People v. Avery, Cr. 5064
| Decision Date | 26 May 1950 |
| Docket Number | Cr. 5064 |
| Citation | 35 Cal.2d 487,218 P.2d 527 |
| Court | California Supreme Court |
| Parties | PEOPLE v. AVERY. |
Morey S. Levenson and Byron F. Lindsley, San Diego, for appellant.
Fred N. Howser, Attorney General, Walter L. Bowers, Assistant Attorney General, and Frank Richards, Deputy Attorney General, for respondent.
This is an appeal from a judgment following the conviction of the defendant of first-degree murder and imposing the death penalty.
Defendant Herman Avery was charged by information with the murder of two persons his wife, Catherine Neal Avery, and his mother-in-law, Estella Neal. The trial court appointed counsel for him. He pleaded not guilty and was tried before a jury. The jury found him guilty of murder in the first degree on both charges and without the recommendant of a life sentence. No motion for new trial was made. Judgment of death was imposed. This court appointed counsel to represent the defendant for the purposes of the appeal.
The case against Avery consists of circumstantial evidence and his own admission. The prosecution produced evidence of the following: Avery's wife had separated from him and had started divorce proceedings. Avery was on parole from a former conviction. He had been directed by his parole officer to observe the order of the court in the divorce proceedings not to visit his wife. His wife resided with her mother at an isolated place in the country known as Neal Ranch in Harbinson Canyon, San Diego county. On the morning of April 11, 1949, the women were found dead at Neal Ranch; they had died from shotgun wounds. The women had been last seen alive about 7:45 p. m. the preceding evening. On that evening Avery had procured some twelve-gauge shotgun shells and at about 8:20 p. m. had gone to the vicinity of Neal Ranch in a taxicab. A shotgun was kept on the ranch. In the early morning of April 11, 1949, about 12:30 a. m. Avery visited a woman friend in Los Angeles and told her and her companion that he had killed his wife and his mother-in-law with the shotgun kept on the ranch. He said he had gone to the ranch four days before and had hidden the gun; that he had returned the previous evening, obtained the gun, and shot the women. Later that morning Avery was driving his mother-in-law's automobile an automobile that was kept on the Neal ranch. He accidentally ran the car off the road. A California Highway Patrolman, responding to notice of the accident, found a loaded twelve-gauge shotgun in the car and five unused twelve-gauge shells. After his arrest Avery voluntarily told a captain in the sheriff's office that he had killed the two women. Three empty twelve-gauge shells were found hear the bodies. Ballistic tests identified one cartridge as having been fired from the shotgun found in the car. Tests for the other two shells were inconclusive. The shotgun shells found near the bodies, in the car and in the shotgun were of the same brands that Avery had procured the night before the women were found dead.
At the trial Avery testified that he had visited his wife on the evening of April 10th because she had requested him to do so; that he found the two bodies when he arrived; and that he fled the scene in his mother-in-law's car rather than report to the police because he had violated his parole in being there and felt he was in a suspicious position. He denied that he had told his friend in Los Angeles, or her companion, or the officer that he had killed the women. He denied obtaining shotgun shells. He testified that he and his wife were on amicable relations; that his wife was divorcing him as part of a pre-arranged agreement that she could do so if his criminal record became embarrassing to her; that he was on friendly terms with his mother-in-law; and that he had never had violent arguments with either his wife or mother-in-law. The jury resolved the conflict in the evidence in favor of the prosecution.
On the appeal it is contended that the trial court erred in its ruling that Captain A. B. Mason's testimony was proper rebuttal evidence. Mason testified in rebuttal for the people that Avery had confessed to him in the sheriff's office. It is argued that the prosecution intentionally withheld this testimony from its case in chief in order to produce it on rebuttal and surprise the defendant after he had testified. It is asserted that the law prohibits such tactical maneuvering in a criminal trial.
The practice of allowing the district attorney to withhold a part of his case in chief and to offer it after the defense had closed was properly condemned in People v. Rodriguez, 58 Cal.App.2d 415, at page 419, 136 P.2d 626. While the order of proof rests in the sound discretion of the trial court, Penal Code sections 1093, subd. 4, 1094, an abuse of that discretion might well result from such practice. However, in this case Avery was permitted to take the stand in answer to the testimony claimed to have been erroneously admitted out of order and the testimony involved matters within his own personal knowledge. Under these circumstances it cannot be said that the ruling put him to such disadvantage as to require a reversal.
It is urged that the testimony of Ray Bolton on behalf of the people was also improper rebuttal evidence. In the prosecution's case-in-chief Mr. Sutton testified that he gave Avery some shotgun shells. Avery denied this when he testified on his own behalf. Bolton, called in rebuttal, testified that he heard Avery ask Sutton for the shells. Although his testimony might properly have been part of the prosecution's case in chief, it was allowable as additional evidence upon a point put into dispute by Avery's testimony. See 6 Wigmore on Evidence, 3d Ed., p. 516.
As a further argument it is contended that Bolton's testimony should have been excluded as being incompetent since he stated that he could not positively identify Avery as the man who asked Sutton for the shells. Bolton testified that he observed the incident about which he testified. His testimony, therefore, was not incompetent under section 1845 of the Code of Civil Procedure. The uncertainty of his recollection or his lack of positiveness about the identity of the persons involved went to the weight and not to the competency of this evidence. People v. Rolfe, 61 Cal. 540; People v. Harris, 87 Cal.App.2d 818, 824, 198 P.2d 60.
Prejudicial misconduct is charged against the trial court when the judge said (in commenting on the admissibility of Bolton's testimony): 'He (Bolton)...
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