People v. Polk

• Decision Date: 31 March 1964
• Docket Number: 7513,Cr. 7356
• Citation: 37 Cal.Rptr. 753,61 Cal.2d 217,390 P.2d 641
• Court: California Supreme Court
• Parties: , 390 P.2d 641 The PEOPLE, Plaintiff and Respondent, v. Ronald Howard POLK, George Anthony Gregg, and Avery Matthews, Defendants and Appellants

Page 753

37 Cal.Rptr. 753

61 Cal.2d 217, 390 P.2d 641

The PEOPLE, Plaintiff and Respondent, v. Ronald Howard POLK, George Anthony Gregg, and Avery Matthews, Defendants and Appellants

Cr. 7356, 7513.

Supreme Court of California, In Bank.

March 31, 1964.

Rehearing Denied April 29, 1964.

Claude O. Allen, Oakland, Irving C. Sugarman, Richmond, and Ransome M. Smith, Fresno, under appointment by the Supreme Court, for defendants and appellants.

Stanley Mosk, Atty. Gen., Doris H. Maier, Asst. Atty. Gen., and Edsel W. Haws, Deputy Atty. Gen., for plaintiff and respondent.

PER CURIAM.

By jury verdicts defendants Polk, Gregg, and Matthews were found guilty of conspiracy to kidnap for the purpose of robbery, and Polk and Gregg were found guilty of first degree murder. On the latter count the jury fixed the penalty at death, and judgments were entered accordingly. ¹ The appeals of Polk and Gregg are automatic (Pen.Code, § 1239, subd. (b)); that of Matthews is by notice duly filed.

By amended indictment defendants Polk, Gregg and Matthews, and one Jack Blonde, were charged in Count I with conspiring together on or about March 31, 1962, to kidnap for the purpose of robbery. As a first overt act it was alleged that defendants robbed William Fambro of a billfold on or about March 31, 1962; as a second overt act it was alleged that defendants and Blonde robbed Neil Schill of a billfold on or about May 18, 1962.

Count II of the indictment charged defendants with kidnaping Fambro for the purpose of robbery, and that the victim suffered bodily harm. Court III charged defendants with murdering Fambro. Count IV charged Matthews and Blonde with kidnaping Schill for the purpose of robbery, and that the victim suffered bodily harm.

Defendants' motions to set aside the indictment (Pen.Code, § 995) were denied, and each entered a plea of not guilty. Before the defendants had 'gone into their defense' the indictment as against Blonde ² was dismissed pursuant to Penal Code, § 1099, and he became a witness for the prosecution. Prior to empaneling the jury Counts II and IV of the indictment were dismissed as to all defendants therein charged on motion of the district attorney (Pen.Code, § 1385), and on the 13th day of trial the murder charge as against Matthews was dismissed.

On the remaining counts the jury found the defendants guilty as charged, determined the offense in Count III to be murder in the first degree, and fixed the penalty therefor at death. Motions by Polk and Gregg for new trial or for reduction of the penalty were heard and denied.

The evidence establishes the perpetration of a series of brutal crimes kidnapings, assaults with a deadly weapon, armed robberies, and murder with mutilation of the victim committed in concert by these defendants insofar as each has been found guilty of the respective charges. A resume of the evidence follows:

Allen Cade testified that he first met the defendants in November 1961 and saw them occasionally thereafter. On the evening of March 30 or 31, 1962, Cade entered a restaurant in Los Angeles called the Dairy Lunch and saw Polk, Gregg and Matthews sitting at the tables. Polk approached him and asked to borrow fifty cents, then said, 'I'm going to make me some money.' When Cade inquired how he was going to do so, Polk said, 'I got the stuff' and lifted up his shirt, revealing a revolver thrust under his belt. Gregg came up and repeated, 'We going to get us some money.' When Cade next saw Gregg, on the second morning following this conversation, Gregg was wearing a white sailor's hat.

During the last part of March 1962 William Fambro, a 20-year-old sailor, had been on leave with his family in Norwalk, California. He was to report to his ship in Bremerton, Washington, on the morning of April 1 or 2. At about 9 p. m. on March 30 his wife left him on Highway 99 beyond San Fernando, where he hoped to catch a ride to his ship. Before leaving he ate a banana sandwich; he was in uniform, including a white sailor's hat, and had about $20 in his wallet.

At 5:45 p. m. on April 2 Fambro's body was discovered down an embankment off Highway 65 in Tulare County. Footprints and other evidence at the scene indicated that two persons had carried the body to the shoulder of the road and thrown it over the embankment. Fambro's wallet was missing, as was his white sailor's hat.

