People v. Buono

• Decision Date: 14 April 1961
• Docket Number: Cr. 7057
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Victor Francis BUONO, Ernest Neison Murray, John Henry Thwaits and Wilford Wells Robearge, Defendants and Appellants.
• Court: California Court of Appeals Court of Appeals

Page 604

12 Cal.Rptr. 604

191 Cal.App.2d 203

PEOPLE of the State of California, Plaintiff and Respondent, v. Victor Francis BUONO, Ernest Neison Murray, John Henry Thwaits and Wilford Wells Robearge, Defendants and Appellants.

Cr. 7057.

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

April 14, 1961.

Rehearing Denied May 12, 1961.

Hearing Denied June 6, 1961.

Thomas Whelan, San Diego, and Lawrence William Steinberg, Beverly Hills, for appellants Buono and Murray.

Ellery E. Cuff, Public Defendant, Wilbur F. Littlefield, Richard W. Erskine, Deputy Public Defendants, Los Angeles, for appellant Roberage.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., William B. McKesson, Dist. Atty., Los Angeles County, Los Angeles, William H. Low, Deputy Dist. Atty., San Diego, for respondent.

ASHBURN, Justice.

Buono, Murray, Robearge and Thwaits were convicted by a jury in Los Angeles County of conspiracy to commit robbery and of murder; both crimes were fixed as first degree. Defendants were sentenced to life imprisonment for the murder and the term prescribed by law for the conspiracy, sentences to run concurrently. The killing was committed in an attempt to commit a robbery and hence automatically become murder of the first degree. Pen.Code, § 189. All defendants appealed. Thwaits' appeal was dismissed pursuant to rule 17(a) and the other appeals are now before us upon a single record. Charged also with former felony convictions, Buono admitted four such convictions, Murray two, Thwaits three, and Robearge three.

The conspiracy had as its objective the robbery of Antonio Mirabile, who lived and was killed in San Diego. The homicide was not part of the plan but was incident to a fight that took place during the attempt to rob the victim. The backbone of the prosecution's case was the testimony of Jeanne Horton, who was one of the conspirators but was not indicted as such, having pleaded guilty to an assault with a deadly weapon made upon Mirabile's nephew, Fillipo Acquaro, who resided with him.

Appellants raise in most instances the same claims of error. The first is want of jurisdiction in the Los Angeles court, the argument being that the conspiracy, if one, was formed and the attempted robbery and murder perpetrated in San Diego County. They also assert error in the court's exclusion of proffered evidence concerning the Sicilian organization known as the Mafia, offered by way of suggestion that the Mafia, rather than defendants, caused Mirabile's death. Much is made of rulings which excluded attempted proof of use of narcotics by Jeanne Horton, the state's principal witness. No claim of insufficiency of evidence is asserted except as it is claimed that the testimony of Horton is inherently improbable and that she, an accomplice, is not adequately corroborated as to the connection of the respective appellants with the commission of the crime.

Arguments concerning overt acts and corroboration of the Horton testimony will be considered first. If there was no overt act in Los Angeles county the court had no jurisdiction to try the defendants for conspiracy; if there was no competently established conspiracy there was no jurisdiction to try appellants in Los Angeles county for the murder which occurred in San Diego county. If Horton was not sufficiently corroborated as to the connection of any of the defendants with the crime of conspiracy, the evidence would not support a conviction as to that defendant.

As developed principally by the testimony of Horton the facts appear to be as follows, assuming, as we must, verity in the evidence favorable to respondent.

