People v. Costa

KNIGHT, J.

The defendant, Annibal Costa, and one Jack Sanders were charged jointly with the crime of an assault with a deadly weapon, alleged to have been committed upon the person of James M. Page. Sanders entered a plea of guilty," but Costa stood trial, was found guilty as charged, and has appealed from the judgment of conviction and the order denying his motion for new trial.

Appellant’s conviction was based upon evidence showing that he had aided and abetted in the commission of the crime. Part of such evidence consisted of incriminating admissions amounting to a confession of guilt, made by him to

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Thomas F. Gallagher, a police inspector, the day following the assault, and related to the jury by Gallagher after preliminary proof had been adduced to the effect that the same were made freely and voluntarily, without previous inducement, promise of leniency, and not by reason of duress, intimidation, or threats. As grounds for reversal, appellant contends that despite the preliminary proof mentioned, other evidence was adduced showing that said admissions were obtained from him while he was suffering from the effects of corporal punishment inflicted upon him the day before by J. G. Garbutt, the assistant superintendent of the institution wherein the assault occurred, and that therefore said admissions were not freely and voluntarily made and should have been excluded.

The crime was committed in the Alameda County Detention Home, appellant and Sanders, with other juvenile offenders, being at the time confined therein. Page was superintendent of the home and was assaulted when he entered the corridor of the institution preparatory to giving the inmates thereof their noonday meal, being severely beaten on the head and hands by Sanders with an iron strap hinge which had been wrenched from a bunk in appellant’s cell. Before entering the corridor, Page requested the inmates to go to their cells, which adjoined the corridor. Believing they had done so, he sought to lock the cells from without by working a lever, and thereupon entered the corridor. As he passed through the entrance gate, Sanders, who was concealed near by, struck Page repeatedly with said iron strap hinge, exclaiming, “Lay down or I will murder you.” Although bleeding profusely, Page called for help and Garbutt came to his rescue. Sanders at that time was working the lever to open the cells and appellant was just coming out of his cell but was ordered back by Garbutt. Thereupon Gar-butt, after removing the iron strap hinge with which the assault was made from Sanders’ hip pocket, assisted Page into the visitors’ room, where first aid was rendered. Shortly afterward Page and Garbutt returned to the corridor for the purpose, apparently, of locking Sanders in his cell and of searching the place for dangerous weapons. Garbutt testified that while the search was being made, violence was used on both Sanders and appellant, but he further testified in justification of the use of such violence on appellant (and