A post-mortem examination showed the cause of death to be three bullet wounds, including one inflicted by a bullet passing through the heart. The pathologist testified that a person receiving the type of wounds sustained by Fambro would not die instantly but might live for several minutes. The bullet holes in the victim's jacket showed powder burns from the muzzle of the weapon; the path of the bullets through the body indicated that all three shots were fired from the same angle. At the time of the examination Fambro had been dead between 48 and 72 hours, and, based on the partially digested condition of the bananas in his stomach, it was the opinion of the pathologist that he had been killed no more than three or four hours after eating them.

The fly of Fambro's trousers had been ripped open and several buttons torn. The victim's penis was missing, hiving been 'rather crudely amputated,' leaving a 'ragged' wound. From the condition of the body, including the amount of blood found in the public area and on the victim's shorts, the pathologist concluded that Fambro had been alive at the time his penis was amputated in such a manner.

Jack Blonde testified that on the evening of May 15 or 16 he met Polk, Gregg and Matthews in the Dairy Lunch. They drove around in a 1953 Mercury, saw a drunk and decided to rob him. Matthews parked the car, Blonde threw the victim to the ground, and Polk 'stomped' him by jumping on his chest with both feet. They took his wallet and watch and drove away. Thereafter they attempted to obtain a gun but were unsuccessful. The following night the four of them went walking, 'looking for another person to rob.' Polk and Gregg walked on one side of the street, Matthews and Blonde on the other. Blonde spotted a 1962 Pontiac station wagon following them, and Matthews told him to 'act like a queen' (i. e., the 'female' partner in a male homosexual relationship). The witness explained that this meant to walk 'swishing' one's buttocks from side to side. The driver of the station wagon, a Mr. Delaney, stopped and picked up Blonde and Matthews. As they entered the car Blonde motioned for Polk and Gregg to follow, but the latter were unable to do so. After driving around in a pretended search for benzedrine, Matthews threw pepper in Delaney's eyes, and Blonde stabbed him four times in the chest. Delaney escaped from the car, but Matthews and Blonde chased him, knocked him down, kicked him several times, and tore his clothes looking for money. They then took his station wagon, returned to the Dairy Lunch and picked up Polk and Gregg, and stole a set of paper license plates for the car. Taking Johnny Keyes with them, the five set out for San Francisco with Matthews driving. First they saw an old man with a cane, and selected him as a viction. Blonde, Polk and Matthews, the latter carrying an iron bar, got out of the car. Polk and Matthews grabbed the old man, the cane and iron bar flew through the air, and the man fell to the ground. The assailants ran back to the car with the victim's wallet and drove on.

Neil Schill, a paratrooper who was the victim of the kidnaping and robbery charged as the second overt act in Count I (conspiracy), testified that after midnight on the morning of May 17, 1962, he was hitchhiking on Highway 99 just north of Bakersfield when he was picked up by a new Pontiac station wagon. On entering the car he first saw only three people, two in the front and one in the middle seat; the driver appeared to be a woman, was wearing a woman's sweater, and was referred to as 'her' by the others. After he got in, Schill heard someone stirring behind him and saw two men in the back seat. A few minutes later they pulled into a gas station to have the car's radiator to serviced, and all but Schill went into an adjoining restaurant. Schill, who had not slept for two days, remained in the car and tried to sleep. In the restaurant it was decided to rob Schill, and Matthews emptied the pepper from a shaker on the table, rolled it in a napkin and put it in his pocket. On returning to the car Matthews and Polk entered the front seat, Gregg and Blonde entered the middle seat on either side of Schill, and Keyes got in the back.

Schill testified that shortly thereafter 'we were driving along about eighty miles an hour and the woman Matthews said, 'Neil, do you know what you can do for me?' And I said, 'No, what?' And he said, 'Well, you can start by taking all your clothes off.' And I said, 'Are you serious?' And at this time Blonde pulled a knife and held it in front of my face and said, 'Yes, she is serious, or else I'm going to cut you up. '' Schill grabbed the blade and twisted it away from Blonde; as he turned to do so, Gregg reached into Schill's back pocket and took his wallet. Then, as Schill described it, 'everyone started to swing at me and kick at me, and I believe Polk had taken some pepper out of the glove compartment and rubbed it in my eyes.' Matthews finally brought the car to a stop, and everyone except Schill scrambled out and took positions around the outside of the car, trying to keep all the doors shut but one. Matthews stood at the open door with a beer bottle in his hand, saying, 'Get the lead pipe.' As Schill got out Matthews said to him, 'Take your clothes off or else I'm going to smash you in the face.' Schill lunged forward and Matthews hit him in the face with the bottle, breaking off a tooth and badly cutting his mouth. When Schill tried to get up Matthews kicked his feet out from under him. But Schill, bleeding heavily, managed to run across the highway and escape...