People v. Merkouris, Cr. 5745

Citation46 Cal.2d 540,297 P.2d 999
Decision Date25 May 1956
Docket NumberCr. 5745
CourtUnited States State Supreme Court (California)
PartiesThe PEOPLE of the State of California, Plaintiff and Respondent, v. James MERKOURIS, Defendant and Appellant.

Morris Lavine and P. Basil Lambros, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., and Elizabeth Miller, Deputy Atty. Gen., for respondent.

CARTER, Justice.

Defendant, James Merkouris, was charged by information 1 with the murder of Despine Forbes, his former wife. He pleaded not guilty, and not guilty by reason of insanity. 2 The jury returned a verdict of first degree murder, without recommendation, based entirely upon circumstantial evidence. Defendant's motion for a new trial was denied and judgment was thereafter pronounced and the death penalty imposed. The appeal is automatic. Pen.Code, § 1239(b).

Defendant and Despine were married in Michigan in 1944. They moved to Los Angeles where they separated in February, 1945. Defendant divorced Despine in Michigan in May, 1945. Despine was married to Robert Forbes in September, 1946, in Los Angeles. Robert, a former police officer, and Despine went into the ceramics business at 5956 West Boulevard in Los Angeles.

In the summer of 1948, Inspector Wood of the United States Post Office, received a telephone call from a man who identified himself as Robert Forbes. Inspector Wood testified that the person identifying himself as Robert Forbes made a complaint involving a violation of postal regulations as a result of which he went to the ceramics shop and interviewed Robert Forbes. Forbes directed Inspector Wood to go to the home of Despine's mother where he picked up three letters in envelopes. The envelopes were postmarked at Los Angeles and two of them were addressed to Mr. Forbes and one to Mrs. Forbes; the letters were signed 'Jim Merkouris' or 'Jim Merkery.' The letters accused Mrs. Forbes of being a sexual degenerate and told Mr. Forbes not to worry about it because he would not be around long. As a result of the action taken, defendant was indicted in Michigan for sending obscene matter through the mails, pleaded guilty, was fined $150 and placed on probation for two years. After the statute of limitations had run in 1951, Inspector Wood destroyed the letters. Inspector Wood testified from his recollection of the matter.

Another officer testified that Forbes had told him he was trying to get a permit to carry a gun because Despine's 'ex-husband' had been telephoning them and writing letters and that he was afraid of the man.

In 1953, defendant and one Jerry Pappos ran a restaurant in Detroit, Michigan for about three weeks. During that time, Mr. Pappos went to the restaurant one morning and found a box with two guns in the bottom of the cigarette case. One of the guns had a cylinder on it similar to that on a Colt .38, but they were bigger. When he asked defendant about the guns, defendant said they belonged to a friend of his. Mr. Pappos told the defendant to get rid of them and defendant said 'soon I get the guy I get them out.' The guns disappeared shortly thereafter. When the business was broken up, Mr. Pappos bought defendant's interest by buying defendant a car in his, Pappos', name, and making the payments thereon. The car was a black 1953 Pontiac hard-top.

The record shows that defendant, using the name 'Jerry Pappas' registered at a hotel in Los Angeles on September 3, 1954; that he was driving a black 1950 Pontiac with Michigan license plates. Defendant checked out of the hotel on September 8, 1954.

Customarily, Robert Forbes took Despine to the ceramics shop and then took their daughter to the home of Despine's mother where she was cared for during the day. Almost every day, Robert would park his car on West Fifty-Ninth Place, go down the alley and into the back of the ceramics shop. On the morning of September 20th, a witness testified that he saw Robert open a window of the ceramics shop at about 9:10 or 9:15; at from 9:15 to 9:20 on the same morning, Robert took the daughter to Despine's mother's home where he was given a bowl of mush to take to Despine. Sometime between 9:00 and 10:00 the morning of the 20th, Robert was seen to park his car on Fifty-Ninth Place and go toward the back of it as if to go down the alley.

