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On the evening of February 24, 1939,
DeWitt Clinton Cook, 20, a former printer for a Hollywood trade paper,
clubbed to death Russian dancer Anya Sosoyeva, 32, on the campus of Los
Angeles City College. Cook later said in his confession to police, “She
screeched a little, so I hit her some more. Then she only moaned.” She
was found by police around 9:15 p.m.
Sosoyeva had been sexually assaulted
and lived just long enough to give police a partial description of her
assailant. Clues found at the scene, reported the Times,
“consisted mainly of an old pair of shoes retrieved near the scene by a
dog, a pair of gloves, a size 38 blue serge coat and a 30-inch piece of
scantling believed used to bludgeon the unsuspecting girl as she walked
across the campus to attend an evening dramatics class.”
Cook clubbed film studio dancer Delia Bogard, 17, on
March 28 as she was returning home from an evening at the movies near
her Hollywood home, but he was frightened away by her screams before he
could further his attack. A piece of wood similar to the Sosoyeva murder
“scantling” was found nearby. Bogard, suffering from a severe head
injury, was hospitalized for weeks and later moved in with her parents.
On Thursday night, August 24, 1939, Cook clubbed and
raped Myrtle Wagner, 17, a domestic working for Mr. and Mrs. M. W.
Lippman, at their residence in Hollywood as she was crocheting a towel
in the kitchen. Wagner’s head injuries were so severe she had to use a
cane for weeks after the assault. Police patrols were increased in the
Hollywood area by LAPD Homicide Captain Dalton R. Patton and Deputy
Chief Homer B. Cross.
Four nights later Mr. and Mrs. W. F. Warnock were
relaxing at their home on Oakwood Avenue in Hollywood. According to Mrs.
Warnock, “We were going out to play badminton. My husband was in the
front room with our little daughter and our dog. When I finished
dressing in the bedroom I went to the front room to leave but at the
last moment decided to return for a hat. Then I saw a man in a brown
suit in front of the dresser. I screamed. He jumped out of the window
which had been opened. My husband came running but the burglar was gone.”
Cook was arrested by LAPD Sergeants E. L. Berger and A. D. McCoole a
short distance from the Warnock home. An eighteen-inch piece of two-by-four,
a long screwdriver, a pocket knife and several pairs of gloves were
found on Cook. He was also wearing tennis shoes that matched a footprint
left at the scene of the Wagner assault. According to the Times,
police also found at his home a pair of moccasin shoes “whose soles
matched perfectly the unusual pattern found beside Miss Bogard’s
unconscious form.”
Cook confessed on August 29 to the Sosoyeva murder
and the Bogard/Wagner assaults in the presence of LAPD homicide officers
and a representative from the district attorney’s office. After his
confession he had lunch with the officers at a Sunset Boulevard coffee
shop, where he ate a plate of spaghetti, ravioli, spinach and mashed
potatoes. During lunch, Cook estimated that he had committed
approximately three hundred burglaries in two years. After finishing
lunch the group proceeded to the three crime scenes and Cook re-enacted
the clubbings for police and reporters. Cook was then given a physical
and psychiatric exam before spending the night at Central Jail in
downtown Los Angeles.
According to Edward D. Radin in his book 12
Against Crime, de River was involved in Cook’s confession of the
Sosoyeva murder on August 29:
"After examining the suspect, Dr. de River, who has a
flair for well-rounded phrases, told the officers, 'This fellow’s mind
is like a house with the shutters drawn, concealing in its shadows the
mystery of what goes on behind the curtain. Wiry, catlike, he is of
sadistic tendencies, but legally sane and knows right from wrong. He is
the lone-wolf type – a nocturnal prowler who likes to wander in lonely
out-of-the-way places at night.'
"The psychiatrist added that he was certain that the
prisoner was the moonlight attacker. Guided by this opinion, police
resumed their questioning of the youth and he finally admitted the
murder of the pretty dancer and the attacks on the others."
The next day he entered a plea of guilty to four of
the nine felony charges against him. Cook refused, however, to repeat
his confession in court on September 1, and his pleas were set aside for
trial by Superior Judge Clarence L. Kincaid.
