hope wanted him to ‘put the rabbit in the box and kill it, to show that it was poisonous.’ Allman refused to do this and said he could take the rabbit any place he wished and test it out. Hope gave him $3 for the snake. The witness admitted that he had attended the trial and had heard Hope's testimony. The next time after the purchase that he saw James and Hope was in May, 1936, nine months after said purchase. James and Hope were taken by a number of the investigators for the district attorney's office who had been active in the case and other officers to Allman's place for identification. Allman had not seen James, if ever before, since July, 1935. He had no previous acquaintance with him. Allman admitted on cross-examination that the following questions were asked him, and the following answers were given by him when he appeared before the Grand Jury during the investigation of the murder charge. His answers were as follows:

‘Q. And did they have any conversation with you? [After entry into the exhibit.] A. Yes, sir; I was playing with the rattlesnakes, as I generally will do, making them strike, and working around pretty close to them, and they got an idea the way a lot of people figure those snakes are harmless, but we don't remove any fangs * * * Well, one guy, Mr. Hope—he was the one that was a little bit—wanted to argue about it. He says, ‘Those snakes are not poisonous.’ I said, ‘Certainly they are poisonous.’ ‘Well,’ he says, ‘do you want to bet $20.00 on it.’ Something like that. I said ‘sure, I will cover the bet.’ Didn't you so testify before the Grand Jury, Mr. Allman? A. Yes, I did.'

The witness acknowledged a later conversation which took place between him and James at Allman's in the presence of a number of officers at which time the following questions were asked and the following answers were given by him:

‘Q. And it is a fact, is it not, that you said to these parties [officers] that you could identify Mr. Hope, but you wasn't sure of James? A. Yes, sir.

‘Q. You say you didn't say that? A. I did.’

On re-direct, the witness said he pointed out James and Hope as the men who had been at the snake-pit. On re-cross, he said that when he identified them the officers had Hope and James in custody and they were separate and apart from the other people. He didn't then know James was in custody. The witness veered quite a bit through several questions and finally said that when he saw the group together he recognized James as a person who had been in his place but he did not know his name. He said he remembered James on account of making the argument as to nonpoisonous snakes. He had previously testified before the Grand Jury, and his memory was fresher then as to the events than at the trial, that he remembered Hope because of the poisonous snake argument he made. As a matter of evidence it was Hope who at the times he purchased snakes of the two other vendors stressed the fact that he wanted to be certain that his purchases were of the poisonous type and in one case used substantially the same language and methods as were used in effecting the Allman purchase. Asked if James did not request him to be careful as to his identification as it meant much to him, his answer was he did not recollect but he ‘guessed’ James did request him to be sure of his identification. Asked if he did not say, ‘I think I saw you before, but I am not sure,’ he answered, ‘No, I don't think I said that.’

‘Q. Well, you did say something about thinking you had seen him before didn't you? A. No, I didn't say that either.

‘Q. And yet you haven't the slightest recollection of what you did say? A. Not exactly, no.’

Asked how James was dressed he said he thought he had on a dark suit but he wasn't sure. He didn't pay attention to clothes, he watched the face. Asked what the color of James' eyes were he said he paid no attention to his eyes. ‘You don't when you are in the pit.’ He was not able to describe the man's features or dress. He did not recollect whether he wore a hat, a cap, or neither.

Mrs. Ethel Smith, niece of defendant, testified that she and her husband, Raymond C. Smith, and her husband's father and mother, called at the James home Sunday afternoon at 5 o'clock, August 4th and found the back door locked. The shades were drawn and she could not see into the inner portion of the house. She did not knock or ring the door bell. She wrote the note found in the crack of the front door Monday evening by the Pembertons and James. The party remained fifteen or twenty minutes. Her husband and his father and mother walked about the grounds and picked some oranges and plums. She saw James on the following Wednesday at Viola Lueck's apartment. He said he found her note Monday and asked her if she was there Monday. She told him she was there Sunday. He asked her if she was on her vacation and where she went, and she said she drove up to Mount Wilson, and he said, he did, too, with Mary. He asked her if the officers were there to take names and she said no. James in explanation of the above conversation said that he did not recollect making the statement that he went up Mount Wilson on Sunday, August 4th, but said that he was up the previous Sunday and the officials searched the car for firearms, and that incident was doubtless in her mind. If Hope's testimony is true, Mrs. James was alive on the Sunday the Smith party called at the James home. His testimony was explicit as to when her foot was forced in the box containing the snake, to-wit, Monday morning, August 5th.

On May 8th, Charles Griffen, a member of the investigation staff of the district attorney's office, went to Ethel Smith's house and took from an old, discarded trunk belonging to James which was in the garage, and which James had sent to her home months before, a rope, which Hope testified was very similar to the rope used in tying Mrs. James to the table, heretofore described as an ordinary cotton rope commonly used for clothes-line purposes. James had moved from the La Canada home some months prior to this incident.

The only other testimony bearing upon the question as to the time decedent was last seen alive was given by Alfred Dinsley, a neighbor of Mrs. James. He lived at a distance of some four or five hundred feet of the James home but he was not personally acquainted with her. He had an impression of the general stature and appearance of a woman he had seen four or five different times on the James premises. He stored his laboratory apparatus in a shed which he daily visited. On Monday morning, August 5th, at 9:25 o'clock, he was carrying combustible garbage to a common incinerator used by himself and the Jamses, and as he passed near the James premises a pet bull-dog inside the James' gate began barking which attracted the attention of a woman in the chicken house on the James' property who came to the door about twenty-five feet distant from him, and ‘stared’ him full in the face, half smiled and resumed her duty, and he went on his way. He described the woman as being mature, with blonde hair, and some five feet eight or nine inches in height. The witness would not make absolute identification that the woman he saw on the morning of August 5th was the same woman he had seen on the James premises on four or five previous occasions but she was of the same general appearance. He described her as being bareheaded and wearing a rose or rust-colored smock and her ‘stocking legs were visible to below her knees', and she was apparently wearing shoes. The color of the garment corresponded to Mrs. James' posecolored pajamas described by her friend, Miss Lueck. The garment was belted at the waist and was not of the pajama or divided skirt type. He could not tell whether the garment was open in the front or the back, or whether it was a pull-over. If Mr. Dinsley is correct as to his date and if the woman he saw in Mrs. James' chicken yard where the dog was evidently barking at him, a stranger, was in fact Mrs. James, and his testimony is very convincing that it was Mrs. James, then of course the story as told by Hope cannot be true. Hope testified that he helped carry Mrs. James out of the house, a corpose, hours before Mr. Dinsley saw the ‘mature blonde’ woman whom he described as having seen on the James premises. Mrs. James was decidedly of the blonde type. The description of the blonde woman he saw in the James' chicken yard, and her apparel, and the fact that the dog near her was barking at him, a stranger, is convincing proof that the woman there described was Mrs. James.

Considerable emphasis was placed on the fact that Hope called at the barbershop at intervals of approximately three weeks and talked with James on terms of friendliness. The evidence is that there was nothing about his visits to cause comment or excite the suspicion of the employees. On one or two occasions he and Hope walked to a cigar store at the corner. The inference drawn from Hope's visits by the prosecution was that Hope and James were conspiring to kill Mrs. James. Their conduct, such as it was, was open and without attempt at concealment, and if Hope's testimony is to be believed, it positively negatives any contention that he ever was conspiring to kill Mrs. James. His acquaintance with Mrs. James had not existed longer than two or three months. His testimony is very definitely to the effect that he was not given a hint nor was any suggestion made by James that he was planning to kill his wife until a very brief time before he was directed by James on the early morning of August 5th to carry the box containing the snakes into the dining room. The vague and inane expression attributed to James weeks before, to the effect that the snakes were to be used as the means of killing the wife of a man who had an extravagant and ‘troublesome wife’ raised no suspicion in his mind that Mrs. James was the contemplated victim. This definitely appears throughout his testimony, except as to one isolated instance, which he fixes as having occurred Saturday, August 3d. On that day he was returning from Snake Joe's with two rattlesnakes. James joined him later, and on the way to their destination James, then driving, stopped at a drug store and sent him in the store to buy adhesive tape and to have the mystery prescription filled. His curiosity prompted him to inquire of the druggist as to the contents of the prescription, but the druggist refused to give him any information as to the nature of the compound. He made no inquiry of James, as to its use. James, with the rattlesnakes in the car, and prepared with adhesive tape and the mystery prescription, said to Hope that his wife had $5,000 worth of insurance and he was going to collect it. This startling statement seemingly made no impression on Hope. James said nothing more and Hope asked no questions. This exhibition of mental lethargy baffles the understanding.

Lois Wright, James' niece, with whom James had been convicted on three charges, by means of the dictagraph installed by Kynette, of incestuous relations, was called by the prosecution and testified that she was working at James' barbershop beginning April or May, 1935. Her best recollection was that she first met Hope at her uncle's home, on a Sunday in July, 1935. Her aunt, Mrs. Murphy, was then at the James home. She had seen Hope at the barbershop on occasions. Sometimes he had barber work done and sometimes he sat in a waiting chair and talked with Mr. James. She had seen them walk out of the shop and around the corner, perhaps twice.

Sam Grant, a barber in the employ of James, called by the prosecution, said that he had seen Hope in the shop getting work done. He was a regular customer. He and James engaged in casual conversation. He had seen them talk in front of the shop on one occasion for a little while. He had seen others also converse with James in front of the shop. Hope was at the shop about every three weeks both before and after Mrs. James' death. No association is shown to have existed between Hope and James as to any unlawful enterprise, save the testimony of Hope, and the alleged confession.

A witness who gave assistance to the bureau of investigation and the police force, and who doubtless had considerable to do with convicting the defendant, was Mrs. Madge Reed who said she was living at an apartment house apart from her husband. While Mrs. James was attending the dental convention at Long Beach, James, at about one o'clock in the afternoon of July 10th, went to the Italian Village for lunch and while there met first a girl friend of Madge Reed who introduced him to her. She did not state the name by which he was introduced. They had something to drink and James became so far affected with liquor that he asked the girl friend to drive him home in his car. He told them he was from Kansas and was on a visit and lived with his sister on Verdugo Road. Whether he gave his true name or a fictitious name is not stated. The girl friend's name, after directions from the court to do so, was given as Merryl Barrows. The witness said she did not know her address or the street on which she lived and she had forgotten her telephone number. She had met her friend only once before at the Village. They got into James' auto at about 5 o'clock. The girl friend drove the car to Western avenue and got out and Madge Reed drove to the James home and upon entering the house James said he was going to sleep and went into the bedroom. He gave her one dollar and told her to take the car and get her dinner and when she returned he would be able to drive her into Los Angeles. When she returned from dinner James was still sleeping. In a short time Mrs. James, who had returned home in advance of her return schedule, entered the house. When she came in the door, she ‘hollered, ‘Oh, honey”, doubtless as a salutation to James. This exclamation of Mrs. James was stricken as hearsay. We think it has significance and should stand. Mrs. Reed was not acquainted with Mrs. James. Mrs. James, after a time, took her to a ‘bus connection where she took passage to her home. The witness said she did not see James again until August 11th, five days after Mrs. James' death. Mrs. Reed said James called her up by 'phone on numerous occasions, the first time being the day after she was at the James' home. He apologized for taking her to his home. He didn't think his wife would be home as she was attending a convention at Long Beach and was not expected home for three days. He asked her to go to San Diego with him. He called her up the Saturday before Mrs. James' death, which would be August 3d. He suggested that she get a girl friend and the four would go out together. The name of the fourth party was not given by the witness. She did not hear from him again until August 11th, when he called by 'phone and asked her if she had been reading in the newspapers about his wife's death and she replied she had. He wanted to talk to her about what she had seen in the papers and wanted to go to her apartment, 525 South Coronado avenue, and she told him he ‘could not,’ but ‘he came up anyway.’ He told her about his wife and ‘how they were trying to frame him on the case; that as long as his wife was dead that he would collect the insurance and he would marry me and take me north.’ She left the apartment with him for a ride. He told her that if he was indicted he wanted to spring her as a surprise witness and he would give her $2,000 if she would testify. He wanted her to testify that she had met him and his wife five weeks previous at the Italian Village in the evening; that on the morning of her death she [witness] was out riding and she saw her standing on the porch and ‘she explained that she was not feeling well and that she had on yellow pajamas and she laid in the hammock and mentioned she had a sore on her leg.’ At this point it may be pertinent to call attention to the fact that Mrs. James died not later than August 5th. An autopsy was performed on August 6th, and it is not probable that the funeral was held earlier than the second day after death. This would bring the time to August 6th or 7th. The autopsy showed drowning as the cause of death and there was no occasion to anticipate an indictment as the coroner's jury made no accusatory report and so far as the record shows there was no reason to fear criminal proceedings would be instituted and as a matter of fact no charges were made or indictment found until the dictaphone had been installed and a system of espionage had been adopted months afterwards which resulted in the incest and murder charges.

It will be recalled that the first time Dr. Wagner, the county autopsy surgeon, had any intimation that rattlesnakes had played any part in the death of Mrs. James was months afterwards and it was brought to his notice by one of the investigators. No suspicion that she had met her death by criminal agencies was given a thought until months afterwards as evidenced by the time that the body was exhumed for examination some nine months later. It does not seem probable or reasonable that James would have been discussing with Madge Reed the probability of an indictment five days after his wife's death in view of the autopsy surgeon's record and the slow progress made in developing the case. Continuing her story she said she and James had left her apartment and went to a room in a Hermosa Beach hotel. On the way they stopped a number of times for Mrs. Reed to make telephone calls. They registered (her handwriting) at the hotel. He talked about his troubles and she being a witness for him. He talked about insurance and said it was ‘a marvelous thing’ to have and that they were trying to ‘frame’ him on that point. She spent the night in the hotel and left the next morning for Los Angeles. On the way back he had her take notes so she would be advised as to what to say when she met James and his wife. She took Mr. Silverman's name (James' attorney) and phone number. The witness produced a card on which she made certain notes in James' presence. She said he gave her $60 to show that he really meant business. She added: ‘I was to get $2,000.00 whether I testified or not.’ The written matter on the card was done by her in ink and contained names and addresses. She got the card at the hotel where she said she and James stayed the night before. The writing was done while she was en route to Los Angeles. Upon arriving in Los Angeles she took a taxi for her apartment.

