People v. Davis

Citation309 P.2d 1,48 Cal.2d 241
Decision Date29 March 1957
Docket NumberCr. 5881
CourtCalifornia Supreme Court
PartiesThe PEOPLE of the State of California, Plaintiff and Respondent, v. John Hackley DAVIS and Billy Gene Morse, Defendants and Appellants.

Harry M. Umann, Forno & Umann, Los Angeles, William Strong, Beverly Hills, Joseph A. Ball, Clarence S. Hunt, Long Beach, Grant B. Cooper and Ned R. Nelsen, Los Angeles, for appellants.

Edmund G. Brown, Atty. Gen., William E. James, Deputy Atty. Gen., S. Ernest Roll, Dist. Atty., Adolph Alexander, Chief Deputy Dist. Atty., Los Angeles, Lynn D. Compton and Gordon W. Jacobson, Deputy Dist. Attys., Long Beach, for respondent.

SHENK, Justice.

The appeals in this case are from judgments imposing the death penalty and from orders denying motions for a new trial.

Lynn v. Feaster, night clerk in a Long Beach liquor store, was killed on the morning of December 23, 1953. He had been shot the mouth, apparently about midnight. His body was lying near the open cash register drawer and his revolver, still fully loaded, was found near his head. He had a habit of reaching for his gun during a hold-up, and in prior hold-ups had killed three men and captured others. The lethal weapon was never found. No one witnessed the shooting. Nothing was found on the premises which would connect the defendants with the homicide.

Later on police officials investigated certain check forgeries in the Los Angeles area and discovered evidence to the effect that these defendants had jointly participated in forging and passing checks on the Budwalt Engineering Company on October 30, 1953; that defendant Davis had subsequently passed other Budwalt checks, including one on the night of December 22, 1953, and that shortly thereafter both men had fled the area, Davis going to the northern part of the state and Morse going to St. Louis, Missouri. Information was given to the police by Darrell Davis, the sixteen year old son of defendant Davis, that he had been out with the defendants on the night in question; that the defendants had gone into this liquor store in Long Beach about midnight, and that after he and his father returned home he overheard his father tell a Mrs. Rondon that he and defendant Morse had gone into the store for the purpose of cashing checks; that the clerk 'didn't go for it' and they decided to rob him, and that Morse had then pulled a gun and shot the clerk in the mouth. Mrs. Rondon's version of Davis' statements to her that night was somewhat different, mainly to the effect that Davis had said that as he was going into a liquor store he saw a man who looked like Bill shoot the clerk in the mouth. The defendants were charged with first degree murder. Each entered a plea of not guilty. The sole defense was an alibi. A motion by the defendant Morse for a separate trial was denied. The jury returned verdicts finding the defendants guilty of murder in the first degree and the death penalty was imposed. Motions for new trial and to reduce the penalty to life imprisonment were denied. Separate appeals were taken.

The defendants urge that the evidence was insufficient to support the verdicts; that illegally obtained evidence was improperly admitted; that errors occurred in the admission of evidence and in giving certain instructions; that there was prejudicial misconduct on the part of the prosecuting attorneys; that the trial court abused its discretion in not ordering separate trials; that by reason of prejudicial misconduct of counsel for Davis at the close of the trial and in his argument to the jury both defendants were denied a fair trial, and that the court abused its discretion in denying motions for new trial based upon the grounds set forth in section 1181 of the Penal Code and upon the further ground of newly-discovered evidence as to the mental illness of counsel for Davis during and after the trial. Davis was represented by other counsel on the last two days of the trial and on his motion for a new trial. He is also represented by other counsel on this appeal.

Throughout the six weeks of trial it was the theory of the prosecution that these defendants had engaged in a conspiracy to forge checks; that this conspiracy existed on the night of the homicide; that it was in pursuance of this conspiracy that the defendants had entered the Long Beach liquor store on the night of December 22, 1953, and that the killing which resulted was either with malice aforethought or it had occurred during an attempt to perpetrate a robbery, Pen.Code, § 211, or a burglary (entry with intent to commit a felony, forgery, Pen.Code, §§ 17, 459, 473). It was the theory of the defense that the alleged conspiracy did not exist and, as stated, that neither defendant was present at the scene of the homicide.