Born in Waterloo, Iowa, Cook did not finish high
school; instead, he served eleven months in the Iowa State School for
Boys for petty crime and was paroled. He moved to Los Angeles with his
parents at the age of sixteen; shortly afterward his father was killed
in a car accident. On June 19, 1938, he married Lorraine Levy (his first
cousin) in Tijuana, Mexico, and they had another ceremony at a downtown
Los Angeles wedding chapel in October. His salary as a printer at the
trade paper was twenty-four dollars a week, and he resided with his wife
and his mother, Mrs. Ruby Cook, 45, at 1300 1/2 North Sycamore Avenue in
Los Angeles.
Cook’s trial opened on October 4, 1939, before
Superior Judge Thomas L. Ambrose. Cook was prosecuted by Deputy District
Attorney Ugene U. Blalock, and he was defended by Deputy Public
Defenders Ellery Cuff and William B. Neely. A jury of twelve men was
selected. On October 11 the jury and courtroom watched Cook re-enact on
film the murder of Anya Sosoyeva. As reported by the Times, “He
[Cook] intently watched the screen, working his jaws vigorously on some
chewing gum, as he saw himself demonstrating to officers how he
assertedly struck Miss Sosoyeva on the head...”
On October 13 the jury took only forty minutes to
find Cook guilty. According to the Times,
"The case is considered one of the strangest in
criminal law because there was no defense offered and Cook never once
denied the murder, nor did he himself enter a plea of not guilty....
"The value of sound motion pictures of a defendant
re-enacting a murder, which were shown during this trial for the first
time in the history of California jurisprudence, was pointed out by
members of the jury after they brought in the verdict. Judge Ambrose
declared he questioned the jurors in his chambers to determine how
valuable they thought the pictures were from the standpoint of evidence.
Members of the jury felt that by seeing the re-enactment of the crime in
sound pictures in which Cook answered questions to police about the
murder, they were assisted materially in clearing up several points they
had under discussion, Judge Ambrose said."
Cook was sentenced on October 18 to the gas chamber
at San Quentin. As he was being led away from the courtroom, Cook
“wisecracked” to news photographers: “Oh, let ’em take a picture. It’s
the last one they’ll ever get of me.” On the same day two resolutions
were unanimously adopted by the Police Commission commending LAPD Chief
of Police Arthur C. Hohmann and the officers who had brought Cook “to
justice.” The officers named in the commendation were “Sergts. D. A.
McCoole and Edwin L. Berger, Deputy Chief Homer B. Cross, Capt. C. B.
Horrall, Acting Captain Dalton Patton and Ray Pinker, laboratory expert.”
On October 26, 1939, Cook was transported by train to
San Quentin Prison. His appeal was turned down, and his wife obtained an
annulment on May 24, 1940. Cook pleaded for his life in a letter to
California Governor Olson on July 22:
"If I were older by twenty years, I would perhaps not wish for a
commutation. But I am a young man still. To me, life is life, whether in
a penitentiary or elsewhere. I stand convicted of murder, but I am not a
murderer in my heart. Surely this is the contingency for which the
alternative penalty was prepared. There is no doubt in my mind that when
my term expired, I would emerge a better man in all ways, spiritually,
mentally and physically."
Cook received a temporary reprieve from Governor
Olson on November 25, 1940, and filed for clemency on December 30. He
was denied clemency on January 5, 1941.
On January 31, 1941, DeWitt Clinton Cook was executed
at 10:02 a.m. in the San Quentin gas chamber. According to the
Times, “All night long in his death cell he had played a small
radio, making no attempt to sleep. He ate no breakfast. He told a guard
last night ‘I have made up my mind I have to go; that is all there is to
it.’ ”
"The Sexual
Criminal" by Brian King
Campus Killer
Time.com
Monday, Sep. 11, 1939
A bad place for girls to be at night was the lovely,
leafy campus of Los Angeles City College and the neighborhood around it.
Anya Sosoyeva, 32, a blonde dancer and drama student, was bludgeoned to
death in one of its lanes last February. Bludgeoned, robbed (of 35¢) but
not killed was Delia Bogard, 18, who sometimes danced in L. A. C. C.
plays. Bludgeoned, raped and left to live was Nursemaid Myrtle Wagner,
17. Hammered to death while abed at home was Mrs. Margaret Campbell, 56,
a onetime actress who taught drama at L. A. C. C.
