People v. Cullen, Cr. 5172

• Decision Date: 27 July 1951
• Docket Number: Cr. 5172
• Parties: PEOPLE v. CULLEN.
• Court: California Supreme Court

Page 1

234 P.2d 1

37 Cal.2d 614

PEOPLE v. CULLEN.

Cr. 5172.

Supreme Court of California.

July 27, 1951.

Rehearing Denied Aug. 23, 1951.

J. David Hennigan, Riverside, and Robert M. Wiley, Hemet, for appellant.

Fred N. Howser and Edmund G. Brown, Atty. Gen., Elizabeth Miller, Deputy Atty. Gen., William O. Mackey, District Atty., and Ray T. Sullivan, Jr. Asst. District Atty., Riverside, for respondent.

SHENK, Justice.

The defendant was tried by a jury and found guilty on two counts of murder in the first degree without recommendation. The death penalty was imposed and this automatic appeal followed. There was no motion for a new trial.

By indictment the defendant was charged with the murder of his wife, Mary Cullen, and of her father, Daniel T. Boyer, on or about January 3, 1949, in Riverside county. The indictment also alleged two prior convictions, assault with a deadly weapon and counterfeiting. The indictment was returned on March 1, 1950, and the defendant was arraigned on March 6th. He was then present without counsel and the public defender was appointed to represent him. A motion to dismiss the indictment on the ground that the defendant was denied a speedy trial was denied. The defendant pleaded not guilty and admitted the alleged prior convictions. April 25, 1950, was designated as the date when the trial should commence. In the interim the defendant moved for a change of place of trial to the county of Fresno on the ground that the people of Riverside County were so prejudiced against him that a fair and impartial trial could not be had in that county. The motion was denied. At the defendant's request another attorney was associated in his behalf with the public defender.

On May 2, 1950, after examination of the veniremen, the defendant challenged the entire panel and renewed his motion for change of venue. The challenge was disallowed and the motion denied. After a protracted trial the case was submitted to the jury on the instructions of the court at 6:51 p. m. of July 21, 1950. The jury returned the verdicts at 12:30 a. m. of July 22nd.

The record discloses the following: On August 17, 1948, the defendant, then about 61 years of age, and Mary Cullen who was about 57, were married in Yuma, Arizona. They lived in the defendant's cabin on the west bank of the Colorado River in a sparsely settled region of Riverside county about three miles from the town of Blythe. Mary had been previously married and owned a home in Colton which she rented after her marriage to the defendant. She owned real property in San Bernardino and owned but had sold real property in Yucaipa. She took with her to the home near Blythe rather complete household furniture, furnishings and appliances. She had three grown sons, Frank, Al, and William Patton, who lived in Southern California. She had three sisters including Sophie Patton and Bessie Hart. These relatives visited and corresponded with her frequently. In December, 1948, Mary's father, Daniel T. Boyer, about 81 years of age, went to live with the Cullens. He was a War Veteran and received a monthly pension check of $120.

Sometime in December 1948 Mary Cullen began preparations for leaving Blythe and returning to her Colton residence. She made arrangements for a furniture dealer to buy some and to remove other appliances and items of furniture to Colton. She packed her belongings preparatory to hauling them in her car which she had reconditioned for the journey. She wrote to her son William about December 29th saying she did not 'want anything from him only to get away', and again on the 31st that as soon as she could sell she was 'coming down', and that she had asked the tenants for possession of her house in Colton by February 1st. Her son Al and sister Sophie also received letters written the same day. They did not hear from or see her thereafter. Mary Cullen and her father were seen the last times at the Cullen home on January 2, 1949, at 12:30 p. m. by a neighbor who called after she had observed the defendant depart for Blythe, and in the afternoon about three. Their disappearance was complete and there has been no trace of them either alive or dead.

The defendant was employed at a cafe in Blythe and his shift commenced about noon. He usually drove to town with Mary and her father about ten in the morning, and returned before departing for work. He was not observed to make his customary morning trip on Monday, January 3, 1949, but departed for his employment as usual. On that day he presented to the bank in Blythe for payment and collected the proceeds of Boyer's pension check of $120 endorsed with the names 'Daniel T. Boyer' and 'Ray Cullen.'

