People v. Zilbauer, Cr. 5593

• Citation: 44 Cal.2d 43,279 P.2d 534
• Decision Date: 01 February 1955
• Docket Number: Cr. 5593
• Court: United States State Supreme Court (California)
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Authony ZILBAUER, Defendant and Appellant.

Page 534

279 P.2d 534

44 Cal.2d 43

The PEOPLE of the State of California, Plaintiff and Respondent, v. Authony ZILBAUER, Defendant and Appellant.

Cr. 5593.

Supreme Court of California, In Bank.

Feb. 1, 1955.

Rehearing Denied March 3, 1955.

Thomas Higgins, Jr., Los Angeles, under appointment by the Supreme Court for appellant.

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

SHENK, Justice.

The defendant was charged by information in Count I with the kidnaping of Belle Brooks on November 20, 1953, with intent and for the purpose of committing robbery, and in Count II with the murder of Andrew Kmiec on November 21, 1953. The information also alleged that the defendant was armed with a deadly weapon at the time of each offense and that he had previously been convicted of the felonies of Uttering and Publishing Forged Instrument to Defraud in Ohio in 1922, Robbery in Ohio in 1935, Auto Stealing and Uttering Check with Intent to Defraud in Ohio in 1946, and with having served a term of imprisonment for each offense. On arraignment he denied the prior convictions and pleaded not guilty and not guilty by reason of insanity. At the trial, by leave of court, he withdrew his insanity plea and admitted the prior convictions. The jury returned a verdict of guilty as charged in Count I. It also found that he was armed and that he inflicted bodily harm upon the victim. By its verdict on this count the jury recommended that he be imprisoned for life without possibility of parole.

The jury also found that the defendant was guilty of murder as charged in Count II of the information and that he was armed at the time of the homicide. The offense was found to be murder of the first degree and no recommendation was made as to punishment. The death penalty was imposed. A motion for a new trial was denied. This is an appeal from the judgments of conviction and from the order denying the motion for a new trial.

The defendant is about 53 years of age. He is machinist and machine tool worker. He married his second wife, Geraldine, in the state of Ohio a short time before they came to California, which was about 1951. In February, 1953, under the name of Anthony A. Barr he purchased a revolver in Huntington Park. For some reason best known to themselves he and Geraldine were remarried in Las Vegas, Nevada, on October 7, 1953. The defendant was there married under the name of James A. Bauer. At that time their home was in Norwalk in Orange County. Not long after they returned to their home the defendant gave up his job and was short of funds. He began to examine newspaper advertisements offering for sale automobiles and other personal property. These advertisements were usually anonymous but gave the telephone numbers of the proposed sellers. By telephone the defendant made appointments to see the property offered for sale. By this means he gained access to the homes or apartments of the proposed sellers. This he did on several occasions, giving his name as Bauer, Bower, Barr, Barger and perhaps others. One of the places he thus gained access to was the apartment of Mrs. Belle Brooks whose advertisement offered for sale 'My lovely ranch mink coat. Will sac. $950. Also 6-skin Russian Sable Stole,' giving her telephone number. This advertisement appeared in local papers on the morning of November 20, 1953. The defendant called Mrs. Brooks on the telephone, gave his name as 'Barger' and made an appointment to meet her at her apartment a little later on with reference to her advertised furs.

About 1:30 that afternoon he appeared at her apartment and after a few minutes of conversation he flourished a gun at her and ordered her to go to another room in the apartment where he compelled her to lie on a bed face down. He taped her wrists and ankles and tied a kitchen towel around her mouth. He then committed upon her body the infamous crime against nature, a felony denounced by section 286 of the Penal Code. The victim begged the defendant to take the furs and leave. He replied, 'I ain't going until you tell me where the diamonds are, or your jewels.' After committing the act the defendant cut the telephone wires leading to the apartment, put the stole and other personal property of Mrs. Brooks in a suitcase, threw the mink coat over his arm and departed, saying to Mrs. Brooks: 'If you get off that bed for the next fifteen minutes, I have someone standing outside that has been watching you.' Mrs. Brooks later found missing, in addition to the furs and the suitcase, a wrist watch, two cigarette cases, a compact and a bracelet. The mink coat was later sold by the defendant for $300. Mrs. Brooks' watch, two cigarette cases, the bracelet and the compact were found in the defendant's home by a deputy sheriff on November 30, 1953. Her stole and suitcase and the revolver which the defendant had purchased in Huntington Park were recovered by the Police Department in St. Louis, Missouri, after the defendant was taken into custody in that city. The foregoing, in brief, constitutes the factual basis upon which the jury found the defendant guilty on the first count. Although the defendant denied participation in the activities attributed to him by various witnesses who testified concerning interviews and conversations with him in response to newspaper advertisements, including Mrs. Brooks, he does not attack the judgment on the first count on any ground whatsoever.