Margaret Campbell's lackwit son confessed that he
killed her, was adjudged insane by two alienists. Last week Los Angeles
police, on mass guard in the Hollywood area, nabbed a bearded, slender
runaway just after a robbery was reported. In his car they found a 2 by
4 bludgeon, at his home shoes which fitted the cast of a footprint near
where Delia Bogard was felled.
De Witt Clinton Cook, 20, a marauding printer who had
learned the fine points of robbery at an Iowa reform school, confessed
that he killed Anya Sosoyeva, struck down Delia Bogard, yielded to "an
uncontrollable impulse" and raped Myrtle Wagner after he had looted her
employer's home.
On his way to the campus to show police and newsmen
how he had worked, he was allowed to visit a barber, get rid of his
beard. Publicity-wise, cinemad Los Angeles prosecutors and police then
had Killer Cook put on an act as fantastic as it was morbid. For
grinding sound cameras (ostensibly at hand to record evidence) a
neighborhood blonde impersonated Anya Sosoyeva.
Clinton Cook stalked the willing stand-in as he had
stalked the dancer, socked her with a roll of paper (see cut), dragged
her to the spot where he had left dying Anya. Next day he pleaded guilty,
later changed his plea to "not guilty" after talking to headline-conscious
Prosecutor Buron Fitts, who will get much publicity at the trial.
[Crim.
No. 4273.
In Bank.
May 20, 1940.]
THE
PEOPLE, Respondent,
v.
DeWITT CLINTON COOK, Appellant.
OPINION
THE COURT.
The defendant herein was
charged with the crime of murder as set forth in the first count of an
indictment that had been returned against him. In the same indictment he
was charged with the commission of other offenses which consisted of two
several counts of assault with a deadly weapon with intent to commit
murder, one count of robbery, one of rape and three several counts of
burglary,--to each of which charges he pleaded guilty. When the case was
called for the taking of evidence by the trial court in the matter of
fixing the degree of the crime of murder, defendant refused to testify.
Thereupon the trial court of its own motion set aside the plea of guilty
to the first count of the indictment and entered a plea of not guilty
thereto on behalf of defendant. After trial was had by a jury on the
charge of murder, defendant was convicted of the crime of murder in the
first degree, without recommendation. Thereafter, a motion for a new
trial was made and denied. Following pronouncement of judgment and the
imposition of the death penalty, this appeal from the judgment and order
denying a new trial was automatically presented to this court. (Sec.
1239, Pen. Code.)
The facts in this case,
which in part were supplied from the confessions and extra-judicial
statements voluntarily made by defendant, appear to be substantially as
hereinafter related.
At approximately 9 o'clock on the evening of February 24, 1939, at the
campus of the Los Angeles City College, defendant, a young man twenty
years of age, struck a young woman named Anya Sosoyeva on the head with
a piece of two-by-four. A few hours after the assault was committed, she
died from the effects of the blow.
In
the evening of the day on which the offense was committed, defendant,
who was married and living with his wife and mother, left his home at
about 7 o'clock, which was the usual time of his departure on occasions
when he worked at night as a printer. However, he did not go to work
that evening but, instead, he went to the campus grounds of the Los
Angeles City College, and looked around the adjoining neighborhood with
a view to burglarizing a house. As he did not
locate a house suitable for that purpose he thereupon decided to seize a
purse instead, and he began to search for some object with which to
strike his intended victim. Underneath a bench which was located beside
a walk leading to the administration building on the campus grounds, he
noticed a piece of two-by-four, which he picked up and carried with him
while he resumed his walk around the neighborhood.
A short time later he returned to the campus grounds and to the vicinity
of the bench. After he had walked back and forth about forty-five
minutes he observed a young woman, who was later identified as Miss
Sosoyeva, coming toward him along the walk. After she had passed him,
proceeding in a direction opposite to that pursued by defendant, he
turned and followed her a few feet and then, wielding the piece of two-by-four
by the use of both hands, he struck her a blow on the head, which caused
her to fall to the ground. Immediately, defendant partly dragged, partly
carried her to a tree--a distance of from eight to fifteen feet from the
paved walk--for the reason, as asserted by defendant, that had she been
left lying where she had fallen she might have been observed if anyone
came along the walk. He attempted to stifle outcries which she made by
placing his hand over her mouth, but as she was "making lots of noise"
he became frightened and fled the scene--without taking her purse,
however,--and made his escape through a portion of the campus grounds
known as the Shakespearian Gardens.
