People v. Santo

• Citation: 43 Cal.2d 319,273 P.2d 249
• Decision Date: 11 August 1954
• Docket Number: Cr. 5564
• Court: California Supreme Court
• Parties: PEOPLE v. SANTO et al.

Page 249

273 P.2d 249

43 Cal.2d 319

PEOPLE v. SANTO et al.

Cr. 5564.

Supreme Court of California, In Bank.

Aug. 11, 1954.

Rehearing Denied Sept. 8, 1954.

Ward Sullivan and Al Matthews, Los Angeles, under appointment by the Supreme Court, for appellants.

Edmund G. Brown, Atty. Gen., William V. O'Connor, Chief Dep. Atty. Gen., S. Ernest Roll, Dist. Atty. Adolph Alexander, Asst. Dist. Atty., Jere J. Sullivan, Robert Wheeler and J. Miller Leavy, Dep. Dist. Attys., Los Angeles, for respondent.

SCHAUER, Justice.

John Santo, Emmett Perkins, and Barbara Graham (hereinafter sometimes called defendants) appeal from judgments imposing the death penalty after a jury found them guilty of murder of the first degree and made no recommendation as to punishment, and from orders denying their motions for new trial. Defendants and John True were jointly charged by indictment in Count I with conspiracy to violate sections 211 (robbery), 459 (burglary) and 18m (murder) of the Penal Code, and in Count II with murder. On motion of the People a severance was granted as to the two counts, and the cause proceeded to trial as to Count II (murder) only. Count I was ordered off calendar. Count II was dismissed as to John True and he testified on behalf of the People.

Defendants' main contention is that the testimony of the principal prosecution witness, the accomplice John True, was insufficiently corroborated. We have concluded, for the reasons hereinafter elucidated, that this and other contentions of defendants are without merit.

Mrs. Mabel Monahan, victim of the homicide, had been the mother-in-law of Tutor Scherer, a Las Vegas gambler. Mrs. Monahan lived in Burbank, California. She was 64 years old, crippled, and lived alone. From the evening of March 8, 1953, until the afternoon of March 9 she had a house guest. When the guest left, Mrs. Monahan's house was neat. At about 6:00 p. m. on March 9 the guest spoke with Mrs. Monahan on the telephone. So far as the evidence discloses, this was the last time Mrs. Monahan communicated with anyone other than the defendants.

On the morning of March 11, 1953, Mrs. Monahan's gardener, when he came to work, discovered the front door of the house ajar and telephoned the police. The interior of the house was greatly disarranged; apparently it had been ransacked; and there were spots of blood on the walls of the living room and halls. The body of Mrs. Monahan was on the floor, partially in a closet, with her head on a pillowcase which was torn and saturated with blood. Mrs. Monahan's hands were tied behind her. A strip of cloth, knotted but not tightened, was around her neck. The cause of death was asphyxia due to strangulation. On Mrs. Monahan's face and head were severe cuts and bruises which could have been inflicted with the muzzle of a revolver. In a closet among other purses was a purse which contained $474 and jewelry.

About March 12 or 14 William Upshaw and Baxter Shorter were arrested in connection with the investigation of the Monahan killing. They were released after being held in custody a few days. On March 31 Shorter, with his attorney, met with several law enforcement officers and made a statement which was taken down by a stenographer. About April 14 Shorter disappeared.

On April 11 John True was arrested in Grass Valley and informed that Shorter had implicated him in the killing. He was held in the Burbank jail until April 16 and was released after he had repeatedly denied any participation in the offense and disclaimed acquaintance with any defendant except Santo. True was re-arrested on June 2 in San Francisco and agreed to testify as a witness for the People in return for an agreement by a Los Angeles deputy district attorney that if True told the truth he would not be prosecuted for any offense in Los Angeles County.

True's testimony was substantially as follows: True became acquainted with Santo in Grass Valley in January, 1952. In early March True mentioned to Santo that he intended to go to Los Angeles to inquire about a job; Santo said that he was going to Los Angeles on business; and True accepted Santo's invitation to ride with him. As they drove to Los Angeles Santo told True that he was making the trip because of 'a gold deal * * *. He said he had access to placer gold.'

True and Santo stayed at a motel in El Monte for two days. While they were there Santo introduced True to Perkins. Santo and True then moved to another motel, the Sunlight Motel in El Monte, where they stayed for one night. On March 7, 1953, they moved to the La Bonita Motel, also in El Monte. Shorter and Upshaw visited Santo there; True met them, then left the motel while they talked with Santo. Thereafter Santo told True that Shorter was a 'box man' and explained that this meant that Shorter was experienced in 'blowing a safe, opening a safe.'