Mr. and Mrs. Miner operated a service station at 5924 West Boulevard in Los Angeles and lived in a house on an adjoining lot. The service station was open from 6:30 a. m. until 7:00 p. m. every day except Sunday. On September 7, 1954, the Miners noticed a muddy Pontiac parked in the vicinity of a telephone pole on West Boulevard facing south in the direction of Fifty-Ninth Place between nine and ten in the morning; a man was sitting behind the wheel in the car. On the same day, at about 4:00 or 4:30 p. m., the Miners noticed the same car parked in the same place with the same man behind the wheel. Mr. Miner was able to read the word 'Michigan' on the license plate. On each of the days from September 7th through the 18th, with the exception of Sunday, the 12th, the Miners saw the same car, with what appeared to be the same man, parked either by the telephone pole on West Boulevard or on Fifty-Ninth Place by the stop sign, headed east toward West Boulevard. The man's head, when he was parked on West Boulevard, appeared to the Miners to be facing south on West Boulevard and at times he appeared to be looking at the service station. When the man was parket on Fifty-Ninth Place west of West Boulevard, he appeared to Mrs. Miner to be looking in the direction of the service station or straight ahead. On September 14, 1954, Mr. Miner became suspicious and called the car to the attention of a sergeant of the Police Department. The sergeant, who was in sport clothes, off duty, and a customer of the Miners, drove around behind the suspect car and ascertained that the license plate read AA 6930 Michigan. He wrote the number on the back of an envelope and gave it to the Miners. The sergeant could not positively identify the defendant as the man he had seen in the car. At one time, Mrs. Miner saw the man out of the car walking north toward a flower shop on the corner of Fifty-Ninth Place. Mrs. Miner identified the defendant as the man in the car. The Miners were both familiar with the ceramics shop owned by the Forbes and knew both Despine and Robert.

About 9:15 a. m., September 20, 1954, Mr. Miner saw the same Pontiac, with the same man in it, going west on Fifty-Ninth Place. After making the boulevard stop on West Boulevard, the car turned south and passed from his sight; within five minutes thereafter he saw the man who had been driving the Pontiac walking around the apartment house and then east on Fifty-Ninth Place toward the alley. The man turned his head and he and Mr. Miner stared at each other; the man turned to his right at the alley and disappeared into the alley. The man was identified by Mr. Miner as the defendant.

About 9:15 a. m., September 20, 1954, Mrs. Simons was hanging up clothes in an areaway between the ceramics shop and an apartment house when she saw a strange man enter the areaway from West Boulevard and go into the first entryway (Simons' entry) in the building; she saw him lean out of the entryway and look toward her; when she started toward him he ran out of the west entrance the way he had come. Mrs. Simons identified defendant from a picture of him and said that she recognized the lower part of his face since the man she had seen in the areaway had his hat pulled down over his eyes. Sometime during the morning, she heard four thumping, thudding sounds coming from within the ceramics shop; the sounds were different from those she had previously heard coming from the shop.

Around 9:45 a. m., September 20, 1954, Paul Yonadi left his apartment at 3550 West Fifty-Ninth Place and backed his car out of the garage which was across the areaway from the rear of the ceramics shop into the alley. He got out of the car to close the garage door. At this time, he saw a man, whom he identified as the defendant, come out of the wooden gate at the rear of the ceramics shop. Mr. Yonadi and the man looked at each other; the man then walked southward down the alley without turning around.

At 11:25 a. m., September 20, 1954, a sheriff's patrol officer noted in his daily log that he had seen a 1952 Pontiac coach with a Michigan License plate AA-69-30 standing without a driver, or occupant, about 250 yards from the beach area at Point Dume which is about 12 miles from Santa Monica. The officer searched the car but found no registration or identification. He looked for someone having a possible connection with the car but found no one. The driving time between the ceramics shop and Point Dume was approximately 49 minutes.

Between 11:15 and 11:30 a. m., September 20, 1954, a salesman who made regular calls at the ceramics shop with bread, found the front door of the shop open. He rang several times but no one answered. He opened the door leading from the display room to the room in back thereof and saw the body of Mr. Forbes lying on the floor. The police were called, and when they arrived to investigate they found the body of Mrs. Forbes in a room adjoining that in which Mr. Forbes' body was found. Both Mr. and Mrs. Forbes had been killed by shots fired at either extremely close range or by holding the gun in contact with the head. A Woman's jpurse was hanging on a clothes rack; it contained some cash, checks, and a money order. A telephone in the room was off the hook.

Sergeant Forbes of the Los Angeles Police Department was a brother of the deceased Forbes. He remembered that Despine's former husband had been from Michigan and obtained pictures of him from Despine's mother. These pictures were shown to the Miners and to Mrs. Simons, and Mr. Yonadi who all identified the defendant as the man they had seen that day.

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