According to the testimony of a police officer, who, shortly after 9
o'clock P. M., was called to the scene of the attack, Miss Sosoyeva was
then seated beside a desk in a room of the administration building. Her
head was cradled in her arms which were lying on the desk. He testified
that there was blood on her face, that she was moaning, and that her
only intelligible words were, "Oh, he hit me."
Soon thereafter, she was removed to an emergency hospital where she
received medical treatment. The doctor and nurse who attended her
testified that at the time of her arrival Miss Sosoyeva was in a semi-conscious
condition; that she was bleeding from her left ear; that there was blood
on her face and head; and that an examination revealed a traumatic
injury to the back of her head. She was then transferred to another
hospital where, as a result of her injuries, she died at about 1:20
o'clock on the following morning.
Before her death she was identified by a
young woman with whom she had shared an apartment which was located near
the college campus. According to the testimony of her roommate, it
appeared that Miss Sosoyeva was about twenty-seven years of age; and
that when she was last seen by the witness at their apartment at
approximately 6:30 P. M., on the evening of the assault, Miss Sosoyeva
was dressing and making preparations for taking part in a theatrical
performance which was to be held that night in the administration
building of the Los Angeles City College.
The testimony of Police Captain D. R. Patton revealed that about 2:30
o'clock on the morning following the assault on and death of Miss
Sosoyeva he visited the portion of the college campus where the attack
had occurred, and on the making of an examination of the ground in that
vicinity, he found leaning against a tree a section of two-by-four, to
one end of which adhered some strands of blonde hair. He also found a
comb, a glove for a man's right hand, which glove was stained with blood,
and several spots of blood on the walk and on the ground a few feet
therefrom. The left glove which was found in the Shakespearian Gardens,
through which defendant had fled after the assault, also was marked with
blood as well as with lipstick stains. On the taking of evidence it
appeared that the blonde hairs found on the piece of two-by-four were of
the same color and texture as the hair of the deceased, and that the
lipstick marks found on the left glove were of the same color and
chemical content as lipstick which had been found in the handbag of the
deceased.
Furthermore, by his extra-judicial statements and confessions it was
established that the gloves had been identified by defendant as being
the same gloves that he had secured in a burglary theretofore committed
by him and which he admitted having worn on the occasion of the assault
in question, in order to avoid leaving fingerprints.
Some
months after the assault was committed and on August 28, 1939, defendant
was taken into custody for questioning by the police in connection with
certain burglary and other charges. While defendant was being taken to
the police station in the police car it appeared that a piece of two-by-four,
approximately eleven inches long, was found on the rear seat of the
automobile where defendant was riding, and that when he observed it he
was said to have remarked, "My God, not that!" However, it did not
appear that the said section
of two-by-four was taken from defendant, nor was either of the
accompanying police officers able to account for its presence in the
automobile,--although it later was shown that it was not the same piece
of two-by-four which defendant had used in committing the assault on
Miss Sosoyeva. On the following morning, while he was being questioned
specifically with regard to the "campus" crime, defendant made a full
and complete confession of his connection therewith. Later he repeated
the same confession before the members of the grand jury, which body
returned the indictment against defendant.
At the trial of the
case, in addition to the confession of defendant, a sound motion picture
was presented in evidence which depicted a purported reenactment by
defendant of the several incidents which related to the assault.
Defendant declined to offer any evidence whatever in his own behalf.
Appellant's principal
contention on this appeal is that the jury should have found that his
crime amounted only to murder of the second degree. He argues that,
independent of his confessions and extra-judicial statements, the
evidence established only the fact that he committed the homicide. He
contends that the following circumstances tend to show lack of
premeditation: That at the time when the assault was committed appellant
did not even know the deceased; that the blow was struck by an immature
youth who would not have fully appreciated the consequences which might
have resulted from the use of the weapon employed; that one seeking to
take life would not have embarked unarmed on such an errand, and then
have adopted and used for that purpose an instrument which chance placed
in his hand near the scene of the assault; and that a person who had
sought to take a human life would not have contented himself with a
single blow while his intended victim still lived.
