People v. Kellogg

SHENK, J.

The defendant was charged with the murder of Curtis William Hupp on June 9, 1935, in the county of Fresno, and with a prior conviction in January, 1933, in the same county, of second degree burglary, a felony, for which he served a term of imprisonment. He entered pleas of not guilty and not guilty by reason of insanity to the homicide charge, but admitted the prior conviction. He subsequently withdrew his plea of not guilty by reason of insanity. He was convicted of murder of the first degree without recommendation. From the judgment imposing the death penalty and from the order denying his motion for a new trial he has appealed.

The deceased, Hupp, a white man, was last seen alive on Sunday, June 9, 1935, in the company of the defendant, a negro of about 21 years- of age. On the afternoon of that day the defendant drove Hupp in the former’s Essex automobile twice to the home of Hupp’s father-in-law, about three

[450]

miles northwest of Fresno, where Hupp’s wife was residing. On the first trip Hupp’s wife was not at home, but on the second trip Hupp saw and conversed with his wife. There is evidence from which the jury could believe that at that time Hupp had money on his person consisting of silver and a roll of bills at least one of which was of the denomination of ten dollars. About eight days later officers inspected the farmhouse where the defendant lived with his father and sister. They found evidence that blood on the floor of the living room, kitchen, back porch and on the ground in the rear of the house had been partially cleaned away, and that a rug or piece of carpet, a man’s hat and a gunny sack had been burned on the ground across the driveway from the house. The defendant was questioned and made five separate statements, three of which were taken down by a phonographic reporter and transcribed. All of these statements appear to have been voluntarily and freely given and without any promise of immunity. It also appears that at all times when he was examined he was fully advised of his rights and that his statements might be used against him. The three written statements were introduced in evidence. In the first the defendant related that when he came into his house alone on the afternoon on Sunday, June 9th, he saw a large cat getting at the meat on the kitchen stove; that he chased the cat around the kitchen, bedroom and living room, and killed it with a stick or bat; that the cat bled profusely and that he carried it by the tail to the rear of the house and wrapped it in burlap, put it in the back of the Essex automobile, and took it to and threw it into an irrigation ditch at Haynes Avenue and Belmont near the city of Fresno. He admitted, however, that he told his sister that he had had a fight with a man; that his sister assisted him in washing the floors and removing blood in and outside of the house, and told him to burn a blood-stained rug, which he did. There was blood on the Essex, and one of the rear side windows was broken. This was explained by the defendant’s statement that before he arrived home he drove an intoxicated man to Chinatown, and that as he turned a corner the man bumped his head against the window, breaking it, and that blood from the cuts dripped on the car.