At 10:30 a. m. on Tuesday, January 4th, men from the sheriff's office took a boat on a routine patrol of the river. They passed the Cullen place and saw no activity, but about a quarter of a mile below they observed and unoccupied boat near the California bank right side up and stopped by a piece of driftwood, but they did not examine it further. About that time the defendant entered the office of a real estate broker whom he had previously consulted about selling his place on the river. The defendant told the broker that his wife and her father had drowned when they were out in a boat trying to get a duck which they had shot that morning while the defendant was working around the place; that he had heard the motor sputter and after a few minutes looked to see what they were doing and that he didn't see them any more. He said he had been trying to locate them and offered $100 to anyone who found them. The broker said it was not necessary, that all he had to do was to call the sheriff's office. About noon the defendant appeared at the sheriff's office and asked where he could get a boat to look for his wife and her father who had disappeared that morning; that the last he had seen of them they were drifting down the river and he was certain they would drown if he could not get help at once. He was told that a boat had gone downstream and would probably overtake them and tow them to a landing. On his return to Blythe he reported to a neighbor that Mary Cullen had shot a duck and with her father had gone out in a boat and he was afraid something had happened to them. About six o'clock on the morning of either Tuesday or Wednesday the defendant appeared in his red 'pick-up' truck at a service station. His shoes and the bottom of his trousers were muddied. He said he guessed his wife had drowned; that she had shot a couple of ducks the evening before and had gone with her father in a boat to pick them up; that he had not been able to find the deputy sheriff. About three o'clock on the afternoon of January 4th two men who were looking for the missing people found the Cullen boat a quarter mile downstream ten feet from the bank with sixteen feet of chain attached partly tangled in a fallen mesquite tree. There were twenty or thirty gallons of water in the board and an old hat belonging to Boyer. The gas valve was shut off. The boat was of a light but safe type with a motor which with the gas shut off would run about thirty seconds on the gasoline in the carburetor. Mary Cullen was a good swimmer.

On the night of January 4th the defendant telephoned William Patton in San Bernardino and reported that his mother and Boyer were lost in the river and that the sheriff's office had boats out looking for them. Six relative and friends arrived that night. There was a light in the house but the defendant delayed a few minutes before answering their call. Everything in the house was neat and clean. Mary Cullen's and Boyer's possessions were packed, but not the defendant's. A .22-410 over and-under gun that William had given to his mother was standing in a corner. He broke the gun and saw that the .410 barrel was loaded and that the .22 barrel was empty. William took off his shoes to lie on the davenport and stepped on a rug which wet the sole of his foot. Al Patton noticed another wet rug. The defendant explained that Mary had washed the rugs and they had frozen. Boyer's watch, which he usually wore, was on the buffet. The next morning they opened the ice-box and saw only some mildewed food and eggs. During the night the defendant was busy at intervals outside the house, and just before daybreak for about a half hour. On being questioned he reported that he had picked up Boyer's pension check at the general delivery window and that Boyer had cashed the check himself when the defendant took him into town on Monday. Later, on the 6th, he said that Boyer was too sick to go to town but had endorsed the check and that he (the defendant) had cashed it. The evidence justifies the conclusion that the defendant forged Boyer's name by the endorsement. That fact was established on the conviction of the defendant of such forgery as hereinafter related.

After daylight on the 5th the visiting party examined the boat and used it to search the river. They also hired an airplane to view the territory. The defendant aided in these searches. The party left the Cullen home on the sixth at the suggestion of the sheriff's office after complaint by the defendant that they were stealing his papers, but they continued to search the area. On January 27th fresh footprints were found after a rain. They led from the house to some brush and returned. About 150 yards from the house a freshly dug hole about three feet in diameter had been filled in, and the tracks led to another similar recently filled in hole about 50 feet distant. On the 29th with the aid of a deputy sheriff they dug into the holes for about for feet finding the earth mixed with twigs, leaves and recently severed roots. On that day Mr. Boyhtari, a neighbor who had been hired by the defendant as a watchman during this period, handed to the deputy and Eastern Star ring and another ring which resembled rings owned by Mary Cullen. The defendant had said that Mary was wearing her rings...