People v. Hendricks

CRAIG, Acting P. J.

Appeals were taken by each of the defendants upon the same record from judgments based upon verdicts of a jury finding them guilty of murder in the first degree and fixing the penalty as imprisonment in the penitentiary for life, and from orders denying their motions for a new trial.

It.is contended that the evidence was insufficient to justify the verdicts and judgments, but we are impelled by a careful review of the same to hold this contention untenable and not requiring a detailed recital of the testimony. The body of an unclothed man was discovered by a road foreman in a canyon in Los Angeles County, bearing wounds upon either side of the head, and a necktie tightly drawn about the neck. It lay in a ditch which had been excavated on the preceding day, and was identified as that of a man who had been in company with the defendants at a store and drinking resort for a period of two weeks to and including the day last mentioned, by the name of Robert J. Erwin. At the request of the proprietor that Erwin be taken home and placed in bed the defendants departed with him, an automobile horn was heard, and thereafter the defendants returned to the store without him. He was not again seen there alive. It appeared that Hendricks on the following day stored Schwartz’s automobile in a garage which he locked, wherein it was washed by the former, and from which it was not for some time removed. Blood stains were found on the running-board and on a cushion of the automobile, and upon a suit of clothes and overcoat belonging to Hendricks. Clothing of the deceased was discovered at a distance of two and one-half miles from the body, and all jewelry, money and personal effects had been removed therefrom. A ring and other articles similar to those previously in the possession of the deceased were seen in

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Hendricks’ possession soon afterward, and it was testified that he later stated, “I have sold my ring.” Each of the defendants, according to numerous Avitnesses, confessed to the latter that Erwin had been struck by one with a wrench and rendered unconscious, placed upon the ground in the canyon and strangled by the other; that he “remained quiet”. Further pursuing of the evidence, through about a thousand pages of the transcript, we think unnecessary, and the appellants have indicated no substantial detail in which it was deficient.

One Morgan, called on behalf of the defendants from the county jail, where he Avas awaiting trial upon a charge of homicide, was advised by the trial court as to his constitutional rights; and his counsel, the public defender, strenuously objected to examination of the witness and instructed him not to ansAver questions.' Upon his expression of willingness to testify in the instant case and of a desire to have counsel for appellant Schwartz substituted as his attorney, the public defender requested that he be permitted to withdraw, AA’hich withdrawal and substitution were referred to another department of the superior court. Thereupon the witness returned, the jury were recalled to the courtroom, and he was examined at length by the defendants’ counsel. The testimony of Morgan was to the effect that he and a confederate other than either of the defendants had at the time in question taken in their automobile a man who expired, that they removed his clothing, confiscated his money and jewelry, and left the body in said canyon. This evidence was at best the basis of a possible doubt for consideration by the jury. The trial court, at the instance of the defendants, subsequently properly ordered stricken all testimony as to the facts and nature of the charges upon Avhich the witness was being held and admonished the jury to disregard it. Thereafter and during the examination of another witness the defendants introduced evidence of the same facts, but it is here insisted that its previous admission occurred during cross-examination by the People, and that it constituted prejudicial error requiring a reversal of the judgments. It is not suggested as to how, in such a case, any legal effect of such evidence upon the rights of the appellants should be characterized as vindicative or preju