The extra-judicial statements testified to by Darrell and Mrs. Rondon were admitted initially only as to the defendant Davis. Darrell Davis first testified as a witness for the prosecution. Later he stated that he desired to change his testimony; that much of his earlier testimony had been the result of suggestions made to him by the police officers; that it was not the result of his independent recollection, and that he now desired to testify as a witness for his father. As to the conflicting testimony of Darrell Davis the jury might have accepted a portion of his testimony and disbelieved the remainder. People v. Crooker, 47 Cal.2d 348, 303 P.2d 753; People v. Hill, 126, Cal.App.2d 378, 380, 272 P.2d 113; People v. Dragoo, 121 Cal.App.2d 322, 324, 263 P.2d 90. It cannot be said that the testimony of Darrell was inherently improbable. It was for the jury to determine its weight. However, in view of the nature and character of the testimony of this witness, and that as to other witnesses the evidence was conflicting, it should not be held that the evidence was so conclusive in favor of the prosecution as to deprive the defendants of a re-evaluation of the factual situation on a new trial. In such event three are other questions presented which should receive consideration.

Both defendants urge that certain items of evidence were obtained by illegal search and seizure. The circumstances of the search were as follows. On September 3, 1955, Inspectors Bennett and Wiggins of the Long Beach Police Department went to the trailer court in Salt Lake City where the defendant Davis was then living. They were accompanied by Detective Orencole of the Salt Lake City Police Department, and he participated in the arrest of Davis. They had reason so believe that Davis had committed the felonies of forgery and murder. They met Davis near his trailer and told him he was under arrest. He readily admitted that he had forged checks in California, stated that he was willing to go back to California with the officers and answer charges in connection therewith, and that he would tell them anything they wanted to know. He was friendly and cooperative, invited them to come inside the trailer with him, and offered to tell them where to find anything they wanted. At his direction they searched the trailer for two checks protectors and found them. They then took him to the Salt Lake City jail where he remained in custody until his return to California. The following day Officer Bennett visited Davis at the jail. Davis asked him: 'Did you get that book of checks?' Bennett answered 'No.' Davis told him to look on the floor under the bottom drawer of the sink. The officers returned to the trailer. From the cooperative and friendly attitude of Davis and from his offer to get anything they wanted from the trailer or to tell them where it was, and from his remarks that he didn't want his trailer torn up, they testified that they believed Davis had given them complete permission to make an orderly search of the trailer. Under a sofa in the trailer they found a blank envelope, a letter purportedly written by defendant Morse, and a lint-covered copy of the Los Angeles Mirror of December 23, 1953, which had been folded to an inside page containing an account of the Feaster killing. The court determined that Davis had led the officers to believe that he had given permission to search the trailer and that the search was lawful. The evidence supports that conclusion. Having been made pursuant to the permission given the search was lawful and the evidence was properly admissible. People v. Burke, 47 Cal.2d 45, 301 P.2d 241; People v. Michael, 45 Cal.2d 751, 753-754, 290 P.2d 852; People v. Gorg, 45 Cal.2d 776, 783, 291 P.2d 469; People v. Stewart, 144 Cal.App.2d 555, 301 P.2d 301; People v. Lujan, 141 Cal.App.2d 143, 296 P.2d 93.

It is contended that the court erred in admitting evidence of accusatory statements and of the conduct and replies of the defendants with reference to questions propounded to them by police officers prior to the trial. Each defendant was then separately questioned. The court properly limited the evidence as to the defendant concerned. People v. Leary, 28 Cal.2d 727, 734, 172 P.2d 34. Davis complains that this evidence as to him was inadmissible because the questioning took place while he was in police custody. Such custody does not of itself make the evidence inadmissible. People v. Simmons, 28 Cal.2d 699, 716, 172 P.2d 18; People v. Amaya, 134 Cal. 531, 536, 66 P. 794. However it is a circumstance which may be taken into consideration by the court in the first instance in determining its admissibility and by the jury in determining its weight. Accusatory statements and the responses thereto are admissible under a well-recognized exception to the hearsay rule. As stated in the People v. Davis, 43 Cal.2d 661, 670, 276 P.2d 801, 805, 'If the accused person expressly admits the truth of the accusatory statement, both the statement and answer may be admitted. If the accused person expressly denies the accusatory statement, there is no admission. If the accused makes an evasive or...

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