On the morning of March 9 Perkins brought Mrs. Graham to the La Bonita Motel. The three defendants and True drove in Santo's car to a 'drive-in stand' where they met Upshaw and Shorter. Santo got in the car with Upshaw and Shorter and conversed with them. True heard only a part of the conversation; he heard Upshaw say, 'I don't want no part of it'; Shorter said that he did not 'like the idea of a woman going along' and Santo replied, 'I will assure you this one is all right in the event that we need her to make an entrance.' Santo returned to his own car, said that Upshaw 'has backed completely out,' and asked, 'What do you think?' Perkins and Mrs. Graham replied, 'Whatever you want to do.' True said, 'Whatever you folks want to do.' Santo returned to Shorter's car after telling Perkins to follow Shorter. True heard no one say where they were going. The two cars drove past the Monahan home. Santo pointed to the house and Perkins said, 'That must be the place.' Thereafter Santo told Shorter to meet defendants and True that evening at a designated parking lot.

After True and Santo returned to the motel, True asked Santo 'what the score was.' Santo said that Tutor Scherer had brought money from Las Vegas a 'hundred thousand dollars at a time' and hidden it in the Monahan house. True said that he would 'go * * * along on the job' if Santo could assure him that no one would be hurt.

About 6:00 p. m. on March 9 defendants, True, and Shorter met at the parking lot. True, the only member of the party without gloves, purchased a pair. Perkins gave True a gun and told him not to come back without it. The party drove to Mrs. Monahan's house. Santo told Mrs. Graham to 'ring the doorbell * * * and if there was anyone home, to detain them until we got there.' Mrs. Graham entered the house. True followed her and saw her striking Mrs. Monahan on the face and head with a gun. Mrs. Monahan collapsed and Mrs. Graham put a pillow slip over her head. Meanwhile, Santo, Perkins, and Shorter had entered the house. Perkins tied Mrs. Monahan's hands behind her and dragged her to a closet. Santo tied a strip of cloth around her face. Defendants, True, and Shorter searched the house for fifteen or twenty minutes; they found no safe, moeny, or jewels. They left the house together; True and the defendants returned to the La Bonita Motel; and about midnight Santo and True left for Grass Valley.

The following evidence was introduced by the People in corroboration of True's testimony:

William Upshaw testified as follows: He met Santo in Auburn in February , 1953, and in Los Angeles on March 6 in connection with 'a gold transaction.' On the morning of March 7 Upshaw took Shorter to meet Santo at the La Bonita Motel. There Upshaw and Shorter were introduced to True. True left the motel while the other three talked about the purchase of gold. On March 9 Shorter and Upshaw met defendants and True at the 'drive-in.' Santo got in Shorter's car, which was parked very close to Santo's car. Shorter told Santo that he 'decided he wasn't going to go' and Upshaw 'wasn't going to go' because a 'record downtown' indicated that they 'had previously cased the place, or one of Tutor Scherer's places.' Santo replied that 'he was definitely going to go through with it * * * (W)e are going to go in the place tonight.' Shorter said that he 'didn't want to have anything to do with women anyway,' and Santo said, 'You don't have to worry about her because she knows what the hell will happen if she ever opens her mouth.' Shorter then said, 'Well, if I am going to get the blame for it, I might as well go for the money.' Santo returned to his car, told Perkins, Mrs. Graham, and True that Shorter 'had decided to go' but that Upshaw 'definitely wasn't going to go.' Santo asked Perkins, Mrs. Graham, and True what they wished to do, and they all agreed to accompany him. Santo returned to Shorter's car, said 'we'll drive by the place,' told Perkins, Mrs. Graham, and True to follow, directed Shorter to the Monahan house, and pointed at it as they drove past. Santo arranged to meet Shorter at a parking lot that afternoon, then returned to the other defendants and True.

Samuel Sirianni, a policeman, gave the following testimony, which was offered and received only against Mrs. Graham to show consciousness of guilt and admissions against interest: Sirianni had three conversations with Mrs. Graham while she was in jail awaiting trial. He represented to her that he intended to help her account for her whereabouts on the night of the murder. During one of these conversations Mrs. Graham admitted that she was with Santo, Perkins, and True on March 9 from 8:00 p. m. until midnight. She also said, 'Without you as an alibi, 'I'm doomed to the gas chamber.' Sirianni asked when the murder took place; Mrs. Graham replied that it was on March 9; 'Actually,' she said, 'it was the morning of the 10th. " Sirianni inquired several times about Shorter; Mrs. Graham said, 'He is well taken care of * * *. Yes, been done away with. I assure you he won't be at the trial.' In reply to Sirianni's question whether she...