Appellant also argues
that, apart from his extra-judicial statements and confessions, the
evidence is positive that the homicide was not committed by him in
perpetration of or attempt to perpetrate any of the crimes specifically
enumerated in section 189, Penal Code, and, therefore, that in the
absence of proof of premeditation on the part of appellant, the homicide
amounted to no more than murder of the second degree. He argues that
premeditation may not be presumed or inferred, but that it must be
proved the same as any other element
of
the offense; that the degree is an essential element of the corpus
delicti of the crime and cannot be established by admissions and
confessions of the defendant; and that where the killing is proved to
have been committed by the defendant, and nothing further is shown, the
presumption of law is that it was malicious and an act of murder, but
that in such case the verdict should be murder of the second degree and
not murder of the first degree (citing People v. Howard, 211 Cal. 322,
329 [295 P. 333, 71 A.L.R. 1385]).
[1] Murder is defined as
the unlawful killing of a human being with malice aforethought. (Sec.
187, Pen. Code.) Such malice may be express or implied. It is express
when there is manifested a deliberate intention unlawfully to take away
the life of a fellow creature, and it is implied when no considerable
provocation appears, or when the circumstances attending the killing
show an abandoned or malignant heart. (Sec. 188, Pen. Code.) [2] All
murder which is perpetrated by means of poison, or lying in wait,
torture, or by any other kind of wilful, deliberate, and premeditated
killing, or which is committed in the perpetration of or attempt to
perpetrate arson, rape, robbery, burglary, or mayhem, is murder of the
first degree; and all other kinds of murders are of the second degree. (Sec.
189, Pen. Code.) [3] Where homicide occurs in the course of the
commission of any of the crimes of arson, rape, robbery, burglary, or
mayhem (as enumerated in section 189, Penal Code), intent need not be
proved. But where death otherwise results, wilfulness, premeditation and
deliberation must be established in order to constitute the crime of
first degree murder.
[4] With regard to the
crimes specifically mentioned in section 189, Penal Code, it appears to
have been the theory of the prosecution that appellant intended to
commit the crime of rape when he made the assault and that (excluding
the confessions and admissions of the defendant) the facts and
circumstances surrounding the commission of the assault were sufficient
to show that he intended to commit such offense. However, aside from the
extra-judicial statements and confessions of appellant, from a review of
the record herein it does not appear that there was any direct evidence
to show either the perpetration of or the attempt to perpetrate the
crime of robbery, rape, or any of the other offenses particularly named
in the code section,--even though it was apparent
that
appellant had the opportunity for the commission of such offenses. But
even if there was no evidence apart from the confessions and
extra-judicial statements of the defendant to show that the crime was
committed in an attempt to perpetrate any of the offenses enumerated in
the code section, the jury would have been entitled to infer the
existence of premeditation in the commission of the homicide, if it
appeared that such a conclusion was warranted from a consideration of
all the facts and circumstances connected with the assault. (People v.
Owens,
27 Cal.App.2d 606, 611 [81 PaCal.2d
429]; People v. Wells, 10 Cal.2d 610, 624 [76 PaCal.2d 493]; People v.
Spinelli, 14 Cal.2d 137, 142 [92 P. 1017]; People v. Campos,
10 Cal.App.2d 310, 315 [52 PaCal.2d 251]; People v. Johnson, 203 Cal.
153, 164 [263 P. 524].)
In
the case of People v. Owens, 27 Cal.App.2d 606,
610, 611 [81 PaCal.2d 429], it was said: " '... It is settled that "malice
may always be inferred from the circumstances in the case--the evidence
presented and considered by the jury." (People v. Glover, 141 Cal. 233,
243 [74 P. 745].) ... The circumstances that were shown to have
surrounded the homicide, including the character of weapon used, the
nature of the wound inflicted, the fact that the deceased displayed no
weapon of any character and was unarmed, the acts and conduct of the
accused, furnished ample justification for the indulgence by the jury in
the inference that appellant entertained a deliberate purpose to kill
the deceased. This properly supported inference warranted the return of
a verdict convicting appellant of murder in the first degree. (People v.