She was then passed for cross-examination. She knew nothing as to the whereabouts of her girl friend. Her girl friend brought James to her table at the Italian Village and introduced him to her and they had a few drinks. James said he felt he had had too much to drink and they consented to drive him home. On a Hermosa hotel registration card she wrote, on James' instructions, the names ‘Mr. and Mrs. Joseph Wright, San Francisco, California.’ She and James were shown a room by the man at the desk. They walked upstairs to a room but she didn't know what floor it was on. She had no baggage of any kind. They talked most of the night. She did not have any improper relations with James. Before retiring she took off her outer dress, shoes and stockings. She did not remember whether James disrobed or not. When she fell asleep James was sitting up talking. Asked if James went to bed she replied that she did not think it necessary to answer the question, and when instructed by the Court to answer, she answered, ‘I don't know.’ She said they were back in Los Angeles before eight o'clock the next morning. She admitted that she had lived at Wenatchee, Washington, and Salem, Oregon. She denied that she had had ‘some experiences' at Salem, Oregon. An objection was sustained as to whether she knew a dentist residing at Salem, Oregon. Her friend, Vera Russell, was living with her at Los Angeles and paying some of her expenses. She had no idea where she could be found. The witness admitted she had dropped into James' barbershop but said she could not remember the time. She said she had no recollection of seeing Lois Wright at the barbershop. She denied that she asked for and received money. This denial had reference to testimony given by James that she called at his shop the first or second day after July 10th, and claimed that she was out of pocket on account of taxi fare and other charges incurred by reason of driving James to his home, in the sum of $10, which James said he paid to her. She was then asked if she visited James' shop before or after the death of his wife and her answer was, several months afterwards. She visited his shop after he had called her at a time when her mother was dying and she did ask him for money to visit her. To the next question she answered she talked to him on the 'phone. She further testified that inasmuch as she had given him the impression that she would commit perjury for him, and inasmuch as he would pay her whether she testified or not, she thought he ‘owed her this money.’ Asked as to whether she did not tell him that unless he gave her some money she would go to the newspapers and attempt to sell her story, her answer was, ‘I don't recall.’ She testified that just before the insurance trial in November, James offered her $100 to testify at that trial. Asked when was the last time she called at the barbershop, her answer was, ‘I don't recall.’ The only money she claimed to have received from James was the $60 he gave her on the morning following the night they sat up the greater part at a Hermosa Beach hotel.

Mrs. Madge Reed offered not a person in corroboration of her story and none was given save the admission of James as set forth in his testimony recounting meeting her at the Italian Village, situated on 8th street, near Hill, in the same general locality as James' barbershop, No. 522 West 8th street. Mrs. Madge Reed's testimony has been set forth as it appears recorded in the case. James admitted that he met Mrs. Reed one afternoon at the Italian Village where he went for lunch. His wife was attending the Long Beach convention. He said he was not feeling good and he drank some cocktails and stayed at the place until five o'clock and was somewhat under the influence of what he had drunk. He met Mrs. Reed, a stranger, and her friend, and after taking the cocktails he asked her if she would drive him home as he did not want to drive the car and she consented to do so. James said he went to sleep on the way. When he woke up at home, which was about midnight, his wife was bathing his face. Mrs. Reed came to his shop a day or two afterwards and said he had promised to give her $10. She said his wife came home while she was there and took her to a 'bus line but she took a taxi which cost her $3 and she had spent other sums and he owed her $10. He gave her $10. James testified that he never stayed all night with her at any time or place; he never saw her again. He denied promising her $2,000 or any other amount if she would testify in his behalf in the event he should be indicted. She called him by 'phone on several occasions and wanted to borrow money. She stated her mother was dying in Australia and she had to have $75 to go to her bedside, and he told her he didn't have it. She then began writing him letters—three in all, and in her last letter she demanded $250. As a threat she wrote him that she had a story for which she could get twice the above amount for publication in the newspapers, but she didn't want the notoriety and preferred to sell it to him. Much of his testimony she either admitted or evaded by saying she did not remember. She said she could not recall whether she threatened him with the sale of her story for publication unless he gave her money.

Several of James' employees who were in close personal contact with him during working hours immediately following the all-night drunken episode related by Hope in which rattlesnakes were tried and discarded as instruments of death, and drowning was substituted as a more effective method, were called by both sides to show the physical and apparent mental condition of James as he appeared at work the day on which Mrs. James died. Without exception, all testified that he arrived at the shop on each occasion at the usual hour, did his work in his customary way, appeared normal and no one detected the odor of liquor on his breath or observed the slightest evidence of intoxication in any respect. August 3d, the day Hope testified he brought in the second or third lot of snakes as herein related, which was Saturday, James was busy in the shop, and took but thirty minutes for lunch, paid off the help and closed the shop at the usual hour.

This brings us to a consideration of the question of motive which has as it foundation the life insurance policies issued upon the life of Mary James, in which he was the named beneficiary. Motive is an important factor in criminal cases, the degree of strength being relative to the facts and circumstances which make up the particular offense charged. Motive without substantial evidence supporting the incriminatory acts is not sufficient to sustain a conviction. In almost every crime a motive or an advantage to be gained by the perpetrator, patent or discernible, may be shown as an urge for the commission of crime. In the instant case it is contended that the motive was the enrichment of the defendant by the death of his wife.

The defendant met Mary Busch, who was a beauty parlor operator, in early March, 1935. He had a beauty parlor stall or parlor, installed in the rear of his barbershop and she was placed in charge on a salary basis. He and Mary soon began keeping company and finally they assumed the relations of husband and wife. James, during this period, had pending in the superior court an action to annul a marriage consummated with another woman. The decree annulling said marriage had not been granted at this time, and he was awaiting the action of the court. He said he and Mary were fond of each other and had agreed to marry as soon as all legal obstacles were removed. The decree of annulment was finally made and they were married at Santa Ana, Orange county, July 19, 1935. Before the legal marriage they had been living together under a mock ceremony. The man who performed it was not a person authorized to solemnize marriages. James testified that inasmuch as he and Mary had agreed upon marriage, in order to give color to a marriage status and keep down talk or gossip, he had the mock ceremony performed. Mary did not know it was a mock ceremony at the time. A valid ceremony having afterwards been performed, there can be no doubt she knew in advance of the valid ceremony that the first was not valid. During the period when they were living together following the performance of the mock ceremony some of the policies were written on her life. That James was an open advocate of life insurance is proved beyond question by the testimony offered by the prosecution. He talked insurance openly. The several agents who had been his shop customers for long periods of time admitted they had frequently solicited his assistance in discovering and interesting suitable ‘prospects' for life insurance investments.

The earliest negotiations for insurance on the life of Mary James were had with Louis Berry, agent of the Mutual Life Insurance Company of New York. Mr. Berry testified that he had been soliciting James for insurance since he had become his customer, for about ten years. This was also true as to several other agents. In April, 1935, he told Berry that he would not be personally interested but he knew a girl that would be interested. He declined to give her name until the prospect was ready. The subject was brought up two weeks later in his shop by Berry, and James enquired the cost of a $5,000 policy on a twenty or twenty-five years endownment plan. The result was that James, after being solicited several times, called from the rear of his shop Mary Busch whom he introduced to Mr. Berry. Mr. Berry and Mary Busch left the shop together and talked over the insurance proposition without the presence of James. On May 7, 1935, Mary made application for a $5,000 policy in the Mutual Life Insurance Company of New York. A week before the application was returned James told Berry that the proposition was a little higher than one offered by the Prudential Life Insurance Company. Satisfactory terms were finally agreed on and she took the usual medical examination. The document was sent to New York and the company later asked for additional information which indicated that the issuance of the policy might be doubtful. After a delay of more than a month, however, Berry received and delivered to Mrs. James a $5,000 three-year premium term policy.

James, no doubt prompted by his recent experience as to the necessity of strict compliance with the rules governing insurance applications, on July 29, 1935, ten days after marriage, called the agent by telephone and enquired whether the validity of the policy was affected by reason of the application describing Mrs. James as a married woman at a time when she was a single woman. In her application she had classified herself as a married woman and named her estate as the beneficiary. James explained the marital predicament in which he and his wife had placed themselves and the agent took the matter up with the main office, and after more delay which provoked some complaint, a policy was issued in which James was made the beneficiary. She told the agent she had married since her first application, and the agent wrote in the name of her husband as the beneficiary at her directions. The policy was delivered by Berry to James at the shop on August 5, 1935, after the death of Mrs. James. Berry frequently enquired as to Mrs. James' health and was always told by James she was doing nicely except on one occasion early in July he said she was not well, and inasmuch as she had a health policy she was going to become fully restored to health before returning to work. No claim was made for sick benefits. The first annual premium, amounting to $59, was paid by Mary Busch.

Berry had no conversation with James after his wife's death for quite a few days. James did not return to his shop for several days after her death. He asked the agent several times thereafter if the company was going to pay double indemnity in accordance with the finding of the coroner's jury, that death was caused by accident.

Berry testified that James had done his barber work for a number of years and had given him the names of many insurance prospects. He further said he had talked with Mrs. James with respect to the policy, both in and out of the presence of James.

Max Galatz, representing the Occidental Life Insurance Company of Los Angeles, one of the companies that brought an action in the superior court to cancel its policies, to which James cross-complained, testified as to two applications for policies made by Mary Busch, one a health and accident policy, in the sum of $700, and the other, a life policy in the sum of $5,000, on which policies were issued on her applications in the latter part of May, 1935, before marriage. The agent solicited Mary Busch in the beauty shop and had never been in the barbershop before and was a stranger to both James and Mary Busch at the time he began to interest them in insurance investments. His testimony is confusing in some particulars and discloses much uncertainty as to the substance and the order of events. He testified that he never had any conversation with James before he obtained the applications and both were obtained on the same day. Four or five days previous to the time of taking the application he met Mary in the beauty shop and had a conversation with her. James was not present. He was next asked: ‘Q. Was the defendant there at any time when you had a conversation with her [Mary Busch] before you actually got the application? A. No.’ He said he had a slight conversation with James during the interim from the delivery of the application to the issuance of policy. After the $700 application was completed, James, in the presence of Mary, said, ‘Will you insure her? The agent's answer to this question is unintelligible. The thought attempted to be expressed seems to be that he told James it was necessary for him to have insurance in his own right over and above the amount provided in the policy in which he was beneficiary. The agent filled out the application form in his own hand in the presence of Mary Busch, and he asked James if he was the husband and Mary if she was the wife and each answered, ‘Yes.’ He told James, hoping, he said, to write him a policy in the amount of $5,000, that it would be absolutely necessary for him to have a greater amount of insurance on his life than he was writing for Mrs. James. James told him he had plenty of insurance. After instruction from the head office he went to James' barbershop and wrote a policy on his life in the sum of $3,000. The policies were delivered to James at a restaurant near his shop. The premiums were paid on each policy.

On cross-examination the agent testified that the first time he was in the shop was the time he called on Mrs. James in which he discussed health and accident insurance with her. James testified that the first time he ever saw Galatz was June 2d. He was cutting his hair and Galatz overheard Mrs. James ask Berry when her policy would be issued and Berry said he would be surprised if the company did not turn it down. As soon as Galatz got out of the chair he went into the parlor and began soliciting her for her insurance. This statement finds corroboration in the evidence. Galatz said he never discussed life insurance with Mrs. James. Answering the next question he said he discussed it with James in her presence. He was asked if he ever ‘discussed the subject of life insurance with Mrs. James, regardless of who was present,’ and he answered, ‘Yes.’ Following this he said he wrote her policy after talking to her and James; that he procured from her directly all the information attached to the $5,000 policy; all the answers to the questions were obtained from her directly. The witness being asked if he did not say to Mrs. James at the time he solicited her insurance, knowing of the delayed Mutual policy, that the Occidental, having its home office in Los Angeles, could deliver insurance much more rapidly than other companies, answered, ‘No.’ He did not recollect whether he told her the rates of his company were less than others or that she could save money by taking a policy in his company. He said he did not know of the delay encountered in issuing the Mutual Life Company policy. The witness denied that he ever discussed with James the subject of the payment by his company of the life policy but finally admitted that he did say to James, after Mrs. James' death, ‘What are you going to do about this insurance?’ The company had refused to pay the face value of the policy and one of the grounds of refusal, it appears, was that the assured did not pay the premium. The agent testified that Mrs. James paid the health and accident premiums but James paid the premium on the life policy. All premiums were paid in the shop in the negotiations of the three parties and the agent based his statement that James paid them on the fact that James took the money out of the cash register. He could not say definitely that James did not hand the money to her and she in turn passed it to him. There is no doubt but that the policies were issued because of the active solicitation of the agent.

Gene Waddle, unit manager of the Occidental Life, one of the companies contesting payment, testified that James called him by 'phone and he afterwards called at his shop. James said he wanted to talk with him and asked him to talk up the street with him and he followed him into a lavatory in the rear of a liquor store and asked him if he knew Mrs. James had insurance with his company. Upon being told that he did, James said he was anxious to learn and his attorney had asked him to inquire, what would be the status of his wife's policy, if issued out of wedlock. James explained they had planned on marriage but Mrs. James had been called to Long Beach on some dental work, which delayed the marriage, but they had since married. No special significance is seen in the lavatory incident. It would be but natural that a policy holder or a person interested in a policy would care to know whether the existence of the circumstances above recited would render it void. The fact that a lavatory served as a place of privacy does not give any greater sinister significance to what was said than if the information sought had been given in the private office of the insurance company. There was nothing discussed that was not a matter of record, or was not known, or was not easily accessible to the insurance company's agents, and which would have inevitably developed upon the death of the assured. The information sought was as to the legal effect of admitted facts. James had asked the agent of the Mutual Life by telephone communication a similar question ten days after the ceremony was performed.

