36 Cal.2d 615, 5100, People v. Stroble

Docket Nº:5100
Citation:36 Cal.2d 615, 226 P.2d 330
Opinion Judge:[10] Schauer
Party Name:People v. Stroble
Attorney:[7] John D. Gray, Harold J. Ackerman, Harry Kitlar, Clore Warne, Edmund W. Cooke, A. L. Wirin, Fred Okrand, Loren Miller, Robert S. Morris, Jr., Bayard F. Berman and Leon M. Cooper for Appellant. [8] Fred N. Howser, Attorney General, Frank Richards, Deputy Attorney General, W. E. Simpson, Distric...
Case Date:January 19, 1951
Court:Supreme Court of California

Page 615

36 Cal.2d 615

226 P.2d 330

THE PEOPLE, Respondent,


FRED STROBLE, Appellant.

Crim. No. 5100.

Supreme Court of California

Jan. 19, 1951

In Bank.

Page 616

[Copyrighted Material Omitted]

Page 617


[226 P.2d 331] John D. Gray, Harold J. Ackerman, Harry Kitlar, Clore Warne, Edmund W. Cooke, A. L. Wirin, Fred Okrand, Loren Miller, Robert S. Morris, Jr., Bayard F. Berman and Leon M. Cooper for Appellant. Fred N. Howser, Attorney General, Frank Richards, Deputy Attorney General, W. E. Simpson, District Attorney, and A. Alexander, Deputy District Attorney, for Respondent


[226 P.2d 332] SCHAUER, J.

Defendant appeals from a judgment which imposes the death sentence and from an order denying his motion for a new trial. He was charged with murder and pleaded not guilty and not guilty by reason of insanity. The death sentence was imposed pursuant to a jury verdict which found him guilty of first degree murder and the trial court's finding, after waiver of jury on the insanity phase of the trial, that he was sane at the time of the homicide. We have concluded that defendant was fairly tried and properly convicted.

It is true, as defendant points out, that the record discloses that representatives of the People, prior to the trial, were guilty of flagrant misconduct. Such misconduct, however

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reprehensible, does not appear, under the extraordinary circumstances of this case, to have materially affected the regularity of defendant's trial and conviction; and it is not the function of this court to reverse a judgment solely as a rebuke to "law enforcement" officers for their own lawless acts, and improper administration of law, independent of the trial which resulted in that judgment.

Sufficiency of Evidence

Defendant urges that the evidence does not show deliberation and premeditation. Except as to this issue there is little conflict in the evidence as to any significant fact, either objective (defendant's physical acts, which included the infliction of many mortal wounds) or subjective (defendant's state of mind, which included the ultimate fact of specific intent to kill). There is much expert testimony variously interpreting defendant's state of mind in relation to "deliberation" and "premeditation." Defendant did not take the stand; his description of his unwitnessed behavior is found in seven detailed confessions, all in substantial accord, and at least five of which appear to have been voluntarily and legally given.

Defendant's victim was a girl, 6 years of age. On the day of the killing (November 14, 1949) defendant, a man of 68, was in a state of nervous apprehension and had been drinking alcoholic beverages. This mental state, which was an important contributing cause of the homicide, arose in the following manner: Four months previously defendant had been arrested on a charge of contributing to the delinquency of minors. The charge was based largely upon his having assertedly fondled small girls to satisfy his sexual desires. Defendant was released on bail. He did not appear for trial, but fled from the state, [226 P.2d 333] and a warrant for his arrest was issued. In November he furtively returned to Los Angeles to visit his daughter, son-in-law and their children. The son-in-law told defendant that he must surrender to the authorities. Defendant was terrified at the prospect of going to the police; he promised to, but did not, do so.

Defendant was alone in the home of his daughter and son-in-law on the afternoon of November 14. His victim came to the house seeking defendant's grandchild, her playmate. Defendant kissed and fondled her. Assertedly, the child on previous occasions had submitted to such treatment without protest and with apparent pleasure. On this occasion, however, she objected and started to scream. Defendant, in a

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terrified attempt to silence her, choked her with his hands. She became quiet; he stopped choking her; then she moved again; and defendant knotted a necktie tightly around her neck. Then, with intent to kill the child (who was not yet dead) in order to terminate her suffering, defendant inflicted the following injuries with various instruments which he obtained successively from various places: Two hammer blows on the temple; three stab wounds, two in the chest and one in the back, with an ice pick; six skull fractures with the blunt end of an axe; one stab wound, which cut the spinal cord, in the back of the neck with a kitchen knife. The last wound was in imitation of the final wound which defendant had seen inflicted on bulls at bull fights.

Defendant then went to Ocean Park, rented a room under an assumed name, and spent two days wandering about. On the morning of November 17 he returned to Los Angeles. He was sitting in a bar at Fifth and Hill Streets, drinking beer and attempting to decide whether he should get in touch with his family, the attorney who had represented him in connection with the pending morals charge, or the police, when he was arrested.

Corpus Delicti

Defendant urges that the corpus delicti was not proved by evidence independent of his confessions. He argues that there is nothing in the record except his extrajudicial statements which could show that the murder was deliberate and premeditated, because (citing People v. Letourneau (1949), 34 Cal.2d 478, 487 ) deliberation and premeditation cannot be inferred from the manner in which the wounds were inflicted. The Letourneau case does not support this argument. There, Letourneau's attorney asked the autopsy surgeon whether "whoever inflicted the wounds on this woman certainly must have been operating at the time under an abnormal ... frame of mind." An objection to this question was held to have been correctly sustained, in that, as was expressly pointed out, "it is not shown that from the nature of the wounds alone the doctor could draw any material inferences which the jury themselves could not draw"; it is not there suggested that the jury could draw no inferences from the condition of the victim's body. Here, five different implements were used, each in a manner evidencing an intent to inflict death, not merely injury or random mutilation. There is evidence apart from defendant's confessions that before the child's death the implements were at various

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places about the premises. An inference can be drawn that the killer who collected and used the implements had determined that he wished to bring about death and carried out that determination. This, in the light of the other circumstances including the charges against defendant which were then pending, is a sufficient prima facie showing of deliberation and premeditation.

Asserted "Atmosphere of Public Pressure"

Defendant claims that he was deprived of a fair trial because the trial court did not protect him from, and the district attorney fostered, "public pressure." The killing and the subsequent search for defendant received much publicity. Immediately after defendant's arrest he was taken to the office of the district attorney, interrogated, and confessed. The district attorney, even before defendant completed his statement, released to the press details of the statement (including defendant's admissions of sex play with his victim [226 P.2d 334] and other children on occasions prior to the killing) and also announced his belief that defendant was guilty and sane. At the time of defendant's arrest and at the time of his trial (which began some seven weeks later) there was notorious widespread public excitement, sensationally exploited by newspaper, radio and television, concerning crimes against children and defendant's crime in particular. In these circumstances, defendant urges, it was impossible for him to obtain an unbiased jury, and due process requires a new trial even though there is no showing that any juror was actually influenced by the sensational publicity and the popular hysteria.

In connection with his claim of "public pressure" defendant also calls attention to...

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