176 Cal.App.2d 458, 6272, People v. Scott

Docket Nº:6272
Citation:176 Cal.App.2d 458, 1 Cal.Rptr. 600
Opinion Judge:[10] Shinn
Party Name:People v. Scott
Attorney:[7] Morris Lavine for Appellant. [8] Stanley Mosk, Attorney General, William E. James, Assistant Attorney General, William B. McKesson, District Attorney (Los Angeles), Manley J. Bowler, Chief Deputy District Attorney, J. Miller Leavy, Arthur L. Alarcon, and Lewis Watnick, Deputy District Attorne...
Case Date:December 21, 1959
Court:California Court of Appeals
 
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Page 458

176 Cal.App.2d 458

1 Cal.Rptr. 600

PEOPLE of State of California, Plaintiff and Respondent,

v.

Leonard Ewing SCOTT, Defendant and Appellant.

Cr. No 6272.

California Court of Appeal, Second District, Third Division

Dec. 21, 1959.

Rehearing Denied Jan. 7, 1960.

Hearing Denied Feb. 17, 1960.

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COUNSEL

Morris Lavine, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., William B. McKesson, Dist. Atty. of Los Angeles County, Manley J. Bowler, Chief Deputy Dist. Atty., J. Miller Leavy, Arthur L. Alarcon, Lewis Watnick, Deputy Dist. Attys., Los Angeles, for respondent.

OPINION

SHINN, Presiding Justice.

L. Ewing Scott was convicted of the murder of his wife Evelyn, who disappeared from her home May 16, 1955. He was indicted by the Los Angeles County Grand Jury in October, 1956, for murder, for 9 offenses of forgery and 4 offenses of grand theft. The count charging murder was tried; the others were removed from the trial calendar and were not tried. The trial to a jury resulted in a conviction of murder of the first degree and pursuant to a verdict fixing the penalty appellant was sentenced to life imprisonment. He appeals from the judgment and an order denying his motion for a new trial.

The principal contention is that there was insufficient evidence to establish the corpus delicti. The evidence was wholly circumstantial. It is not claimed that in a trial for murder the death of a missing person and the use of criminal means to accomplish death cannot be proved by circumstantial evidence, provided it is sufficient to preclude every reasonable theory of innocence of the accused. The principle is well established. If it were not so we would have to hold the evidence insufficient to support the verdict.

Mrs. Scott simply disappeared from her house, dropped out of sight, and has not been heard from. There was no evidence of violence or other means of death used upon her and no body, or part of a body has been found. Appellant did not testify at the trial. His only explanation of his wife's disappearance has been that she left home in her car about 4:30 p. m. during his temporary absence and that he has not seen or heard from her since that time. He asks where is there evidence as to when she died, where she died and how she died, or that she is dead. The People reply that the answers to these questions are to be found in a multitude of circumstances developed by the testimony of many witnesses and reported in some 6,000 pages of the reporter's transcript.

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The case in hand is without precedent in this country. There is no reported case from our state or federal courts that in its facts bears close resemblance to the present one. For that reason we shall not abbreviate our statement of the evidence nor our analysis of it. In some respects the evidence was cumulative, but properly so. The jurors no doubt gained a better understanding of many occurrences and conditions described in detail by numerous witnesses that could have been conveyed to them by mere generalizations of only a few.

The theory of the People can be stated as follows: It would be utterly unreasonable to believe that Mrs. Scott would have run away from her home, her husband and her friends; it would have been an irrational thing for her to do. If it was unreasonable to believe that she would have left home voluntarily that would have been a circumstance tending logically to prove that she did not leave of her own accord. The People's theory then proceeds to the activities of appellant both before and after his wife's disappearance. It is contended that the evidence proved that he had a motive for doing away with his wife, he coveted her large estate, attempted to prepare her friends for an explanation of her disappearance at some future time, was pleased and satisfied when she disappeared, did everything in his power to deceive her friends and the authorities in order to prevent an investigation, promptly set about through forgeries and thefts to steal her property, and fled the country when he feared that he would be charged with her murder. Thus the evidence was centered in proof of the characters, the motives and the activities of two persons. More precisely, it was centered in proof of their respective states of mind which would tell whether Mrs. Scott had a reason or purpose for running away, whether appellant had a motive and a plan for making away with her and whether he knew after the 16th day of May, 1955, that she was dead.