It will be recalled that the Mutual Life policy had not been delivered to James, tested by Hope's testimony, at the time the act of destroying Mrs. James' life was commenced and fully accomplished. According to Hope she was dead in the early morning hours of August 5th. The policy was delivered (agent's testimony) at the barbershop on August 5th. Of course, it was not delivered at the unseemly hours of 1:30 or 2 or 3 o'clock on the morning of August 5th. It was conclusively shown by the direct testimony of the agents who solicited the policies of insurance in which Mrs. Mary James was the assured that she was an active participant in procuring the same and herself suggested her husband as the beneficiary or consented thereto and there is no evidence of any coercion or over-persuasion on his part to induce her to name him as her beneficiary. There is evidence to the effect that he did introduce her to certain agents who had habitually importuned him to give them the names of prospective insurers, but her name, according to the agent's testimony, was given only after he had first obtained her consent.

There is no evidence in the record to indicate that James exercised any undue restraint over his wife. In fact, the evidence without conflict, is the other way. She seems to have come and gone as she pleased, and in every sense was a free agent. Her visit to Long Beach for several days, a very few days prior to her death, and her unexpected return home on account of her condition, and her visit to her doctor's office and his call at her home, and her activities at the beauty shop and free intermingling with the public, and her association with friends, positively rebuts any implication of undue domination over her acts or volition by James.

The insurance companies refused to pay the sums stipulated in the policies and brought an action to cancel the policies. A cross-action was filed by James to recover double indemnity amounting to the sum of $21,400. All actions were finally dismissed by the payment of the sum of $3,500 to James.

The circumstances bearing on the death of Winona James, a former wife of the defendant, and the issuance of the policies on her life in which the defendant was the named beneficiary, are correlative issues to the Mary James transaction. Winona James was found dead in a bath tub in the cottage occupied by her and her husband, October 14, 1932, at Manitou, Colorado. The parties had set out soon after marriage for a visit to James' former home near Birmingham, Alabama. They went by way of Colorado Springs where they were to stop and negotiate the making of a lease of lands belonging to Mrs. James' parents to a tenant. While there they took the trip up Pike's Peak where the automobile disaster occurred which resulted in injuries to Mrs. James. Three weeks later she was found drowned in a bath tub at her home.

Mrs. Winona James was formerly a school teacher and latterly an accountant in an automobile business.

Evidence was admitted over the objection of the defendant tending to prove that the automobile incident which occurred in the jurisdiction of the state of Colorado approximately three years prior to the crime alleged in the instant case, and which resulted in serious injuries to his former wife, was caused in an attempt on the part of the defendant to take her life which purpose was finally accomplished some three weeks later by defendant causing her to be drowned.

The theory adopted by the prosecution in the instant case is framed and patterned after the theory announced in People v. Gosden, 6 Cal.2d 14, 56 P.2d 211, decided and published a short time before James was formally charged with murder. The facts in the two cases are similar in some particulars and unlike in other particulars which have to do with the principle or theory upon which evidence of another or other crimes are provable against a defendant on trial for a specific offense for the purpose of showing motive, intent, knowledge, absence of accident, or common plan or design. In the Gosden case the defendant's first and second wives, respectively, died from the administration of strychnine, a subtile poison. Defendant's knowledge of the effect of strychnine poison on the human system and the purpose or intent with which it was purchased by him, he, Gosden, claiming it was purchased for the purpose of exterminating rats, became important questions. There also existed a close similarity of the circumstances which attended the deaths of both wives. We held that sufficient reasons existed to justify the admission of proof as to criminal responsibility for the death of the first wife upon the trial of having murdered the second by means of strychnine poisoning.

In the instant case the theory of the prosecution was that James planned to kill his wife, first by procuring a rattlesnake and causing her to be bitten by it, but before its poison had accomplished his purpose he caused her to be drowned. As to the Colorado case the theory was that she was first made intoxicated, then hit on the head with a hammer and in an unconscious state abandoned to physical destruction in an unguided automobile sent dashing down the narrow, tortuous and precipitous Pike's Peak road. The motive attributable to each defendant is identical. The cause of death of Winona James is admitted to be drowning. The death of Mary James is claimed to have been caused by drowning. Both deaths are claimed to have been accomplished by the criminal acts of the defendant.

The cases which support the pronouncement that all that is necessary to admit proof of another crime where guilty knowledge or mistake or general plan or fraud or intent are the essence of the offense, is that a prima facie case be made out or that substantial evidence be given and there need be no showing beyond a reasonable doubt that the defendant committed the other crime, are not here questioned. In order to justify the admission of this character of evidence it should be of sufficient probative force to create a reasonable belief in the minds of the jurors that the other crimes were committed and the defendant committed them. Such evidence cannot be admitted if in character it is so vague and uncertain as to create suspicion only. The suggested procedure in some jurisdictions is that the relevancy of the offered proof should first be determined by the trial court upon offer made or by inquiry of the prosecuting attorney before the evidence is allowed to go to the jury. Vague and unsubstantial evidence of the commission of other crimes is clearly not admissible. State v. Hyde, 234 Mo. 200, 136 S.W. 316, Ann.Cas.1912 D, 191; State v. Meininger, 306 Mo. 675, 268 S.W. 71; Bell v. State, 208 Ind. 361, 195 N.E. 274; State v. Howard, 108 Vt. 137, 183 A. 497; State v. Jones, 27 Wyo. 46, 191 P. 1075; Sneed v. State, 143 Ark. 178, 219 S.W. 1019; Lund v. State, 207 Ind. 347, 190 N.E. 850.

The court is duty bound to carefully exclude all evidence as to other crimes not relevant to the main issue and which would only tend to degrade or defame the defendant or in anywise prejudice the jury against him.

The admissibility and sufficiency of the evidence admitted to prove that the death of Winona, which occurred in the state of Colorado in 1932, was accomplished by the felonious and premeditated act of the defendant, waiving the reasonable doubt doctrine, depends upon the further question as to whether it satisfied the rule which provides that such evidence cannot be admitted if in character it is so vague, uncertain or unsubstantial as merely to create a suspicion of guilt. Defendant further objected to an offer of proof of the other alleged crime claimed to have been committed in another jurisdiction distant more than a thousand miles from the place of trial and invoked the common law and statutory rights which vouchsafe the right of an accused to be tried in the county in which the crime was committed. The ancient right cannot be denied in a case where punishment is to be imposed for the specific offense charged in the indictment or information. The right does not exist where the evidence of another crimine is limited in its probative scope and effect to the purposes heretofore defined. The appellant complains that great distance from the situs of the offense deprives the accused in many cases of the means of discovering evidence material to his defense and, in effect, amounts to a denial of the process of the court to compel the attendance of witnesses in his behalf. Cal.Const., art. 1, § 13. The point urged is illustrated by a matter which arose at the trial of the instant case. J. D. Rogers, the superintendent of Pike's Peak Auto Highway, a private enterprise, was brought from Colorado as witness on behalf of the state. He testified that, upon his arrival at the scene where Winona James was injured and in attempting to ascertain whether she was breathing, he placed his head near her mouth and detected a strong odor of liquor on her breath. This evidence furnished support to the prosecution's argument to the jury that James had made her drunk before the automobile crash. This evidence would not have ordinarily been anticipated by the defendant in advance of trial, a contingency which frequently arises in the trial of cases. The appellant brought to the court's attention the fact that a letter had been recently delivered to him at the county jail, written by a party or parties in Colorado, outside the jurisdiction, who met and talked with Mr. and Mrs. James at the top of Pike's Peak a short time before they started down the mountain stating they could and would testify that there was no evidence or indication that either Mrs. James or James was affected by liquor. It appears from the discussion between court and counsel that the named party volunteering the information by letter and counsel for defense were acting in good faith in the matter, and counsel, in asking the process of the court to produce the evidence by deposition or otherwise, was not derelict in disclosing the information. A continuance was moved that the deposition of said person might be taken to show that Mrs. James was sober and in a normal condition a short time before she received said injuries. No formal motion having been made by way of affidavit, the court denied the motion for a continuance for the purpose stated. The motion was renewed when the assistant district attorney in his argument severely arraigned the defendant for preparing his wife for death through the means of intoxicating liquor. It is so obvious as not to require more than a mention of the proposition that, in circumstances where the means of communication or opportunity for investigation and preparation for a defense and all the other recognized advantages which local contacts afford, are made difficult or inaccessible to the person placed on trial for a crime committed far distant from the place of the trial, every opportunity should be liberally extended to enable such person to meet any surprise evidence or unforeseeable situation arising at the trial, even at the cost of a continuance. The importance of the testimony of the two Colorado persons who offered to testify in rebuttal of the Rogers' evidence as to the sobriety of Mrs. James is given added emphasis by the prominence this court has given the issue in its opinion herein as well as that given to said issue by the prosecution in argument to the jury.

We have heretofore referred in general terms to the evidence which the prosecution holds to be sufficient to support the implied finding of the jury that the other charge of murder was committed by the defendant. As briefly as possible we will further consider the circumstances from which the prosecution draws inferences which it claims satisfy the rule as to proof of other offenses and which, considered with the evidence relevant to the main case (limited to the purposes prescribed by law), constitute sufficient proof of defendant's guilt beyond a reasonable doubt.

Winona P. Wallace and James were married in July, 1932. She had been a school teacher before her marriage and later a bookkeeper for Howard Automobile Company. In 1932 C. A. Pries was engaged in selling insurance for the Prudential Life Insurance Company. He had been an acquaintance and friend of James and a regular patron of his barber shop for many years. Through the years he had suggested to Pries the names of persons who might become interested in the Prudential Insurance Company's plan of insurance. He had bought policies in his own name and had had a policy issued on his mother's life in the sum of $500 in which he was the beneficiary, long before Winona Wallace was thought of as a policy holder, and had advocated life insurance to others as a business investment and had advised an employee to consult Mr. Pries in matters of insurance. Some three or four weeks prior to May 20, 1932, he had talked with Pries as to a prospect he had in mind. He also had discussed insurance for himself. In keeping with his agreement, he invited Pries to his apartment where he met the insurance prospect, Miss Wallace. After discussing terms he (Pries) wrote an application for James in the sum of $5,000. After that transaction was completed James suggested that Miss Wallace take a like policy. Pries transacted all of the business connected with the Wallace policy with her. She answered all questions and paid the premium and James did likewise as to his policy. Pries advised the double indemnity policy, inasmuch as it was only one dollar more per thousand than the rate charged on straight accident insurance. When the naming of the beneficiary was reached James said that he and Winona were to be married within a month or two and asked if that fact would affect the naming of himself as beneficiary. The agent told him it was necessary that he should have a beneficial interest in the insured but the beneficiary could thereafter be changed. Miss Wallace's estate was made beneficiary and after marriage James was made the beneficiary. The change was executed by the insured. Both policies were personally delivered to the parties who caused them to be issued. Miss Wallace also carried a policy in the sum of $1,000, issued in 1924 by the Kansas City Life Company, in which her sister was the named beneficiary.

James testified that, after marriage, a salesman, representing Policy Holder's Life Insurance Association, called at his home and talked over with his wife a stockholders' insurance proposition which issued a $3,000 policy at the rate of $15 per thousand annually and, after talking it over, both concluded it would be a big saving to drop the Prudential policy and take a policy in the stockholders' company. She made application for two policies in the sum of $1,500 each, which were issued August 2, 1932. James was the beneficiary in said policies. There was no evidence of any attempt at secrecy in discussing any of the insurance policies or that any coercion or persuasion was used by James. In fact the evidence is without contradiction that in both cases the respective wives talked with the agents freely and separately and apart from the defendant.

The prosecution has gtiven over-emphasis to a letter written by Winona's sister upon request of James and at the joint dictation of James and Pries, agent for the Prudential Company, signed by James and addressed to Dr. Hanford, who was the chief attending physicain during the time Mrs. James was confined at the Colorado Springs hospital. The letter was written wholly at the suggestion of the insurance company's agent who wrote the policy and it had to do with the death certificate signed by the coroner, Dr. Gilmore. The agent was of the view that the report was incomplete in that it did not report the holding of an inquest. Further, inasmuch as accidental drowning was not of itself a compensable accident, that there should be shown to entitle the claimant to double indemnity, in addition to death by drowning, merely an antecedent accident as the proximate cause of death. The understanding of the parties seems to have been that if an independent accident directly caused the drowning double indemnity was recoverable and this accepted view was termed by all as a ‘contributing cause’ of death. The agent suggested to James that if the injuries to the head were the proximate cause of the drowning, such as causing a cerebral hemorrhage, or causing other symptoms, no doubt such as dizziness caused from sudden or unusual movements of the body following long confinement in bed by reason of head injuries, the coroner's report should show it, as the company would require a report showing an accident as a ‘contributing cause’ of death. Dr. Hanford, the physician who attended Mrs. James for several weeks in a Colorado hospital, upon the receipt of the letter took the matter up with Dr. Gilmore with the result that the completed report showed the ‘contributing cause’. The amended report, after consultation with Dr. Hanford and others, satisfied both the coroner and the insurance company and double indemnity was paid to James at Birmingham, where he had gone to visit with his people. There was nothing in the letter or in the transaction itself that savors in the slightest degree of a criminal purpose. Further, it has no evidentiary relation to the main and important issue of the case. As a matter of fact no inquest was held. When the possibility of an inquest was mentioned James said he could not permit or bear to have an inquest held and requested the coroner, if possible, to forego an inquest. The coroner, after investigating and finding no suspicious facts or circumstances implicating James in the commission of a crime, dispensed with holding an inquest. This is taken by the prosecution as an attempt on the part of James to supress evidence. None of the several employees of the Pike's Peak Auto Company who were at the scene of the wreck in 1932 and who were brought to this state and testified at the trial to physical conditions and in contradiction to alleged statements made four years prior thereto as to what was done and said by James in explanation of the wreck, made known by complaint or accusation any suspicious circumstances or any incriminating fact of which they had knowledge either in September, 1932, at the time the wreck occurred, or in October after Mrs. James' death at a time when the matter was in the coroner's hands for investigation. No action was ever taken by the Colorado authorities.