The murder occurred about 1:00 o'clock on the morning of December 27, 1958. Jeanne Horton resided at the Dawn Hotel in Santa Monica, Thwaits in Torrance, Robearge in Manhattan Beach, all of which cities are in Los Angeles county. Buono and Murray lived at Perris in Riverside county. Mirabile and Acquaro occupied an apartment on the third floor of the Palomar Apartments at Sixth and Maple Streets in San Diego. Horton was on parole after conviction of a felony; she admitted convictions of burglary and possession of narcotics. Her husband recently had been released from State Prison. Sometime in November, 1958, Thwaits came to her apartment with a friend of hers and said he knew her husband. Later he took her to his house in Torrance and on one occasion he and 'Liz' (Elizabeth Kelly) took her to dinner. On one of these visits Thwaits spoke about their being 'broke' and said something was coming up later and if she was interested he would let her know about it. She acquiesced, though he did not then explain further. On December 26, 1958, he telephoned her saying the matter had come up and he would be by and pick her up; also that he did not care to discuss it on the telephone but it was very good and he would explain on his arrival. Horton said all right. Thwaits told her to dress as she had to go through the lobby of an apartment. He arrived about 4:00 p. m. finding her ready and told her they should be back the same night but possibly not; that he did not have time to explain but would do so in the car. In the vehicle was defendant Robearge, commonly known as Sonny. Thwaits made a telephone call and said they were going to San Diego; that they would go there to an apartment and Sonny would go with her. She asked for details and was told that Thwaits could not give them until he met the other people in San Diego. Who are they? That doesn't concern you, we just want you to get into the apartment. They then went to Robearge's house. He came out with a long butcher knife and a roll of tape. Asked why a knife he said 'the mark is an old dago' and guns would not scare him. Next they went to Thwaits' house in Torrance. Liz was there at the time. The three left about 6:00 p. m. in Thwaits' two-tone green Dodge sedan, Thwaits driving. On the trip, immediately after starting, Horton asked what was going to happen and how much was involved; the men did not want to tell her, saying it was so much she would not believe it, anywhere from $50,000 to $150,000; that it would be a simple matter like taking candy from a baby. The split of the money was brought up and Thwaits said the other two men were to get 20 per cent. Horton was surprised because she thought the going rate was 10 per cent to 'finger men.' She said that was too high, but Thwaits replied no, there are two of them and their information is reliable, coming from the victim's ex-bodyguard. Robearge asked about a gun and Thwaits said they would get it down south. Horton asked, 'Why right now' and was told the man they 'were supposed to take' was leaving for Italy within a week; they would have all the details when they got to San Diego and met some other people. The fact that a crime was to be committed was first mentioned in the car in Santa Monica. Thwaits there said that Robearge would go in with Horton on the job; that they would be the ones that did it. Horton testified she did not recall whether robbery was directly mentioned but she assumed that was what it would be; she knew it was robbery or burglary or something and assumed it was robbery; that it would almost have to be that.

Upon arrival in San Diego Thwaits parked his car back of the San Diego Hotel; soon he said he must have missed the people he was supposed to meet. Then he said, 'here he is now.' At Thwaits' suggestion Horton and Robearge went to a coffee shop and waited while he talked to the newly arrived men. In due course Thwaits told them (Horton and Robearge) his car was to follow 'these people' up to a man's apartment. In that car were Buono and Murray who had driven from Perris to the meeting place, with Buono doing the driving. The two cars moved to a point near the apartment house, parked on the other side of the street next to a public park, about 30 feet apart with the Buono car in front. Murray walked back to the Thwaits car, gave the occupants the layout of Mirabile's apartment, told them where the money would be, said that Mirabile had two wallets, one of which contained 'heavy money' and probably on his person; also told about a wall safe which, if still there, was behind a picture. Horton asked how she would get Mirabile to let her in; Murray said he would get the telephone number for her. He went to the Buono car and returned with a number. Who shall I say told me to call? Murray said he would find out. He returned to the Buono car in which Buono was sitting alone. He had been a San Diego policeman and at another time bodyguard for Mirabile. When Murray was there the second time Buono opened the car door, the light came on, he faced Horton and the others and looked at them. This is the only time that Horton saw him. After talking to Buono, Murray returned and said that Horton should mention Wilbur Clark of Las Vegas to Mirabile. Thwaits asked about a gun and Murray said he had it. He asked about the knife and Robearge said they had it. Horton later identified both Murray and Buono. After going over the apartment layout again, Murray returned to the Buono car which soon left and was not seen again by Horton. She and her companions then killed time until midnight. During this period they discussed just how they would go in; Robearge would go up with Horton posing as a friend that was going to drop her off and that she would get him in and he would tell Mirabile they were after the money after they were upstairs in the apartment. They also purchased some clear nail polish to put on their hands to prevent finger prints. Shortly after 12:00 o'clock Horton called Mirabile on the telephone and he agreed to receive her and to open the front door of the building for that purpose. When she arrived he did not answer her summons so she called again in a few minutes. He said he would be right down and let her in. When they got out of the car Robearge handed her the knife which she concealed beneath her...