People v. Niccoli

• Decision Date: 13 March 1951
• Citation: 102 Cal.App.2d 814,228 P.2d 827
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE v. NICCOLI. Civ. 17596.

Page 827

228 P.2d 827

102 Cal.App.2d 814

PEOPLE v. NICCOLI.

Civ. 17596.

District Court of Appeal, Second District, Division 1, California.

March 13, 1951.

Rehearing Denied April 9, 1951.

Hearing Denied May 10, 1951.

Vernon L. Ferguson, Samuel L. Rummel, Los Angeles, Thomas B. Sawyer, San Pedro, for appellant.

Harold W. Kennedy, County Counsel, John D. Maharg, Deputy County Counsel, Los Angeles, for respondent.

WHITE, Presiding Justice.

The above-named defendant had been indicted in a criminal action and undertaking of bail was filed by appellant National Automobile and Casualty Insurance Company, a corporation. When the cause was called for trial the defendant failed to appear and the court declared forfeited the undertaking of bail. On December 28, 1949, the court made and entered its order denying appellant's motion to set aside said forfeiture (Penal Code, sec. 1305). It is from the last-named order of December 28, 1949 refusing to set aside the forfeiture that this appeal is taken.

The record reveals that Michael Cohen and twelve other individuals, including defendant herein, were indicted by the Grand Jury of Los Angeles County on April 12, 1949 for the crime of conspiracy to violate sections 245, 211, and 182, subd. 5 of the Penal Code. Subsequently, all the defendants who went to trial were acquitted.

So far as shown by the record, defendant Niccoli was last seen alive on the afternoon of September 2, 1949 at the apartment of two ladies, Pat Briar and Caroline Shaw, friends of his. On that occasion he stated to them that he was going to the airport to meet some friends. Pat Briar asked the defendant if she could accompany him. He inquired as to 'How long will it take you to get dressed?' According to the testimony of Pat Briar she 'started to get dressed, and he looked at his watch and he said, 'Gee, I haven't time, I'll have to go to the airport and I'll call you from the airport after I meet my friends'.' After telling Miss Briar to 'Go ahead and keep dressing, and to have Caroline dress--the two of you can have dinner with me and my friends. I will call you from the airport', defendant departed at about 4:30 p.m.

On the evening of September 3, 1949, Miss Da Loune David, a friend of the defendant, was present at a dinner party in the home of Michael Cohen. Thinking it 'rather strange' that she had not heard from defendant Niccoli who was in the habit of telephoning her, Miss David made inquiry of others present at the Cohen home as to whether they had talked with defendant Niccoli, and as to whether he was coming to the dinner. Receiving negative answers, the witness acting, as she testified, on 'simply a hunch' went to the airport at approximately 3:15 a. m. on the morning of September 4, 1949. She was familiar with defendant Niccoli's automobile, having operated it a number of times. Upon searching the auto-park adjacent to the airport the witness came upon the automobile of the defendant. The windows were down and the ignition keys were missing. The witness thereupon telephoned Mr. Cohen and went home. The parking ticket found upon the vehicle by Miss David indicated that it entered the parking lot at 5:53 p. m., September 2, 1949.

On September 21, 1949, a laborer employed by the City of Los Angeles to clean out catch basins in connection with storm drain sewers, found a keyring and keys in a catch basin at 43d Street and Normandie Avenue, some distance from the airport auto park at which the machine was parked. One of the working crew noticed Niccoli's name on the tag attached to the keyring and delivered the keys to the sheriff's office. One of the keys unlocked a piece of luggage found in Niccoli's apartment, another unlocked the ignition of his automobile and opened the door thereof, while another key unlocked the glove compartment. At the place where they were found the keys were not visible from the street until the cover was pulled off the catch basin. They were three or four feet below the surface, and it is a reasonable assumption, as urged by appellant, that the keys did not get into the catch basin by accident but were placed there for concealment.

There was testimony that defendant Niccoli had been in Los Angeles since January 1949; that he was devoted to his mother who resided with her daughter in Cleveland, Ohio. He regularly sent $60 a month to his mother, the last check for this amount having been received by her some two weeks before his disappearance. He telephoned his mother on four occasions after his arrival in Los Angeles and was much concerned about his mother's health. There was evidence that both to his family as well as to friends defendant Niccoli had stated a lack of fear on his part as to the outcome of his trial under the aforesaid indictment, 'that he was not worried too much about it'. There was evidence that during the pendency of the indictment, Niccoli was present, with others, as a guest of Michael Cohen at a cafe located in unincorporated territory commonly known as the 'county strip', which 'strip' adjoined the City of Los Angeles, upon which occasion the party was attacked from ambush. In this attack, one of Cohen's guests, named Neddie Herbert, was killed, while Cohen and other members of the party received serious gunshot wounds. There was testimony that Niccoli was very fond of Cohen and that the latter was a guarantor upon the former's $50,000 bail bond. There was also testimony that Niccoli intended to go into the cigarette business in Los Angeles and that because of his own lack of finances was attempting to raise money to finance the business.

It is undisputed in the evidence that defendant Niccoli was in impecunious circumstances and that the $60 he was sending his mother each month was a drain upon him. That he borrowed money from his friends and associates from time to time. That he was continually complaining about being 'broke'. The record reflects that Niccoli was indebted to a finance company in Cleveland, Ohio, in connection with the purchase of his automobile; that his payments thereon amounted to $92.48 per month. That on September 6, 1949, some four days after the defendant's disappearance, the finance company received from Niccoli an installment payment of $92.48. While no letter of transmittal accompanied said remittance, it was established that the money order in question was obtained by defendant Niccoli.

It was also established that on September 7, 1949, defendant Niccoli's apartment was found to be in good order. A jar of pennies was sitting on a cabinet, razor blades were in the bathroom cabinet as well as his shaving cream, tooth paste and a toothbrush. Wearing apparel in the way of suits, coats, shoes, underwear, ties and handkerchiefs were found in the apart ment. A box of money containing silver amounting to $65.20 was found in a hatbox.

Without narrating in detail the efforts made to locate defendant Niccoli following his disappearance, suffice it to say that an intensive search for him was made by law enforcement agencies, friends, and appellant insurance company, all to no avail.

At the hearing in the superior court the People offered no evidence to prove that defendant Niccoli was alive subsequent to September 2, 1949, and relied solely upon the premise that the burden of proving death was upon appellant and that such burden had not been met.

The sole ground of this appeal is that the evidence produced in the superior court in support of the motion to set aside the forfeiture of the bail bond conclusively...