James became a witness in his own behalf and much of his testimony on material matters is uncontradicted. He and his wife left Los Angeles the latter part of September, 1932, shortly after their marriage, for a visit to his old home in Alabama. Before leaving they secured a loan of $150 on the Kansas City policy. They anticipated an extended visit and he leased his shop during his absence on a commission basis. As before stated, his wife's mother had authorized James to attend to the leasing of property owned by her in Colorado for a term of one year to a prospective tenant. His wife also had relatives in or about Colorado Springs whom they had planned to and did visit. In keeping with their planned itinerary, they left Colorado Springs about noon on September 21, 1932, to make the trip to the summit of Pike's Peak. They spent some time at the summit and started down the mountain at about 5 o'clock, as the sun was dropping behind the peaks. James said his wife expressed a desire to drive down and he yielded to her request. After they had gone a few miles he was viewing the scenery and the setting sun through a pair of binoculars or field glasses. The road was narrow, steep and winding. Many sign posts warned sightseers to ‘drive in the second gear’. While thus engaged in sightseeing, he felt the car make a lunge as though moving through the air. We will not attempt to describe the movements of a car or to lay down a rule of action which should be observed by the occupants of a car in moments of sudden, impending peril. It cannot be done. James said he was thrown from the car with great force as it plunged down the mountain side and lodged against a granite boulder. The car landed upright but the wheels were crushed and the body was resting on or near the ground. It was otherwise badly damaged. James said he was rendered unconscious for the time being by being whirled over the rough ground for a considerable distance. As soon as he was able he went to his wife's assistance. He found her bleeding very freely from the forehead and side of the head. She was partly in and partly out of the car. He was in a state of great mental perturbation suffering from shock and injury to the back and his right leg was rendered almost useless. It was then rapidly getting dark and he searched for his pistol to fire an alarm but it was gone. His purse was also missing and he was left penniless. He never recovered either. All that his wife could say was ‘get a doctor’. He attempted to lift her out of the car but found he could not handle her. In attempting to extricate herself from the car she had projected her head without the car and it had come in contact with granite boulders in the descent. After orienting himself as best he could he placed a blanket under and over her body and started to go back to the summit, which was the nearest station, to summon help but found the grade was steep and, as his injured leg impeded his progress, he changed his course and went down grade to Glen Cove, which, though somewhat further in distance was, because of his crippled condition, shorter in time. He reported the matter to the superintendent of the road and a crew of men in wrecking cars and with the necessary appliances went to the place where Mrs. James was left and in due time she was taken to the Beth-El Hospital, at Colorado Springs, where she was placed in the hands of two or three specialists in cranial surgery and two trained nurses. Telegrams were sent by James to Mrs. James' mother in Los Angeles, her father in Idaho, and to her sister. James found himself without money in the midst of mounting hospital, medical and nurse-hire charges. His father-in-law loaned him $100, one nurse was finally dispensed with, James and the father taking her place. The man in charge of his business at Los Angeles wired him $100. Mrs. James made good progress and after seventeen days, October 8th, her condition then permitting, and on her request, she was taken to El Cajon cottage on Capitol Hill at Manitou, a resort some six miles from Colorado Springs, to bring the costs within their means.

Mrs. James' wounds had bled profusely and her hair was described as a compact mass. James testified, and no attending or other physician was called to contradict the fact or the practice in such cases, that the attending physician had repeatedly given strict orders not to wet the hair or attempt to remove the dried and matted blood for fear of an infection. An operation had been performed. Mrs. James had become highly nervous and wrought up because of the refusal of her husband to wash the dried blood, which was crumbling in particles upon the bed clothing, from her hair.

On October 14th, James, after changing the bed linen, preparing breakfast for Mrs. James and putting the cottage in order, left at one or one-thirty o'clock in the afternoon to go to Colorado Springs to inquire as to the arrival of mail. He had been negotiating for several days with an insurance company for a loan of $250 on a policy of insurance and he expected a check from the company on that day. He also went to Colorado Springs to assure the hospital manager that his bill would be paid. It may be observed at this point that the check did come by mail a few days thereafter and was used to pay hospital and doctor bills and expenses of transporting his wife's body to Forrest Lawn, Los Angeles county, for burial. He had made a number of visits in anticipation of mail and on business matters in connection with his indebtedness as his creditors were pressing him hard for payment. He first went to the general store, which was a mile from his cottage, and there took a stage for Colorado Springs.

Alva E. Custer, the proprietor of the hotel at Colorado Springs where James had stopped during a part of the time his wife was at the hospital, was brought by the prosecution from Colorado and testified on behalf of the people. He had talked with James more or less about the accident and about his financial affairs during his stay at the hotel. Just before moving out of the hotel, James told him he was going to move his wife from the hospital to reduce expenses as he was then able to take care of her and did not have the money to keep her at the hospital and there was no use going deeper into debt. He said he had nothing to do but take care of her. He said the doctor had cautioned both him and Mrs. James against stooping over because it might cause dizziness and also against washing her head as it might cause infection. This conversation occurred more than a week before the witness heard of Mrs. James' death. The admonition of the doctor was elicited by the prosecution and no witness was called to refute it. It was repeatedly asserted by James. Custer saw James as he came to the hotel on the afternoon of the day Mrs. James died. He talked with him and inquired as to Mrs. James' condition. James said he regretted leaving her at the cottage but he had come to the Springs in anticipation of hearing from his insurance business and to see if the Company had left any word at the hotel.

Custer testified that James left the hotel on the day of his wife's death ‘mid-afternoon’.

‘Q. Three or four o'clock? A. Yes, that would be what I would think, around 4:00 o'clock.

‘Q. About four o'clock? A. Yes.’

The distance from Colorado Springs to Manitou was six miles up hill. The time element is important in fixing the time when the defendant arrived at El Cajon cottage with Gerald Rogers, the deliveryman for Leonard's grocery store, who was with the defendant when the body of Mrs. James was first seen after death. Gerald Rogers fixed the time as ‘around 5 o'clock’ in the afternoon. James, according to Custer, left his hotel about 4 o'clock. Custer did not know where he went immediately from the hotel. If he went to Manitou by foot he could not have made the distance in less than one hour and thirty minutes, according to Custer's estimate. If he went by stage, the way being evidently through a mountainous area and up hill, it would have taken him, at the rate of forty miles an hour, approximately twenty minutes to arrive at Leonard's grocery store where he made a purchase of provisions. James' cottage was another mile from the store. It is so improbable as to create a reasonable doubt that James could, within the time limits fixed by the witnesses, have gone from Colorado Springs by coach to Manitou, then walked to his cottage, drowned his wife, and walked back to the grocery store, purchased his provisions and returned in the grocery truck with the deliveryman, even though he had acted with unusual expedition. Such a theory has been advanced. If he drowned her it must have been before he went to Colorado Springs. The time element, it seems, would preclude any other theory so far as the evidence produced by the prosecution bears on the question. Gerald Rogers, who was with James when the body was discovered in the tub and assisted James in its removal, testified that the water half filled the tub, which was about four feet in length, and was lukewarm and the nude body was face upward and was quite warm. The water and the body were quite ‘soapy’. The body lay with the head directly under the two water faucets, hot and cold, at the foot of the tub and her feet were extended over the rounded edge or side of the tub near the foot. The body was carried by James and Rogers to the bed and the coroner was immediately summoned. Gerald Rogers said that on several occasions James had ridden with him in his delivery truck making deliveries to his cottage. On the day in question, after making purchases of provisions, James remarked that he wanted to ride with him. This was around five o'clock. Shortly thereafter they arrived at the cottage. Both got out of the delivery truck, Rogers carrying the groceries, and entered the front door, James in advance. James looked into the bedroom but his wife was not in her bed. Rogers continued into the kitchen with the groceries. He next saw James coming out of the dining room into the kitchen. James then opened the bathroom door and called to Rogers, who looked into the bathroom and saw Mrs. James in the bathtub as above described. Her eyes were open but she was dead. Her mouth and nose were slightly below the surface of the water. A package of Pearl soap flakes which was kept in the kitchen had been removed and the bath water was heavily impregnated with soap and her body made slippery by it. Her nightgown was in a corner of the bathroom. The cottage was situated at the top of Capitol Hill and there were a number of cottages, both occupied and unoccupied, within half a block of the James cottage. There is nothing in the testimony as to the bathtub occurrence, save its tragic cast, which has any incriminating significance. It cannot be otherwise construed except by the indulgence of suspicion and surmise, or by reversing the rule of law as to the indulgence of presumptions and inferences by casting the burden on the defendant and resolving all inferences against him.

James said his wife suggested going to Manitou and renting a cottage. He wanted to take her to her cousin's home, the Yarnells', but she objected to going there. The defendant acted as her night nurse at the hospital. Mrs. James' father also helped to nurse her. At the cottage James personally prepared her meals, bathed her and attended to her needs. The defendant went to the store and postoffice every day to buy provisions and mail letters written by Mrs. James. On the day in question he prepared her lunch and performed the household duties and, about one o'clock, started for Colorado Springs. He called at the hospital and, having finished his business, he went to the hotel, where he had formerly stopped, to inquire for his mail. It was not earlier than 4:30 when he got back to Manitou. He went to the grocery store and made his purchase of groceries, riding home with the deliveryman as heretofore told. On entering the cottage he found she was not in her bed. It is not necessary to repeat the story substantially told by Gerald Rogers as it adds nothing to what has been told. James testified that Winona, whom the Superintendent of the Pike's Peak Automobile Highway Company said had a strongly liquor laden breath, was a consistent abstainer from the use of liquor in any form and no evidence of any effects of liquor was reported by any of the physicians or nurses who attended her.

Another collateral issue brought into the case upon which prejudicial error is also earnestly urged by the defense is the testimony of Miss Yarnell, a cousin of Mrs. James, with respect to certain ‘advances' made to her by James. Miss Yarnell was a resident of Colorado Springs and she visited Mrs. James every evening when she was in the hospital and all but one or two when she was at the cottage. She drove James every day from the hospital to his hotel and frequently took him on drives about the city. She went to his room at the hotel and wrote all of his letters. She testified she had seen Mrs. James get out of bed and walk—the distance was not stated. She did not see her out of bed on any occasion at the cottage, but saw her sitting up in bed. She never heard her complain of dizziness. Her hair was matted with blood. The ‘advances' spoken of consisted of offers to kiss her a couple of times while driving. He attempted to kiss her in his room at the hotel but she told him to ‘cut it out’. She continued to write his letters and to extend many favors to him. When he left with his wife's body for California she kissed him good-bye and he gave her some money for her many kindnesses, especially in driving him about the city. She visited Los Angeles some time afterward and she met and talked with him. The people rely on the Gosden case, supra, as an authority for the admission of the kissing episode above related. The Gosden case adopted a quotation from People v. Smith, 55 Cal.App. 324, 335, 203 P. 816, holding, to quote the exact words, that ‘evidence tending to show illicit relations of the accused with another is admissible to show lack of love and affection for the defendant's lawful spouse.’ Pierson v. People, 79 N.Y. 424, 435, 35 Am.Rep. 524, is also cited in the Gosden case as authority showing motive where the defendant married the wife of the deceased within one week after the husband's death. Under the facts of that case it was held that it might be inferred that Gosden's interest in the woman with whom he had illicit relations, antedated the death of his wife. It is a far cry from the cited case to the instant case, in which it was contended all along that the insurance money was the motive for the alleged murder, until, for the moment, the prosecution changed the motive to lustful or matrimonial reasons when, as a matter of fact, there is no evidence to sustain the contention that before, at the time of or since the death of defendant's wife there were either illicit relations or desire or design on defendant's part to make Miss Yarnell his wife. Her testimony and conduct exculpate both herself and the defendant. Other instances in which collateral matters, which had no more than a colorable claim to admissibility but which decidedly tended to degrade the defendant on trial, include the sordid story of Madge Reed. No one can conclude from her testimony that James was moved to kill Mrs. James because of any desire to make Madge Reed his wife. The fact stands out that he did not marry her or make any effort to marry her. These collateral matters, valuable only for prejudicial effect, should have been excluded.

There are two uncontrovertible obstacles which stand in the way of the prosecution's theory that James planned to kill his wife with the hammer which was left on the blood bespattered floor of the automobile, covered with blood. The hammer, James explained, was taken from the rear of the car the day before and used to change a tire. He had not yet returned it to its proper place. The question which presses for answer is why, if he took his wife up the mountain to kill her and planned to give the cause of death the appearance of an accident, did he not make certain that he had executed his murderous design? He was not pressed for time. In fact, he was at the scene of the accident for some considerable time. Again, how can the fact be accounted for on any reasonable theory that the deceased, who was attended by two or three physicians and two nurses, in the care of her father for a week or more, and daily visited by Miss Yarnell during her three weeks of illness and convalescent period, made no complaint and gave no hint that her husband had attempted her life? The prosecution suggest possible retrograde amnesia, loss of memory for a period just preceding a blow administered to the head, or, that Mrs. James, the former automobile company bookkeeper and school teacher, whom James testified never drank any kind of intoxicating liquor (and no one testified that she ever did), placed on a dangerous road, rendered herself unconscious by voluntary intoxication as to everything that happened just prior to receiving the injury. Another question that cannot be satisfactorily answered is: why did not James, having planned to kill his wife with a hammer, after using it, throw the bloody instrument into the depths of the canyon or cavern for concealment, which the ruggedness of the country so abundantly invited? The inferences are that James was not drunk. The witness who detected a strong odor of liquor on Mrs. James breath did not detect any on James'. The fact that the attending physician removed particles of granite rock, which were imbedded in the wound in the side of Mrs. James' head, is additional refutation of the theory that she was struck on the head with a hammer or blunt instrument in the hands of James. That her body was thrown against granite rock, both in the descent of the car and by its impact with the boulder which stopped its course, does not admit of doubt. The windshield was broken. The wound on the forehead contained no granite particles.