The defendant's conviction of the charges contained in Count II finds abundant support in evidence from which the jury reasonably might have believed that the following events took place: The defendant had been informed by his wife that a man driving a Mercury automobile with Indiana license plates had forcibly raped her. The defendant did not know the name of the man nor where to locate him but had considered taking some action. He discovered in his wife's purse a slip of paper containing a telephone number. This same telephone number came to his attention while he was engaged in the above mentioned practice of examining newspaper advertisements for the sale of personal property. Singularly enough it appeared in an advertisement offering for sale a Mercury automobile with Indiana license plates. The defendant had been unable to obtain California license plates for his own car, having lost the 'papers' thereon. He particularly desired to obtain 'out of state' plates and the advertised automobile would enable him to accomplish that purpose. He called the telephone number named in the advertisement several times seeking to ascertain the identity of the owner of the Mercury car but the man who answered would not divulge the information. Finally, on November 20, 1953, when the defendant again called that number, a person who answered the telephone identified himself as Andrew Kmiec. The defendant stated that he wanted to see Kmiec personally about the affair he had had with the defendant's wife. A meeting was arranged, to be at the Biltmore Hotel in the late afternoon of the following day.

About four o'clock in the afternoon of that day he left home in his automobile and drove to Los Angeles where he parked his car in a Pershing Square garage. About 5:15 he met Kmiec and they talked a few minutes. The defendant told Kmiec that he wanted to get this family affair straightened out. They went to Kmiec's car which was parked nearby, and Kmiec introduced the defendant to a Miss McCormick who was in the car. Kmiec had asked her to accompany him and had told her that he was going to see a person interested in the purchase of the car. The defendant asked why he had brought Miss McCormick along, apparently suspicious that Kmiec had brought her along as a witness. Kmiec replied that she knew nothing about the wife's affair and requested the defendant not to say anything about it in her presence, and that he would drop her off later on. The defendant directed Kmiec to drive the car to Whittier so that his wife could see it, and to drive out Sixth Street. Kmiec proceeded as directed. All three sat in the front seat with Miss McCormick in the center. On the way there was some conversation about the sale of the car and caravan charges but nothing about the wife's affair. On the way a stop was made for gasoline, and they then proceeded toward Whittier. Suddenly the defendant ordered Kmiec to stop the car. He flourished a gun and pointed it at Kmiec and ordered him to get into the back seat. Kmiec pleaded for his life, offering the defendant his watch or the car. He also offered to drive home to obtain money and give it to him if the defendant would let him go. The defendant asked Miss McCormick if she could drive and when she said she could, he ordered her to do so. She drove until he ordered her to stop at a lonely spot with oil wells nearby but no houses. Defendant continued to hold the gun on Kmiec and stated that he was trying to make up his mind whether to let him go. At that Kmiec gagged, put his hands up to his mouth, and then, just as Kmiec dropped his hands, defendant shot him in the chest. As Kmiec fell toward the front seat of the convertible a second shot was fired and Miss McCormick jumped out of the car. She heard a third shot as she ran. When she returned with deputy sheriffs a short time later Kmiec's car was gone and his lifeless body was found lying beside the road.

The car was found the next morning at Carl's drive-in at Soto and Olympic Streets in Los Angeles, where it had been abandoned by the defendant after he had taken off the Indiana license plates and had placed California plates upon it. Miss McCormick's purse and coat were still in the car. There was blood on the back seat and on the front seat, particularly on the floor near the door on the driver's side. It was ascertained that Kmiec's death was caused by hemorrhage from a bullet wound in the chest. There was also a bullet wound in his back and one in his cheek.

The...