People v. Whittaker

WOOD, J.

Appellant Whittaker and James Culver were jointly accused of the crime of murdering Ethel Whittaker, wife of appellant. In a separate indictment Whittaker was accused of the crime of assault with a deadly weapon with intent to murder James Culver. The two indictments were consolidated for trial and Culver entered a plea of guilty to the charge of murder. Upon trial a jury found Whit-taker guilty of both charges and he appeals from the judgments pronounced.

Whittaker and his wife were living in an apartment on Alvarado Street in Los Angeles. On the evening of March 16, 1936, Mr. and Mrs. Whittaker left their apartment and returned early in the following morning. Soon after they reached their apartment several shots were heard and Whit-

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taker called the hotel clerk by telephone. The shooting attracted the attention of other residents of the apartment house. One of these, Henry Pailer, coming from his own apartment, met a man leaving the Whittaker apartment whom he later identified as James Culver, a young man of twenty-three years of age, weighing about 140 pounds, about five feet ten inches in height, and with light complexion. Culver passed Pailer in the hallway and ascended the stairs leading toward the roof of the apartment house. Pailer then entered the Whittaker apartment and saw Mrs. Whit-taker upon the floor and Mr. Whittaker standing facing a chiffonier in the apartment, a revolver in his right hand. Upon the arrival of the officers Whittaker told them that when he and his wife returned to their apartment a man had stepped out of a closet with gun in hand and commanded them to give him their money; that the intruder had shot Mrs. Whittaker and that he had fired five shots at the intruder, wounding him but not killing him. Whit-taker described the intruder as being a heavy set man weighing some 200 pounds, with dark complexion and dressed in a gray suit. The intruder was in fact James Culver and he was dressed in a blue suit. The officers went to the rooming house next door, where they found and arrested James Culver, who was suffering from wounds in his right arm and chest. Culver implicated Whittaker in the murder of his wife and in telling the officers of the circumstances of the affair stated to them that he had upon instructions from Whittaker hidden the gun in an old mattress on the roof of the rooming house. The officers recovered the gun from the mattress. Whittaker remained in his apartment until after the officers had apprehended Culver and stated that Culver was not the man who had been in his apartment at the time of the shooting. Whittaker was taken to a sanitarium but was brought back to his apartment, where he then told the officers that he knew of a good place where the gun might have been hidden and indicated the old mattress on the roof of the rooming house. Whittaker led the officers to the mattress and in the dark reached into the slit cut into the side of the mattress where the gun had actually been hidden by Culver.