J. D. Rogers, and several other employees of the Pike's Peak Auto Highway Company, were witnesses for the prosecution. Rogers testified as to the safety of the highway and the infrquency of accidents occurring on it. The testimony of these witnesses as to alleged contradictory statements made by James four years in the past with respect to the proprieties with which he conducted himself in the circumstances of the situation, (largely mere matters of detail and order of events) bear the infirmities of uncertain memory which might be expected. It is claimed that they were inconsistent with and contradictory of other statements as to the manner of and the cause of the car going off the road and as to James' acts immediately thereafter. Rogers testified that he found in the rear of James' car a pint or quart bottle of liquor about two-thirds full. He thought it bore a Mexican or foreign label. James testified that he purchased three pint bottles of liquor on a physician's prescription which he was taking to his aged mother, residing in Alabama, who needed stimulants. Alabama was strictly closed to the sale of liquor. We will not undertake to discuss the probative value of such testimony. The uncertainty and weakness of testimony given in an attempt to recall statements and conduct, estimates as to distance and the situation of objects which are not sufficiently important or exceptional as to make a lasting impression on the mind at the time they occurred, is to be expected. The important question in the case is—was it shown by material, substantial evidence that James attempted to kill his wife on the automobile trip to the summit, and that he failed to execute his premeditated purpose? He set out soon after the accident to bring assistance and witnesses to the scene. Rogers testified that he saw footprints along the side of the track of an automobile for some distance before it appeared to leave the grade. The footprints were not examined until a crew of seven or eight men had been at the scene of the accident for three hours. He said there was some dust in the roadbed which was graveled. Rogers could not say the footprints he saw fitted James' shoes. He thought they were made by a man. A number of people and automobiles had been on the road on that day, James being the last to check out. Rogers' testimony on many subjects of inquiry shows much uncertainty as to the exact fact. James claimed that he put one of the robes under Mrs. James and about her body, but Rogers said he found none and took one or two from the back of the car and himself placed it under her body. He did find one in the fore part of the car. He did not observe James showing signs of injuries but he said he did hear him moaning once or twice. He mentioned what he felt were failures to properly provide for Mrs. James' comfort before he left for assistance in the stress of the situation. James' testimony is that Mrs. James was bleeding very profusely and he was fearful she would die before he could summon medical aid. It was asserted in argument to the jury that the defendant was a ‘cunning and artful plotter’. If he had deliberately planned the murder of his wife with a hammer on Pike's Peak it would seem to have been more in keeping with the prosecution's characterization of him if he had done the things the prosecution denounced him for failing to do and arranged things in orderly fashion in order to deceive the officers he went to summon and, in so doing, taken pains that no tell-tale evidence such as the instrument of death should be a witness against him.

We are of the view that if the proof as to the Colorado murder had been placed before a court exercising civil jurisdiction upon the same evidence adduced upon the trial, the court would clearly be compelled to grant a motion, if made, to direct the jury to return a verdict for the defendant.

There was admitted into evidence, against the objection of the attorneys for the defendant, a purported confession made by James. The objection was based on the ground that the confession was not shown to have been made voluntarily and free from duress, menace, fraud and without hope of favor or reward, as provided by law, but was exacted by a course of cruel and insufferable treatment, participated in by a dozen or more investigators connected with the office of the district attorney, police and deputy sheriffs of the city and county of Los Angeles and persisted in to the point that the defendant was rendered too weak to withstand further physical beatings and mental torture with which he was threatened. The defendant was taken into custody on Sunday morning, April 19, 1936, about nine o'clock, some days after a dictaphone connection had been installed in his residence. The investigation squad actively engaged on the case consisted of J. C. Southard, in command, Charles Griffen, chief assistant of the bureau of investigation, Deputy Sheriff Williard Killion, and Investigators Everett Davis, Gray, Scott Littleton, Harry Dean, John L. Martin and Earl E. Kynette. All of said officers were unquestionably working together actively day and night with the definite purpose of forcing the defendant into a confession.

On Sunday morning April 19, James was taken from his home at 3886 La Salle avenue by Southard, Griffen and Dean, investigators, to a private house next door, 3882 La Salle avenue, occupied by the officers for spying and dictaphone purposes, where the dictaphone's part in the case was explained to him. This was done for its psychological effect. Southard said he took ‘quite a crowd’ with him at the time he and the officers took James to the house and exhibited to him the dictaphone apparatus. A number of newspaper men, District Attorney Fitts, Deputy District Attorney Williams, Officers Scott Littleton, Davis and Dean were among the crowd present. He was then taken to the office of Lieutenant Morgan, where he was questioned for more than an hour. He was next taken to the district attorney's office (Sunday forenoon) where he was examined at great length and was called upon to defend himself against grave charges made by the officers. Asked if James was informed that a charge of murdering his wife was under investigation, Southard answered: ‘I believe not.’ Attorney S. J. Silverman, who had been James' attorney in civil matters for some time and had heard that an attempt was being made to have James indicted for the murder of his wife, and James himself, testified that Silverman had instructed James to decline to answer any questions bearing on the alleged homicide except when Silverman was present. At any rate, James refused to talk after he was asked the first few questions and, according to Southward, he told Fitts ‘to go to hell’. They kept right on questioning him. Mr. Williams, a deputy district attorney, Griffen and several other investigators were present. Southard said it could have been possible that they told him they had the goods on him. The arrangement under which James was ‘worked on’ was that he was placed in a large chair, where he was compelled to sit for forty-eight hours, according to the admissions of Southard and other investigators, but on the showing in the record, the questioning must have continued for sixty hours. The investigators worked in pairs on four-hour shifts. From sheer exhaustion the defendant several times fell asleep. Never less than two and as many as eight or ten officers were plying the defendant with questions at all hours of the night. The alleged confession began to break, after days of unremitting effort, at 1:45 o'clock in the morning. No one, not even Mr. Silverman, the defendant's attorney, or Mr. Parsons, had knowledge of the place in which the defendant was held in private custody by the investigators. Neither his friends, relatives nor the public knew the place of detention. No warrant of arrest had issued and there was no public record, or any record, which would enable anyone not a member of the staff of investigators to know of or discover the presence of defendant.

The law prescribes the places in which persons charged with crime may be detained. A private house located in a residential part of a city and not complying with the provisions of law prescribing the purpose and use of county jails and their management, is not a place where persons charged or suspected of crime may be lawfully detained. Grave abuses may be practiced against persons thus illegally held in secret confinement. Pen.Code, § 1597 et seq. Every police officer who, having arrested any person upon a criminal charge, wilfully delays taking such person before a magistrate for examination is guilty of a misdemeanor. Section 145, Pen.Code. In the instant case the defendant was held in custody seventeen days without the issuance of a warrant and without being taken before a body which had power to examine the offense with which he was finally charged. He requested that his attorneys, first Mr. S. J. Silverman, whom the district attorney had reported out of the city for the week-end, and then Mr. R. E. Parsons, be contacted. Neither appearing to be immediately available, the inquisition, in which a number of the investigators took part, was vigorously and unremittingly pressed, without delay, through many hours. It was not a proceeding authorized by statute and no sufficient reason was or could be shown why the request of defendant for advice of counsel, a right guaranteed by the Constitution and by statute to every person charged with crime, was not complied with. Section 849 of the Penal Code provides: ‘When an arrest is made without a warrant by a peace-officer * * * the person arrested must, without unnecessary delay, be taken before the nearest or most accessible magistrate in the county in which the arrest is made, and an information, stating the charge against the person, must be laid before the magistrate.’ Section 859, following the procedure above cited, provides that the magistrate must allow the defendant a reasonable time to send for counsel and may postpone the examination for that purpose. Upon request of the defendant, the magistrate must require a peace officer to take a message to any counsel in the township without delay and without fee. These and other provisions of the statute cannot be circumvented by resorting to any methods which tend to deny the rights and protection which the law guarantees to every person charged with a crime. The statutes impose quite substantial fines and terms of imprisonment upon peace officers for the wilful disregard of their duties. Pen.Code, §§ 145, 147 and 149.

Early in the confinement of the defendant, Officer Southard committed an admitted battery upon him. He and Officer Griffen were ‘working’ on the defendant when Southard struck him, according to his admission, in the face or on the side of the head. We quote the incident as related by the assistant chief of the bureau of investigation of the district attorney's office, Charles Griffen. Officer Griffen and Officer Southard were the principals in directing the investigation. He and Southard began their four-hour assignment of questioning at four o'clock Monday morning. Everett Davis was present. They had not met with anticipated success. Griffen introduced the subject by saying that the defendant had been giving answers (no doubt unsatisfactory to them) all morning and Jack (Southard) said: ‘Your wife Mary was a very sweet girl, very nice woman; she was well thought of by her friends; seems to have come from a good family and it is a shame she had to die the way she did in this pool out there.’ James replied: ‘She was not very much. She was a whore whem I married her.’ Griffen said that Southard was sitting in a chair opposite to James and he reached over and slapped him. Griffen then said to Southard: ‘Take it easy, Jack.’ The remark reputed to James was a strange statement for a man under investigation for the murder of his wife, before hostile inquisitors, to make to his accusers. James testified that he had told Southard and Griffen ‘a hundred times', as they repeated Hope's rattlesnake story and the murder of his wife to him and used violent means to compel him to adopt it, that he didn't know what they were talking about and that it was because of his refusal to affirm Hope's story that he was struck. Griffen said that after James was ‘slapped’ they continued to question him but he saw no other violence inflicted upon him. Griffen questioned him the next night until one o'clock a. m. During all the time he was being held incommunicado he did not see James sleep. Griffen volunteered the statement that during all the time he was in custody he was in ‘much better shape physically and mentally’ than any man who worked on the case! This evidence was stricken out but other officers testified substantially to the same thing. James had then been questioned, admittedly for forty-eight hours. There is evidence that it was longer. Several of the officers testified that he was cool and collected at all times and he answered all questions at great length and gave them information they did not formerly have. Griffen said James did complain about his ear, but he examined it and couldn't find anything wrong with it. When Griffen returned to the place of examination at nine o'clock, five other officers were with James. At 8:30 he was taken by Officers Kynette and Davis to Ninth and Alvarado streets. Griffen and Southard followed. At noon he was taken to the district attorney's office. Griffen did not recall whether James, when at the district attorney's office on the day he was taken into custody, had requested that word be sent to Mr. Silverman, his attorney, requesting his presence. On Tuesday he saw the defendant from seven o'clock to one p. m. At eleven o'clock he gave instructions to ‘book him’ at the county jail, where he was committed to the ‘High Power Tank’.

Southard admitted that the investigators operated in relays of pairs for a period of forty-eight hours. The defendant sat in a chair and was not allowed to remove his clothing. Several times he fell asleep from fatigue and exhaustion. Southard's statement as to what he said to James about his wife being such a beautiful little girl, etc., was given in the same words as Griffen's story. James' reply, being somewhat different in substance, we repeat it: “Aw, leave me alone and quit questioning me about her. She wasn't so much before I married her. She was only a little whore before I married her,' and I lost my temper and slapped him.' The defense contended that no such words were ever uttered by James at any time with respect to his wife and it was solely Southard's disappointment in failing to have broken James down by harassment, coercion and physical violence, to the state of accepting Hope's sensational story (which was a composite product of the detectives and investigators in collaboration with Hope) which ired Southard to the point of physical violence. Southard had been an investigator for eight years and was seasoned to his task. His act was inexcusable and was in violation of section 149 of the Penal Code, which provides that: ‘Every public officer who, under color of authority, without lawful necessity, assaults or beats any person, is punishable by fine not exceeding five thousand dollars, and imprisonment in the county jail not exceeding five years.’ The defendant was under no compulsion of law or duty to answer the officers in any particular manner or at all. Several apparently disinterested witnesses and one or two officers testified absolutely that James' face showed black and blue and swollen spots which were plainly visible for several days after his arrest. He testified to terrible beatings he received in the private house in which he was detained and that his body was made black and blue from the waist up and that he had suffered a hernia or rupture from the roughing which he passed through. A physician who had examined his abdomen five months prior testified that he had observed no evidence of hernia at that time but an examination since his arrest clearly disclosed the existence of a hernia. The prosecution called a few witnesses connected with the official staff who testified they did not observe any bruises on the defendant's face but, in the main, their testimony was more in avoidance of direct and positive answers which should have been given by officers of the law. There can be no possible doubt, as testified to by one or two of the officers themselves, and by independent parties, that the defendant's ears bore marks and bruises which anyone at all observant should have seen. James said he was practically made hard of hearing by the head beating he had received from Southard and Griffen, and that his body was black and blue from the waistline upwards. Despite the admissions of the several officers who were most active in conducting the plan of continuous questioning, that James fell asleep several times while being quizzed, from sheer fatigue and exhaustion, nevertheless several of said officers testified, as astounding as it seems, that James was at all times exceptionally cool and calm and showed no signs of mental distress or fatigue, and was actually in better physical condition than any one of his inquisitors. And this, too, in spite of the fact that the questioners worked in pairs on four-hour shifts while James admittedly was carried through a sleepless ordeal of not less than forty-eight hours, but more probably sixty hours, with as many as eight or ten investigators plying him with questions. As an example of the evasiveness which characterized the testimony of the investigators generally, we quote from Jack Southard, acting chief of inspectors, as to James' physical appearance at the time he delivered him, after several days of private custody by said officers, to the proper place of detention, the county jail.

‘Q. Did you notice any marks or bruises upon his face or head when he was taken into custody? [delivered into legal custody at the county jail.] A. Not that I recall.

‘Q. Well, you did notice marks and bruises upon his head when you took him to the county jail, didn't you? A. No, I don't believe so.

‘Q. Weren't both of his ears bruised and swollen at that time? A. They were not.

‘Q. Neither one of them? A. That I wouldn't say; one may have been; I wouldn't be positive. I know that both were not.

‘Q. As a matter of fact you know that one was, don't you? A. I do not. I saw that one in court.

‘Q. You saw the bruises here when he was in court? A. The left ear was a little bit swollen at the top. * * *

‘Q. He was pretty well worn out when he got to jail, wasn't he? A. I couldn't tell you.’ (Italics supplied.)

He fixed the time he observed the bruises he was then testifying to as of the day he was before the grand jury on the incest charge. The foregoing equivocal testimony as to bruises that were visible on the defendant's body is characteristic of the testimony of the officers in whose personal custody the defendant was held for approximately two weeks. Why he was thus held incommunicado has not been and cannot be accounted for by any theory, except the practically admitted one of forcing the defendant, by the use of physical and intense mental punishment, into making a confession corroborating the unnatural, weird and astounding statement which was in the hands of the investigators and commonly referred to as Hope's story or confession. On cross-examination Southard was asked these pertinent questions to which objections were sustained on the ground that they were immaterial:

‘Q. Now, Mr. Southard, when you arrested the defendant why didn't you take him before a magistrate? [Objection sustained.]

