People v. Dessauer

• Decision Date: 07 March 1952
• Docket Number: Cr. 5269
• Citation: 38 Cal.2d 547,241 P.2d 238
• Court: California Supreme Court
• Parties: PEOPLE v. DESSAUER.

Page 238

241 P.2d 238

38 Cal.2d 547

PEOPLE v. DESSAUER.

Cr. 5269.

Supreme Court of California, in Bank.

March 7, 1952.

Rehearing Denied March 31, 1952.

Morris Lavine, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., Stanford D. Herlick, Deputy Atty. Gen., for respondent.

CARTER, Justice.

Defendant pleaded not guilty and not guilty by reason of insanity to a charge of murder. After trial by the court sitting without a jury he was found sane and guilty of murder of the first degree and sentenced to death. His motion for a new trial was denied. The case is here on automatic appeal from the judgment and order denying the new trial.

Defendant, 28 years of age, and Libby Bershad, the victim of the homicide, had been living together as husband and wife since June, 1950, without legal sanction. Apparently one source of their income for a living embraced various activities, such as prostitution by Libby, bad check passing and the 'badger' game, wherein she would entice a man into their living quarters and while they were in a compromising situation, defendant, posing as her husband, would enter demanding monetary satisfaction.

According to defendant's testimony in court, he and Libby left their place of abode in Hollywood to do some shopping about seven in the morning on April 2, 1951. After articles of apparel were purchased for Libby with cash and bad checks, they returned to Hollywood in defendant's car arriving about two in the afternoon. They stopped in front of a bank and Libby gave him a check to cash. He entered the bank to cash the check, but knowing it would not be paid, he got 'cold feet' and returned to the car, taking a position in the rear seat, Libby being in front, where a discussion ensued in which he told her why he did not attempt to pass the check, and she told him he should not have been afraid. They did not have an argument or quarrel. He owned a gun which he had placed on the floor in front of the back seat of the car. While she was facing forward, he held the gun about eight inches from the back of her head and shot four times, causing her death. He then left the car intending to surrender to the authorities. Not finding an officer he attended a theater for about an hour. He went to a restaurant where he made some notes on blank checks, and about eight in the evening called the police. They came to the restaurant and took him into custody. He denied he had any intent to kill Libby before the shots were fired or that he purchased the gun to kill her. He said he shot her because she was in trouble and would eventually be imprisoned; he also said he had purchased the gun at Libby's suggestion for protection and to use in the 'badger' games.

In a statement made to the officers, defendant stated that Libby and he had discussed suicide because they had nothing for which to live and she had attempted it several times; that he first decided to kill Libby about a month before the homicide 'because she told me that life, as it was, wasn't worth living, she wasn't having a very good time, and neither was I, it was rough and unpleasant, and we saw no end in sight, a happy end'; because they were unhappy by reason of lack of money; that he purchased the gun for the 'specific reason' of killing her; that he carried his plans to conclusion on the day of the homicide; and that he put the gun in his pocket on the morning of that day before they left their home with the thought of killing her.

Contrary to defendant's contention the evidence is adequate to establish first degree murder. His statement to the officers shows that he purchased the gun intending to kill Libby and carried out that intent. Clearly, there is sufficient evidence to show that murder was perpetrated by a 'willful, deliberate, and premeditated killing'. Penal Code, § 189. Defendant seems to think that because he said his motive was to have her die while she was happy the element of premeditation was eliminated. This does not necessarily follow, but even if it did, the court could have disbelieved that evidence. The killing could be found to be malicious, because '* * * malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow-creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.' Penal Code, § 188. Moreover, the establishment of a motive for the commission of a homicide is not indispensable to support a conviction. People v. Isby, 30 Cal.2d 879, 186 P.2d 405; 13 Cal.Jur. 685.

Further in this connection defendant urges that the statements of defendant to the officers could not be used to show the premeditation and deliberation sufficient to establish the crime of murder of the first degree; and that such must be proved by other evidence. If he is speaking of proof of the corpus delicti, there was adequate evidence aside from his extrajudicial statements to establish it. It will be recalled that there is evidence that he had the gun in the back of his car and when he returned to the car from the bank he entered the back seat rather than the front seat where Libby was seated. After a conversation with her and with no apparent provocation he aimed the gun at the back of her head and shot her four times. That is sufficient to indicate an intent to kill and proof of the corpus delicti aside from his extrajudicial statements. See People v. Corrales, 34 Cal.2d 426, 210 P.2d 843; People v. Mehaffey, 32 Cal.2d 535, 197 P.2d 12; People v. Stroble, 36 Cal.2d 615, 226 P.2d 330. If he means that his statements cannot be used in support of the proof of deliberation and premeditation, and hence, first degree murder, he cites no authority so holding. His statements together with the other evidence clearly established deliberation and premeditation. See People v. Briggs, 20 Cal.2d 42, 123 P.2d 433. In People v. Howard, 211 Cal. 322, 295 P. 333, 71 A.L.R. 1385, relied upon by him there were no facts in the extrajudicial statement from which premeditation could be inferred. In People v. Thomas, 25 Cal.2d 880, 156 P.2d 7, the court was pointing out the closeness of the case and hence the necessity for correct instructions on deliberation and premeditation. The admissions there made and other evidence are not comparable to this case.

Under a claim of denial of due process of law, defendant makes various contentions that the state's case was based on the transcript of the testimony taken at the preliminary hearing, and as to the sanity issue, on reports, rather than testimony in court, by alienists, containing sordid accounts of defendant's sex life, and that there was no confrontation of witnesses against him. Defendant was represented by counsel at the preliminary hearing and witnesses were cross-examined. He and his counsel waived a trial by jury on both this issue of guilt and insanity. His counsel at the opening of the trial stipulated that 'the People's case may be submitted to the Court on the testimony taken at the preliminary examination; that the Court may read the transcript of that testimony to the same force and effect as though those witnesses were here, sworn and testified, the defendant waiving his right to further cross-examination of those witnesses and waiving his right to be confronted by those witnesses, and any stipulations entered into at the preliminary hearing may be deemed entered into at this proceeding, and any exhibits received at the preliminary hearing may be received and marked as exhibits here.' The use of doctor's reports was also stipulated, as will more fully appear later herein. The right to be confronted by witnesses, whether assured by Constitution or statute, may be waived, and a trial may be had on the transcript of the evidence taken at the preliminary hearing on stipulation by defendant and his counsel, People v. Wallin, 34 Cal.2d 777, 215 P.2d 1, or by the latter's stipulation, at least when made in defendant's presence. People v. Romero, 100 Cal.App.2d 352, 223 P.2d 511; People v. Young, 100 Cal.App.2d 488, 224 P.2d 46. It follows that the right to confront the doctors was also properly waived. Insofar as the admissibility of the reports is concerned that cannot be raised in the face of the stipulation. A waiver or failure to object to the admission of evidence precludes objection on appeal. 8 Cal.Jur. 500 et seq. In any event no prejudice has been shown. See...