Mrs. Scott was 63 years of age. Her marriage to appellant was her fifth. Her first husband was a Mr. Kiernan from whom she was divorced. She married a Dr. Lewis whom she also divorced. In New York she married Clement Pettit and came to California with her husband, taking residence on San Rafael, in Pasadena. Mr. Pettit passed away and Evelyn married Norris Mumper who soon suffered a fatal heart attack. In 1949 she married appellant in Nevada. The San Rafael residence was sold to Hewlings Mumper, brother of Norris, and the Scotts moved to Bel Air, on Bentley. At the time

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of her marriage to appellant Evelyn had an estate of the value of some $400,000, consisting of property in Milwaukee and securities worth about $190,000. Her yearly income was around $20,000. A few years after her marriage to appellant she converted securities worth in excess of $200,000 into cash and made no new investments. Her income thereafter was from her Milwaukee property and amounted to about $17,000 a year. Appellant, who was not a man of means, and was without income, depended upon his wife for support.

There was evidence of physicians and friends that Mrs. Scott was in good mental and physical health; she was intelligent, gay, devoted to many fine friends, leading a tranquil domestic life, possessed of a more than ample estate and income and quite satisfied with her way of life. The evidence tended to prove that if she went away it was without preparation, without money or extra clothing and leaving behind two pairs of eyeglasses and a denture which she habitually wore, and which were subsequently found on adjoining property buried under leaves and ashes. With respect to the conduct of appellant after his wife's disappearance it is contended that his attempts to frustrate an investigation and his every act and statement proved beyond question that he knew his wife was dead.

We shall state first the evidence which the People contend demonstrated the extreme improbability that Mrs. Scott would have voluntarily left her home, her husband and her friends. Evidence was received of many significant facts which had direct bearing upon that question. The jurors heard the testimony of physicians and many of Mrs. Scott's intimate friends, including those who were familiar with her business transactions and capabilities.

There was medical testimony with respect to Mrs. Scott's mental and physical health. Dr. Purcell Schube, a psychiatrist-psychologist, was consulted by Mrs. Scott in June of 1945, soon after the death of Mr. Pettit. She visited him intermittently but never exhibited evidence of psychosis or neurosis; she came to him only to discuss matters which caused her anxiety after the death of Mr. Pettit and the later death of Mr. Mumper. He found her at all times to be highly intelligent and a healthy woman.

Dr. John E. Wirth testified that in 1947 he removed a skin cancer from the face of Mrs. Scott and also a papilloma from her cheek; one was benign, the other malignant. In 1950 he removed a benign lesion from her left eyelid. In March 1950

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a slightly brown pigmented area was removed. There were somewhat similar treatments up to July 1954 for mere thickening of the skin. There was nothing at all serious in the conditions for which Mrs. Scott was treated.

Dr. Rudolph Schindler, a specialist in internal medicine, testified that Mrs. Scott first consulted him in April 1952, complaining of abdominal pains. Her condition was diagnosed as diverticulosis and one which because of lack of inflammation was a minor ailment not acute enough to become diverticulitis. In other respects, Mrs. Scott was in sound physical health. She was given medication and the treatment administered was successful. At intervals to the month of February 1955, Dr. Schindler gave Mrs. Scott physical examinations and in March 1955 he removed a small polyp which was benign; it was a very minor operation which did not require anesthesia. In Dr. Schindler's opinion Mrs. Scott was an exceptionally intelligent woman, unusually sensible, reasonable, quiet, ladylike and cooperative. She was mentally healthy and well poisted; in March 1955, she was a perfectly healthy woman.

Numerous witnesses testified to Mrs. Scott's character, the many close friendships she enjoyed and to her apparent satisfaction with her way of life.

Among Mrs. Scott's most intimate friends was Mrs. Mildred Schuchardt whose acquaintance with her commenced in 1935 when Mr. and Mrs. Schuchardt and Mr. and Mrs. Pettit took a trip abroad together. A fact that brought the two families closer together was that both Mr. Pettit and Mrs. Schuchardt suffered from arthritis and frequently discussed their problems. After the European trip the friendship of Mrs. Schuchardt and Mrs. Scott grew stronger. They attended many functions together and exchanged parties and dinners. Telephone conversations between them were of almost daily occurrence. Mrs. Schuchardt's last conversation with Mrs. Scott was by telephone on May 4, 1955. Mrs. Scott said nothing...

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