‘Q. The reason you didn't take him before a magistrate at once was because you wanted to get a confession from him, wasn't it? [Objection sustained.]’

Southard said he gave instructions that James was not to be left alone at any time; one or more investigators was questioning him at all times; some questions he answered and some he refused to answer; he would just sit and look blankly. Southard testified that he had three meals a day but James testified that he was practically starved into a state in which he told the investigators that he would answer any question in any way that the investigators wanted him to answer it. It is the admitted fact that he was interrogated by the district attorney and his assistant, Mr. Williams, at all hours of the night, for as many as two and a half to three hours. One period continued from one o'clock to six o'clock. The officers also took part in interrogating the defendant. The plan adopted was that the investigators worked on the defendant to a point where it was deemed expedient or advisable to take him before the district attorney and if satisfactory progress had not been made he would be returned to the private custody of the investigators for the employment of such methods as would work a change of mental attitude on the part of the defendant. No other possible answer could be made to their unauthorized action which only ended with the procurement of the alleged confession. At times numerous officers would be present and sometimes, James testified, he was left with but one officer. The evidence adduced by the prosecution affirmatively shows that the defendant was shifted back and forwards in the manner herein described many times at all hours of the day and night, continuing over a long inquisitorial period. At times Hope was brought into the room, and engaged James in controversial disputes.

Officers, Killion, Gray, Griffen, Littleton, Davis and Southard were most active in procuring the alleged confession of James. The first signs of a confessional collapse, as told by Killion, occurred at midnight, May 2, thirteen days after James was taken into custody. At the above hour, in the room adjoining the district attorney's office, James said to Killion, ‘Why don't we go out and get something to eat, and I will tell you the story.’ The conference began at about one in the afternoon and ended at about 2:30 or three o'clock the following morning—a short intermission having been taken for coffee and sandwiches. The reference to ‘the story’ explains the purpose uppermost in the minds of Killion and Gray and accounts for James being in their exclusive custody at the midnight hour instead of being in jail. Killion's reply to James' proposition was, ‘All right.’ Killion and Gray then took the defendant to a restaurant at 5th and Figueroa. Killion said he once wrote shorthand. The notes he used to refresh his memory were, to use his words, ‘some in shorthand, and some in longhand, and some in scribbling’. They seem to have been entered in desultory order in a book and covered thirty-one pages, all of which he said he took during the time he and Gray had James at the restaurant. They had a steak dinner and Killion bought James a cigar and James said, ‘Now, you want to have this story’, and Killion said, ‘Yes'. James said, ‘All right; there is no hurry, is there?’ Killion wanted him to go back to the office (where the district attorney, his deputies and the investigators were waiting) but James said, ‘No, this is all right, isn't it?’ Killion replied, ‘Sure, it is all right.’ James testified at the trial that practically everything he told Killion, Southard and the district attorney concerning the death of his wife was the story which the investigators had drilled into him for hours for several days. He said he was not able to stand further beatings and physical punishment with which he was threatened; that if he gave an answer to a question which did not suit the questioners he was struck on the head. He had also received one or two terrific beatings at the hands of Southard and Griffen; he would have preferred death rather than be returned to the private residence, which the officers threatened to do, where most of the punishment was inflicted. The story he told Killion had been repeated a ‘thousand’ times to him; for days when they repeated to him Hope's story he told the officers that he did not know what they were talking about until he was finally coerced into submission.

The story which Killion reported as James' confession at the midnight dinner contains a great many of the things Hope testified to with added wickedness, equaling, if they do not surpass, the rattlesnake horrors. James is reported as saying that he and Hope were to split the insurance money. Hope asked James to let him ‘bump Mrs. James off’. Hope also suggested a fake holdup in which he was to shoot her. Hope told Mrs. James he was a medical student and could produce a miscarriage and Mrs. James wanted him to relieve her pregnancy. Hope had asked James why he didn't kill his wife and get the insurance inasmuch as she was sick and dying. Hope said he would get a rattlesnake ‘that would kill her quick’. He and Hope got drunk frequently. Finally James realized that they were doing wrong and he said to Hope, ‘We are both nuts'. Hope said he had to have some money. Hope proposed getting a spider. He brought some spiders home and James threw them out. Hope then began a quest for snakes. On Saturday night Hope and Mary talked about an operation, but both got drunk and Hope left. Hope came back Saturday morning (two days before her death) half drunk and he and Mary got drunk. Hope said he was going to do the work and at one o'clock James drove away in his car. He knew Hope was going to kill Mary with the snakes within an hour. He came back in two hours and Mary was pretty sick in bed. She didn't know what had happened. She was very drunk. He spoke to her and she said she was very sick but she would be all right tomorrow and she kept calling for him. James said the letter written by Mary to her sister was at his dictation; that he got her drunk and had her write it. Hope left, and James drank all Sunday. Hope came back at six o'clock Monday morning, and asked if Mary was dead, and James said, ‘No, she is all right’, and Hope inquired if the snake had bitten her and James said he didn't know. He said she was all right. Hope looked at her leg, which was black, and he told James that he had turned the snake out, and he asked ‘what will we do’. James said, ‘I am going to get drunk’. Hope told James to go ahead (and get drunk) and he would finish the job and James asked him how he was going to do it and Hope said, ‘I will set the house on fire and in that way we can get [rid of] everything’. Hope said they could not quit now—‘they would know about the snakes'.

James said he felt like taking a drive and went out Wilshire Boulevard and then to his shop, and Hope came into the shop, Monday, August 5th, between twelve and one o'clock, and they went to Melody Lane for lunch. It will be recalled that two or three of James' former workmen testified that James was out for lunch not longer than twenty of thirty minutes and appeared perfectly sober and normal. At lunch Hope said, ‘Well, I got rid of her’, and James asked if he had burned the house, and Hope answered no, that he drowned her in the bathtub, and James said, ‘Well, you are the craziest son-of-a-bitch I ever saw’. They had a big argument during which James said, ‘Don't you know they will throw me in jail tonight? I had a wife drown in Colorado in a bathtub and I know I will be in jail.’ Hope told him his wife was too sick and drunk to know when he put her in the tub; he said he ‘put a belt around her arms, and tied her’, and James talked about the Colorado wife. James then said, ‘Well, I went in with you, and I will take the rap. I have no defense’. James then gave him $30. Hope told James he had cleaned up the house, burned the blankets, sweaters, etc., and had thrown the body into the fish pond. Hope said he had taken all the evidence to his home and destroyed it. James said to him, ‘You damned fool, did you burn up that stuff’, and Hope said, ‘Yes'. James said the woman, Hope's girl or wife (he didn't know which), will ‘spill everything’ and Hope said not to worry about her, ‘he had enough on her to hang her’. Hope said she knew everything but she would be afraid to talk. James volunteered that he had a notion to kill Hope but he was afraid if he did the woman would talk and he ‘didn't want to have to kill them both’. Hope assured him that he had enough on that woman to keep her from talking. Hope said while he was in the Verdugo home trying to have the snake bite her, some people came but he had the blinds down and the doors locked. James said that was probably the time Ethel Smith and her party were there. Hope had told James if he could ‘kill Mary as he had’, they could get double indemnity on the insurance and they ‘would split it 50–50.’

James was afraid of what Hope had done and when he went home Monday night he took the Pembertons with him. The various sums of money Hope calims James paid him, $100, $30, $25, and $100, were restated. James said he made up his mind to kill Hope, but Mrs. Hope knew as much as Hope, so he did not execute his intention. James told Hope he would share $5,000 with him as soon as the insurance companies paid. Hope came to James one night about two weeks before James was arrested (this would be in April, 1936) and was ‘beefing’ about money and James said to him, ‘We played and lost’ and ‘I am not going to be chiseled any more for money’. Hope said if he didn't give him some money he would ‘squeal’. James replied, ‘All right, squeal, go ahead and squeal.’ (It appears that Hope became insistent for money about the time the lawsuit involving the payment of the insurance money was filed.) At this point, according to Killion, the restaurant confession was concluded by James in the following language: ‘Now, that is the story, and I never would have told it, if Hope hadn't squealed. There isn't enough men in the District Attorney's office to make me talk.’

The record shows that at least three members of the district attorney's staff and some ten or twelve investigators and officers had to this point been making continuous and vehement efforts to get a confession from James. Immediately James was taken to the district attorney's office by automobile where District Attorney Fitts, Chief Deputy Attorney Stewart, Chief Blummer, Officers Griffen, Jack Southard, Davis, Killion, Gray and Miss Adams, the statement reporter for the district attorney's office, were assembled. Hope was also present. It was then around two o'clock in the morning. James was greeted as follows: Mr. Fitts: ‘Mr. James, the boys have told me that you told the story.’ Mr. James: ‘They have got it’. It was suggested by the district attorney that he begin in his own way and relate the story. James answered that it was a very long one and it would take three or four days to tell it. He began by telling of Hope coming to his house under the influence of liquor July 3rd or 4th, saying he was broke, without work, and his ‘gal’ had thrown him out and he didn't have a place to sleep. James said he and his sister, Mrs. Murphy, were doctoring chickens sick with roup. Hope was drunk and James would not let him stay that night, gave him a dollar to get a bed and told him to come back sober, and he could stay until he got on his feet. He came back the next day and stayed two nights, occupying the sleeping porch. The third night he did not appear. Mrs. Murphy, a telephone operator of Morris, Alabama, and sister of James, was visiting him. She met Hope and prepared the meals. Mrs. James was then attending the Long Beach dental convention. Mrs. Murphy corroborated James as to Hope coming to his home drunk and entering the garage where they were doctoring sick chickens and James giving him a dollar and sending him away for the night. Hope said James first discussed the killing of his wife when she was in Long Beach. Hope knew her life was insured and said: ‘She is going to die anyway; why don't you kill her?’ James said he couldn't do it and Hope said he would ‘take her up here and shoot her in a holdup’. James replied that a lot of people had been hung for that. Hope then said he had been working with ‘a bunch of racketeers' and he had a white powder in a box that would kill in five minutes by breaking the skin on the hand and rubbing it into the wound. He wanted to try it on one of James' chickens, but James told him it was ridiculous. Hope then said he would do the job himself with a couple of snakes. It was agreed that James would give him half the insurance money. James gave him $20.

When Mary came back from Long Beach she was pregnant and sick and she finally decided she could not go through with child delivery, and wanted James to take her to a doctor. James said he did not want her to abort. She said, ‘Hope tells me he is a doctor. Why don't you let him take care of it?’ Hope disappeared and did not return for two weeks. Hope had told her he was a medical student and she asked James if he was and he said yes. Hope talked with her and it was agreed that he would take care of her. The abortion was to be performed Sunday morning, August 4th. James said if Hope put Mary's foot in a box in which there was a snake or snakes he never saw it. They had agreed to let the snake bite her. Hope would never tell where he got the snakes. Some of his snakes wouldn't strike and those that would were not venomous. Hope put rats, chickens and a rabbit in the box and nothing happened. In fact he put a rabbit in the box with one of the snakes and the next morning the rattlesnake was dead and the rabbit was walking around. He laughed at Hope and told him to lay off. Hope took his car one morning from the place where James was having it greased. He was gone three days and came back drunk. He said he had been to Phoenix, Arizona, to get black widow spiders. This was before he brought the third lot of rattlesnakes. He said, ‘All you have to do is throw them in bed with her and they will bite her’. James said he laughed and threw his ‘damned spiders' out. Hope came over to his shop and James said, ‘Hope, you are nuts and so am I. Forget about it’. He said he would. When James next saw Hope he was drunk. James said Hope was nuts when drunk. He said to James, ‘Come out here, I have a tip where I can get hot snakes'. James told him he didn't want him to get any more snakes as they would get them in trouble. Hope said James was not going to walk out on him. He wanted to make some money. James gave him $6 on Saturday night and he got two hot snakes. His wife was with him and knew ‘to a certain extent’ what they were to be used for. Hope took James home and they both got drunk. Mrs. James drank with them. ‘She dearly loved booze. No matter how sick she was she loved a drink.’ It may be parenthetically remarked that much of James' statement made after his midnight dinner as offered by the prosecution, reads as if he was intoxicated when he made it—particularly the last quotation as well as other parts. The snakes were in the box which Hope put in the garage and said he would be back in the morning. Before leaving Hope talked over with Mary the performing of the abortion on the next day. She was happy to have it done. James never quit drinking all night long and was quite tight when Hope arrived next day at eleven o'clock. James gave Hope $100 and left about one o'clock and returned about four o'clock Sunday afternoon. Hope told him she would die in ‘an hour, or fifteen minutes'. James went in to see her. Hope had her full of liquor. Hope was very drunk himself. Two or three bottles were in the room. Hope took care of taping her eyes and mouth and tying her arms.

At this point Officer Killion interrupted by asking James if Hope told him (James) when he was about to leave, if he was going to do the work, and James answered that he did and he told Hope he couldn't have anything to do with it because she had been too good to him and he just couldn't have ‘anything to do with that part of it.’ James had previously said that he had opposed Mary going to a doctor for the performance of an abortion as he felt her health would not stand it. From the subject matter both before and following the ‘work that was to be done,’ the reference is clearly to the abortion that was to be performed. Continuing, James said he was very drunk and got into his car and just drove around. When he came back about four o'clock he asked Hope how Mary was but Hope was so drunk that he didn't know what he was about. Mary was in bed covered up and made no complaint as to illness. Hope took the car and returned at six o'clock the next morning. He did not take the snake with him. When James came back, Hope told him he had put Mary's foot in the box and the snake had bitten her three times, but it had no effect on her. He further states that he had inoculated her in the leg and had performed the abortion. She complained of her leg hurting her. James said he was all upset and he and she sat and drank all night. He didn't think she felt any snake bite.

Hope came in at six o'clock the following morning and Mary's foot and ankle were swollen. James said she was all right, nothing the matter with her and after talking over her case, James asked, ‘What are you going to do about that? We had better call it off.’ Hope said we had gone too far, they will know it's a snake bite and she is going to talk. James asked, ‘What are we going to do with her?’ and Hope said, leave it to him, he would take care of her. James again asked, ‘What are you going to do with her?’ and Hope said, ‘She smokes a lot of cigarettes and lots of people die by smoking in bed. I'll burn the house up.’ James said he kept taking a few drinks and finally got in his car and left about six o'clock. He said he was drunk and was trying to get sober. He ate breakfast and went to work at 8:45. About one o'clock, Hope came into his shop and said, ‘Everything's all right.’ He and Hope had lunch and on the way back James asked him if he burned the house and Hope said no, he threw her in the bathtub and drowned her. James said, ‘You damned fool, that's the worst thing you could have done. I had a wife drown in a bathtub in Colorado Springs a little while ago.’ Hope didn't know that. James said, ‘Well, you really played hell, but it's too late now.’ James asked if he left her in the bathtub and Hope said no, he threw her in the fish pond. James said, ‘That won't stick. They will throw me in the jug when they find her. I'll be a good sport. You made a god-damned fool of yourself and me both, but I'll take the rap. There ain't enough men in the District Attorney's office to maek me talk; and there wasn't, if he had not told it. You never would have got me to talk. So of course I arranged with this couple to go home with me.’

James was asked if he killed his wife in Colorado, and he answered that he did not; or his nephew to whom he had been kind and helpful and who held a policy of insurance in which James was the beneficiary. The nephew was killed in San Francisco in an automobile accident at a time when James was living in Los Angeles and he could not have had any part in it. Hope was asked specific leading questions during the closing period of his alleged voluntary confession and his answers were in accordance with the leading form of the questions asked. The purported confession which James claims he was forced to tell depicts a carnival of drunken debauchery. James said he was not beaten or struck in the presence of the District Attorney or his deputies, but when he was taken back to the private place of detention, without the hearing of any person save his accusers, he was beaten when he refused to answer, and also for refusals to give answers which were not acceptable to his questioners. Southard admitted that in the early stages of his confinement he refused to answer certain questions. In fact Southard said he told Mr. Fitts on one occasion to ‘go to hell’. It is quite evident that he changed his mind after spending two days in private detention and the balance of the time in the ‘High Power Tank’.

The foregoing is an epitomization of the incoherent, contradictory, disconnected, incredible and irrational story which the prosecution introduced as the voluntary statement of James. It is fairly comparable to Hope's story.

We now come to the proceeding in which it is claimed that James admitted or affirmed the truth of Hope's story by failure or refusal to deny the same under the well-known rule that where one is directly charged with the commission of a crime, silence on his part or failure to deny the accusation may be received in evidence against him.

On May 2d, at 11:45 a. m., the defendant was taken into the ‘Chaplain's' room at the county jail and Hope's confession or statement was read to him. Mr. Lynch, the statement reporter of the sheriff's office, reported the full proceeding. James was brought into the room by Officer Killion. Mr. Williams, Deputy District Attorney, was seated directly opposite James at a table about three and a half feet in width. Officers Southard, Griffen, Killion and Gray were seated across the table from James. Hope was also present. The reporter's notes do not show that the defendant was advised by anyone as to his rights and no showing was made that he was not under duress or as to what was done or said by way of inducement or fear of punishment immediately prior to the statement. Hope was present and the proceedings were begun by Mr. Williams asking the defendant the following question:

‘Q. James, do you know this man, Chuck Hope? A. Yes, I know him.

‘Q. Now, Chuck Hope told us this morning that on the 4th day of August, the day before your wife was killed, etc. [Here follows two pages of a summarization of Hope's accusatory statement which was read to the defendant.]’ At the conclusion of the statement Mr. Williams added:

‘He makes that statement. Have you got anything to add to it?

‘By Mr. James: A. Nothing.

‘Q. Nothing—that is all.’

It certainly would require a reversal of the cardinal rules of criminal law that all inferences and presumptions and intendments of law are to be resolved in favor of innocence, to hold, in the face of James' experiences as shown by the record, that a failure of the accused to add to the accusations made by Hope should be taken as an implied admission of guilt. The defendant had been confronted with the accusations of Hope at every hour of the day and night for several days and he refuted them until he finally yielded at the midnight supper. Would the average person have done otherwise than to have refused to attempt to add to Hope's story of monstrous deeds? In all fairness, should not James have been advised as to the legal effect of his failure to add anything to Hope's story?

It will be noted that the statement to Killion and Gray was not taken in stenographic form. Killion said he took it in shorthand, longhand and by ‘scribbling’. It is in narrative form and bears no semblance to a stenographic report and is in the third person. When immediately taken before the district attorney no effort was made to advise the defendant of his rights. In fact it is admitted that he requested that one or both of his attorneys be communicated with. If either or both were not available at the particular time, it was sufficient notice to the prosecution that the defendant was asserting his statutory rights which could not be nullified by unduly hastening an inquisition not provided by law. It is always the duty of the law's representatives to give all reasonable assistance to the enforcement of an accused's statutory rights.

It may be noted that during the period of intense questioning which continued throughout several days, no statement reporter was present to report the methods by which the confession was attempted to be induced. It is the claim of the defense, and ample evidence supports the contention, that the alleged confession followed a long course of deprivation and physical mistreatment of a prisoner held incommunicado. It was only when the time was deemed ripe for a confession that a reporter was called to report the proceedings and in no instance were the preliminary things done and said, which caused or forced the alleged voiuntary confession, made to appear as a part of the report. These important matters, so far as referred to at all, rest in parole. Neither was the defendant properly advised as to his rights or permitted to have independent advice or counsel at the times when the exercise of such rights would have been of benefit to him. The law casts the burden upon the prosecution to show that the confession of guilt was freely and voluntarily made without the exercise of duress, fear, force, or physical or mental cruelty, or hope of reward, or immunity from punishment. Notwithstanding the crime charged may be, as denominated by Lord Hale, the most detestable in nature, such as charged in the instant case, and loudly cries imposition of the extreme penalty of the law, if legally proved, the integrity of the law, founded on experience and enacted for the safety and protection of society and the individual alike, must, in all cases, be maintained by a compliance with the procedure prescribed by the sovereign will.

Facts and circumstances in an involuntary confession, when found to be true, are admissible. People v. Castello, 194 Cal. 595, 229 P. 885. The reason of the rule is that, inasmuch as the theory upon which involuntary confessions are excluded is their possible falsity, if the confession discloses incriminating facts which are shown to be true, the reason of the rule ceases to exist, and so much of the confession as discloses the facts and the facts disclosed are competent. Thus it may be proved that the defendant made an involuntary confession showing where stolen goods were concealed and that the goods were found there, but a further statement ‘I buried it there’ is inadmissible, being part of an involuntary confession. People v. Murphy, 47 Cal. 103; People v. Hoy Yen, 34 Cal. 176; People v. Ah Ki, 20 Cal. 177. The foregoing rule has no application to the instant case as every material fact herein is disputed and no physical fact, such as pointed out in People v. Castello, supra, and the other cited cases, exists in the instant case. Therefore, they are not applicable here.

It is true that several officers testified in terms of conclusions that no violence was inflicted upon the defendant or promises of immunity were made to him in their view or to their knowledge, but this does not meet the situation. Some were not called to testify and others may not have been present at the times physical punishment was used. From the record before us the conclusion is irresistible that unlawful means were employed by concert of action from the first to the time defendant made the alleged Killion statement to force a confession. The burden cast by law upon the People was not met. The case of People v. Dye, 119 Cal.App. 262, 269, 273, 6 P.2d 313, 316, is directly in point here. Dye was convicted of murder of the second degree. The defendant, being suspected of murder, was taken into custody and confined in the Beverly Hills police station after the same fashion as the defendant here was held in custody by the officers at a private residence. Precisely the same kind of methods—though by no means as extreme—were adopted there to coerce a confession from the defendant as were adopted in the instant case. Mr. Justice Conrey, then Presiding Justice of the Second Appellate District, Division One, District Court of Appeal, was the author of the opinion which reversed the judgment of conviction and the order denying a new trial.

In discussing the methods by which the confession was procured, the late Justice Conrey said in part: ‘It shows a persistent questioning of the defendant about various matters, many of which related to the tragedy * * * including a direct charge, which defendant denied * * *. During the night the defendant became weary and sleepy [in the instant case he became not only sleepy but fainted], but the questioning went right on. Officer Gray admitted that twice he told defendant ‘to sit up in his chair’; that the defendant ‘may have been nodding; he was not asleep.’ In view of the inquisition that was going on, and the condition of the prisoner, these orders were in effect a kind of coercion. The circumstances of the questioning, and the method thereof, were well calculated to force a confession of guilt, but the process was not at that time successful. It was only after six hours more of questioning * * * followed by three days more of secret imprisonment, that the confession was finally obtained * * * . Considering the wearing-out process of inquisition, the secrecy of the imprisonment, the isolation of the defendant, and the unlawful failure to take the defendant before the magistrate (Pen.Code, §§ 821, 824, 849, and 145), the transaction has all the earmarks of a deliberate attempt to force a confession by every means short of promises, direct threats, or actual violence. [In the case at bar a direct act of violence in at least one instance is admitted. As to others the evidence is quite convincing.]'

After discussing the fundamental rules governing the voluntary character of confessions, the decision turns to the claim that the confession having been made a few days after the effect of improper methods had ceased to operate on the defendant's mind, the evidence thereby became admissible. The decision continues: ‘It is also true that if threats and inducements are made to a prisoner, and within a few days thereafter he makes a confession, such acknowledgment of the commission of the crime may not be introduced in evidence, unless it clearly appears that the threats and inducements had ceased to operate upon his mind to bring about his statement of his own guilt.’ (Citing a number of decisions of our own and appellate court decisions.)

The following pertinent paragraph concludes the discussion: “The right of the accused in a given case to a fair trial, conducted substantially according to law, is at the same time the right of all inhabitants of the country to protection against procedure which might at some time illegally deprive them of life or liberty. ‘It is an essential part of justice that the question of guilt or innocence shall be determined, by an orderly legal procedure, in which the substantial rights belonging to defendants shall be respected.’ (Opinion written by Mr. Justice Sloss in People v. O'Bryan, 165 Cal. 55, 130 P. 1042.)' People v. Wilson, 23 Cal.App. 513, 524, 138 P. 971, 975.'

Article 6, § 4 1/2, State Constitution, has no remediable application to the case. Without the alleged confession, Hope being an accomplice, his testimony stands uncorroborated unless there is other evidence which tends to connect James with the commission of the offense. Section 1111, Pen.Code. This court will not attempt to speculate as to which one, as between James and Hope, a jury would credit or, if it should credit Hope, whether it would find sufficient corroboration in ‘such other evidence’ as would tend to connect James with the commission of an offense carrying with it the death penalty. Section 1111, Pen.Code. This would be to speculate solely as to what a jury might do in the consideration of an entirely different state of facts.

The defendant at the outset, and as soon as official pressure was removed, entered his plea of not guilty and protested his innocence as against suspicious circumstances which may have been the fortuitous or unaccountable acts of chance, or may have been the brood of a wicked and designing mind. Indisputably a financial advantage accrued to James by the death of his wife. He was the beneficiary named in the policies of both wives. Both died from drowning. The death of the first was not confused with any considerable number of theories. The death of the second would indicate, if the prosecution's theories are sound, that the perpetrators of the crime became distraught with a strange, fiendish obsession for indulgences in absurd, unusual and unnatural ways, as weird in phantastic conception as the boiling cauldron's ‘hellish brew’ about which witches danced in frezied glee as they foretold the unhappy doom of Macbeth, and were not ruled by the normal and natural and less involved ways, in order to profit by the death of another.

It would add nothing to the strength of the prosecution's case to review the great mass of testimony given by the defendant on direct and cross-examination. It will suffice to say that he denied categorically and in detail Hope's rattlesnake stories and every incriminating charge and testified that no rattlesnake was ever on his premises of which he had knowledge. Eliminating the story of Hope, a self-insistent accomplice, and the purported confession of James from the case, there is no person left who claims to have ever seen rattlesnakes in James' garage or on his premises. Hope testified that he had rattlesnakes in his garage in a glass-faced box and another box one foot and a half in length and a foot wide for almost a month. James had occasional visitors and the entrance to his yard was usually through the back way into the garage. Mrs. Murphy, James' sister, a mature woman and a telephone operator, who was at his home for two or three weeks and was helping him doctor chickens for the roup when Hope entered James' premises for the first time and addressed James as ‘Doctor’, testified she never saw or heard of a rattlesnake being on the premises. Mike Allman, a reptile showman, is the only other witness who gave any testimony on the subject. His testimony has been set out herein and it is absolutely self-nullifying, contradictory and so uncertain that no court would accept it as sufficient to establish the identity of a man on trial for his life, or even to create a serious suspicion that the identifying witness himself was serious as to his ability to identify the person in question. Three snake men testified they bought from and sold Hope snakes. None knew James in any snake transaction. Hope sold some of the snakes and he said he deliberately threw two of them into the highway. He told the sellers he wanted ‘fighters'; he wanted to pit them against dogs and game cocks—to win back money he had lost playing poker.

James related his marital relations with his wife and the happy circumstances in which they lived, which was corroborated by the testimony of their close friends, Mr. and Mrs. Pemberton. The testimony of his employees and all persons in a position to know of their relations is that he treated his wife affectionately at all times. Her last letter to her sister telling her of her sickness assures her sister that she is kindly treated. He testified to his wife's pregnancy and her tendencies to nausea and the many symptoms which attend maternity. He described his leaving home Monday morning at the usual hour. His wife had not had a good night and he advised her to remain in bed all day. He took his breakfast down town to avoid the odor of food in the house. Hope was at the house. Hope later 'phoned to him from down town and told him his wife wanted him to bring home some cottage cheese. James also told how his wife was attired when he left on the morning of August 5th, which corresponded with the attire worn by the blonde woman whom Dr. Alfred Dinsley, a neighbor, saw come out of James' chicken house and stand some twenty-five feet from him, while the dog was barking at him, on the morning of August 5th at 9:25 o'clock.

After unsuccessful negotiations with the insurance company, James told the agent of the company that he was going to sue the company for the insurance money and the agent said the company did not think he would sue because the coroner's jury didn't completely exonerate him of his wife's death, and it felt that a murder charge should be placed against him if he sued. James replied: ‘I am going to sue them and I will do it if they break my neck.’ He did file suit.

The inadmissibility of the confession may be placed entirely upon the testimony of the witnesses relied upon by the prosecution.

James testified on the trial as to the ordeal to which he claimed he was subjected before the confession was made to Killion and Gray, and shortly thereafter to the district attorney and the officers in the rooms of the district attorney's office. He said he had been questioned for hours by the district attorney and the officers before he was taken to the restaurant. This is admitted. He said he was made sick and weak. His testimony is that he had told the prosecuting officer time after time that he didn't know anything about Hope's story and about eleven o'clock, after hours of questioning, the district attorney said: ‘You have heard the story over and over and we are going to clean it up and you had just as well tell me now, because we will be sitting here until Monday morning.’ He said he still persisted that he didn't know anything about the story; that he had never heard of rattlesnakes; that he didn't understand the story. At twelve o'clock midnight all the officers—some fifteen or twenty of them had been there all evening—cleared the room and sent Jack Southard in to talk to him. Southard told him what he was going to do if he didn't admit the things they wanted him to admit. He said he didn't know the story. He had heard the officers repeat it over many times. When they told him they were going to take him back to the private house and what they were going to do to him—that he had been lying all evening to Fitts—he told them if they wouldn't do it he would try to tell the story as he had heard it. When he tried to tell the story and got ‘off the story’ or omitted to include some portion of it, one of the officers would prompt him by saying, ‘Didn't this or that happen’, and in every instance he accepted their suggestion. The report on the long examination conducted by District Attorney Fitts, from 1:30 in the morning to 2:30 or 3 o'clock, shows that Killion, Gray and Griffen were present and quite often prompted James in relating the restaurant story already referred to. The questioning on this day began at the district attorney's office at two o'clock p. m., May 2nd, and lasted until three o'clock the next morning. On that day he was taken out of his tank and driven to his Verdugo home in company with two or three investigators where he was later met by others. This is admitted. What followed has been told.

District Attorney Fitts did not take the witness chair. It was stipulated that he would testify substantially as Deputy District Attorney Stewart had testified. Mr. Stewart's testimony was brief. He testified that no threats, inducements or promises were made or violence used in his presence or to his knowledge, except the Southard slapping episode. Neither was present at all times during the long hours that the officers were attempting to force a confession. He, as did other officers, testified to the calm, cool and self-possessed demeanor of the defendant at the times he was present. Also that James requested that he be given something to eat just before fore being taken to the restaurant.

James testified at great length at the trial and we will not attempt to make a complete resume of his testimony. He denied the rattlesnake story and all evidence given by Hope and the officers which tended to connect him with the death of his wife, including the testimony of Madge Reed, which has been sufficiently discussed. His dealings with the insurance companies, which were openly made with the several agents, have been set forth by the prosecution's witnesses and it is not necessary to again refer to them. Every incriminating fact and circumstance which was brought to his attention was denied. We will briefly refer to his testimony, which is corroborated in several important matters by Mrs. Murphy, who was at his home within a few days of the death of Mrs. James, and by other witnesses. She was in the garage and the back yard much of her time working with the chickens. She saw no snakes.

James testified that Hope came to his shop Saturday, August 3rd, at ten or eleven o'clock. Saturday was a very busy day in the barber-shop. He told James he had lost his job and wanted to go to Long Beach to cash his pay-check. Hope borrowed James' car and went away. While he was gone he filled a prescription, written by the attending physician, which James gave him to have filled for his wife. At 5:30 he came in the shop and handed James his keys. The next morning, Sunday, at eleven a.m., he came to James' house. He told James he had come to perform an abortion on his wife. James said to him his wife told him about it Friday night and he didn't want Hope to tell him anything about it. James said he begged his wife not to submit to an abortion. He wanted her to go to the hospital where he was regularly paying a hospital tuition. She refused to go to the hospital. He told Hope an operation was against his will. James said he had left his earnings in the cash drawer and he drove to Los Angeles to get them. Hope was at the house when he left. He returned at one o'clock and Hope left in James' car. He was to return it that night, but he did not come back until 6:30 Monday morning. James was angered at Hope, and Hope admitted he upbraided him for keeping his car all night. Mrs. James was restless during the night and James left home at the usual hour without breakfast and advised Mrs. James to remain in bed. She said she was as comfortable up as in bed. The Jameses were to dine with the Pembertons that evening, but Mrs. James was not in condition to go and it was arranged that the Pembertons were to dine with the James with the result already told.

Several persons were in the immediate vicinity of the fish pond at about nine o'clock on the morning of August 5th, but no one saw her body on the yard walk. Mr. W. D. McGregor had an appointment with the next door neighbor, Mrs. Pauline Cruickshank, and by mistake entered the James' premises. He rang the James' door bell three or four times, picked up a note and stuck it in the door, and walked about the premises quite a while, but did not see Mrs. James' body. Mrs. Cruickshank was in her yard next door from eight to nine o'clock in the morning but nothing unusual attracted her attention. She said her vision was cut off from the particular locality. The testimony of Dr. Dinsley, who saw the woman described by him on the James premises, did not see Mrs. James' body on the cement walk. The testimony as to the place where Mrs. James' body lay, being more or less hidden from view at certain points, was a disputed matter. Some of the witnesses testified that if Mrs. James' body was at the place described, it would have been visible from almost any point of the yard. Others contended that the shrubbery would have hidden it from view at given points. It is Hope's story that her body lay in the front yard on the sidewalk, from about 6:30 or seven o'clock in the morning until eight o'clock in the evening. If his testimony is true, the weight of probability is that it would have been seen by some one of the several persons who were on and near the premises.

James said he introduced Hope at the breakfast table on Sunday morning, at which Mrs. Murphy, Lois Wright, Hope and himself were present, as Dr. Smith. He said he did so at Hope's request, as Hope said he was keeping his identity concealed inasmuch as he was having trouble with an alimony proceeding. James testified that Hope had told him that he had been, for some time, a medical student and had worked with ‘dope’. On cross-examination James said before he left his home on the morning of August 5th, Mrs. James said she wanted to see Hope and he and Hope went into the house and she told Hope she ‘had not menstruated yet’ and he said ‘she would and he would stay there with her’.

The attorneys for the defendant on motion for new trial, in addition to numerous assignments of error, including erroneous rulings on the admissibility of evidence and the giving or refusing to give requested instructions, filed affidavits setting forth irregularities of the trial which they averred were highly prejudicial and deprived the defendant of a fair trial. While some of the assignments as to erroneous rulings on matters of evidence are not without merit, we deem it unnecessary to consider each assignment specifically. We are of the view that the rulings against the defendant were in several instances too narrowly restricted. That said investigators, and particularly Officer Southard, were not only adverse witnesses, but were positively hostile to the defendant, incontrovertibly appears from the record. Rulings in such a case as this one should be liberal to the end that the motives, purposes and good faith of the parties may be subjected to a most searching examination.

Counsel for the defense complain as to misconduct on the part of counsel for the People as to their arguments to the jury in assuming facts as actually proved, which were highly controversial matters, and also as to the vehement and scathing manner in which the defendant was arraigned as to matters which were not germane to the main issue. It is not necessary to devote time to other assignments in view of the major errors which in our opinion compel a reversal of the case.

The affidavits of R. E. Parsons and Wm. J. Clark, Esqs., defendant's attorneys, aver various acts of misconduct. They are predicated in the main on the dramatic manner in which two live rattlesnakes were brought into the courtroom in a glasscovered box some five feet in length and placed in front of the jury. The snakes as carried down the aisle shook their rattles furiously. It is not necessary to describe the consternation into which the crowded courtroom was thrown. There are some things of which the court will take judicial notice and this is one. The inside of the box contained smears of venom where the snakes had struck the sides of the box. This was called to the attention of the jury. The averments are that spectators rose to their feet, some gasped from nervous fear and persons nearest the aisles shrank away. Many uttered audible exclamations of fright. Counsel incorporates in his affidavit as descriptive of the scene the following account taken from the Los Angeles Herald-Express, a newspaper of large circulation:

“Buzzing their hollow rattles so loudly that women in the crowded courtroom shivered and shuddered at the eerie, frightening sounds, two diamond-back rattlesnakes glittering in their new skins today were placed on the counsel table in Superior Judge Charles W. Fricke's court, where Robert S. James, Birmingham barber, crouched ghost-faced and jittery at his trial for the murder of his golden-haired bride, Mary.

“Paraded across the courtroom in a velvet covered venom-splashed, 5-foot glass cage, two deadly diamond-back rattlesnakes late today hissed and shook their hollow rattles eerily, and struck out with their evil wedge-shaped heads, as they were exhibited less than 2 feet away, before the fascinated eyes of 10 men and 2 women who make up the jury trying Robert S. James for the murder of his golden haired wife, Mary'.'

The Los Angeles Examiner, another newspaper of wide circulation in Los Angeles, made the following comment: “Men's enemy from primordial ages, the snake, yesterday was made the living, visible symbol of the Robert James murder case. Two diamond-backed rattlesnakes hissed and struck before the trial jury as a long glass box was borne forward like a hideous offering of a black ritual'.'

Affiants have also incorporated in their affidavits various excerpts which purportedly express the prejudice aroused in the minds of named jurors against the defenant by the exhibition of the snakes. This, we cannot consider for obvious reasons.

Appellant further complains that the jury was permitted to go at large and mingle freely with the general public, which harbored a strong feeling of prejudice against the defendant before the trial was commenced, and affiant seriously considered making a motion for a change of venue. When the jury was selected affiant suggested to the trial judge that the jury be placed in the hands of the sheriff but the request was not granted. This was a matter within the discretion of the court. The jury was admonished by the learned trial judge on each adjournment not to read any comments made as to the guilt or innocence of the defendant and not to be influenced by anything whatsoever but the evidence and instructions in arriving at their verdict. Be this as it may, it is the contention of appellant that the metropolitan newspapers, before and during the trial, daily printed sensational and prejudicial articles which were circulated in the streets by news-criers and at newsstands which painted the defendant in such hideous colors, to which were added daily adverse comments and overheard street condemnations, as to make it improbable, if not impossible, for an average person to have calmly and dispassionately withstood withering onslaught and considered the evidence uninfluenced by the hostile opinion of an overwrought and frenzied public, which was unquestionably communicated to the jury in every form of modern news transmission.

It is further averred that an article signed by Scott Littleton, staff investigator for the district attorney's office, was published in a nationally known magazine which was widely circulated in Los Angeles during the trial of the case, purporting to give in detail the methods by which the confession was obtained and matters which did not appear in evidence, all of which were highly prejudicial to defendant. If true, said article is conclusive evidence of the illegal methods employed in obtaining the alleged confession. Said article also contains information which would materially aid the defendant in another trial in breaking down the contention of the prosecution. It is also averred that Madge Reed, whose attempt to extort money from James appears in evidence and who admitted that she gave him the impression that she was ready to commit perjury for money to aid him in his defense if he was prosecuted, has since written letters to the insurance company contesting payment of a policy issued on the life of Mrs. James, and also to the investigators, which have lately come to the knowledge of the defense and which are wholly inconsistent with and at variance with her testimony given at the trial.

By what has been said in considering the case we are not to be understood as vindicating James or in any way absolving him of any criminal connection he may be shown to have had with his wife's death in conformity with the rules of law. Our concern in the matter is that the rights and guarantees which the Constitution and statutes vouchsafe to every person accused of crime shall be fully accorded such person in the form and in the manner provided by the rules which wisdom and long experience have formulated as affording the best and surest protection against criminal acts which the human mind has been able to devise without encroaching on the right to enjoy life and liberty unless, adjudged by the fundamental rules of law under which we have long existed, such citizen or individual has forfeited his rights to the one or the other. The physical consequences that may befall James, or any individual, is not more important to the welfare of state than the uniform application of the law to all cases in which human life and liberty are involved.

Some of the major grounds on which I base my dissent are as follows:

1. The inherent improbability of Hope's rattlesnake story.

2. There is no sufficient corroboration of the testimony of Hope that James ever saw any rattlesnakes on his premises or elsewhere.

3. The uncontradicted testimony of the witness, Dinsley, that he saw a woman, who could have been none other than Mrs. James, in her chicken yard, hours after Hope said she was dead. This testimony is corroborated by the fact that several persons were within the James' dooryard at about nine o'clock in the morning and nobody saw her body on the cement walk.

4. The letter found written by Mrs. James to her sister on the morning of August 5th is persuasive evidence that it was written during the daytime of that day and long after the hour that Hope said she had died.

5. There is an abundance of testimony that an abortion was attempted and that Hope permitted himself to be known as ‘Dr. Hope’.

6. The abortion story is further corroborated by the dilemma in which Hope found himself and, according to his own statement, he advised James to take Mrs. James to a hospital. That the person whom they were attempting to kill should be taken by them to a hospital to be restored to health is too absurd to require comment.

7. The testimony of Hope to the effect that Mrs. James was in a sodden state of intoxication at the time of her death is rebutted by the the chemical analysis made of her stomach which showed that it contained no alcohol. Serious contradiction and inconsistencies appear in the record which make the testimony of Hope extremely doubtful in many respects.

What has been said by way of disagreement will the main opinion is not to be understood as an imputation that the officers who participated in the prosecution of James did not believe that he was guilty of the crime charged. The case, as a matter of fact, is so mixed with horrifying incidents as to create a prejudice against the person so charged, which may, unwittingly, influence the judgment of partisans to accept surmises and suspicions and conjectures as proof of substantial facts which they fall short of supporting. The zeal of the officers in an effort to convict has led them far beyond the boundary lines prescribed by the Constitution and the statutes, which cannot be justified on the grounds that the end justified the means.

Other grounds compelling a retrial have been heretofore considered.

In my opinion a new trial should be granted.

PER CURIAM.

For the reason that Mr. Justice HOUSER was not present at the time when the argument was heard in this case, he does not participate in the decision thereon. Mr. Justice NOURSE sitting pro tempore.