Mahatch, 148 Cal. 200 [82 P. 779]; People v. Bennett, 161 Cal. 214 [118
P. 710]; People v. Peete, 54 Cal.App. 333, 342 [202 P. 51].)' " There it
was further said, quoting from the case entitled People v. Fleming, 218
Cal. 300 [23 PaCal.2d 28]: " '... this court has said on innumerable
occasions that in order to prove premeditation in one charged with
murder it is not necessary to show that any appreciable space of time
elapsed between the intention to kill and the act of killing. ... Where
one assaults another violently with a deadly weapon and takes his life
the presumption is that the assailant intended death or great bodily
harm. (13 Cal.Jur., p. 683.) And where, as in this case, the assault was
made in a manner that was reasonably certain to produce death, and which
actually did cause death, the only rational presumption
to
be drawn therefrom is that the assailant intended to take the life of
the person assailed.' "
And
in the case of People v. Wells, 10 Cal.2d 610,
624 [76 PaCal.2d 493], it was said: "... with respect to the issue of
whether the offense was that of murder in the second degree: It was the
exclusive province of the jury to determine from the evidence whether
the killing was the 'wilful, deliberate and premeditated' act of
defendant. In that connection, in the case of People v. Mahatch, 148
Cal. 200, 203 [82 P. 779], in part it was said: 'The jury, having found
that the only extenuating circumstance which he interposed had no
existence in fact, and no claim of any circumstances of mitigation,
justification, or excuse for the killing being advanced, had a right to
infer, from the character of the weapon used, the nature of the wound
inflicted, and the acts and conduct of the accused, the existence of a
deliberate purpose on his part to kill the deceased when the fatal blow
was struck, and, so inferring, were warranted in returning a verdict
therefrom for murder in the first degree. This is the general, it may be
said the universal, rule. If a different one prevailed, secret murders
could rarely be punished by the infliction of the highest penalty. It is
exclusively the province of a jury to determine the degree of crime when
there is any evidence in the case which will support the determination.'
" (Emphasis added.)
Also,
in the recent case of People v. Spinelli, 14 Cal.2d 137, 142 [92
PaCal.2d 1017], it was said, quoting from People v. Johnson, 203 Cal.
153 [263 P. 524], that " '... section 1105 of the Penal Code provides
that "the commission of the homicide by the defendant being proved, the
burden of proving circumstances of mitigation, or that justify or excuse
it, devolves upon him, unless the proof on the part of the prosecution
tends to show that the crime committed only amounts to manslaughter, or
that the defendant was justifiable or excusable". The defendant offered
no proof to meet the burden which the law casts upon him and as there
was no claim of justification or excuse offered for the killing of
decedent or pretense that the proof tended to show that the crime
committed only amounted to manslaughter, the crime was murder of the
first degree'."
As hereinbefore has been
indicated, at the close of the case for the prosecution, appellant
rested. He produced no evidence
on
his own behalf, nor any which tended to show mitigation, excuse or
justification for the commission of the crime with which he was charged.
His confessions and extrajudicial statements were introduced in evidence
upon stipulation of counsel and without objection on his part, nor were
they or any of them challenged by him as having incorrectly reflected a
true recital of the several statements and admissions which were therein
attributed to him.
[5] From the authorities hereinbefore cited it is apparent, therefore,
that in the present case it was for the jury to determine the question
of the presence of premeditation or lack thereof on the part of
appellant in the commission of the crime, from a consideration of the
type of weapon employed and the manner of its use; the nature of the
wounds suffered by the deceased; the fact that the attack was unprovoked
and that the deceased was unarmed at the time of the assault; the
conduct of her assailant in refusing or neglecting to aid her at a time
when by his own statement he had formed the impression she was trying to
call for help, and his immediate flight thereafter from the scene of the
assault. However, appellant contends that "the very nature of the
instrument which in this case did in fact cause death would negative a
plan to take life, for it is difficult to believe that one would choose
such a weapon to accomplish that intent". [6] The instrument employed by
appellant, from the use of which Anya
Sosoyeva met her death, was a piece of two-by-four about two feet long.
She was struck on the back of her head, the blow having been delivered
by the use of both hands of her assailant. Although perhaps it may not
be said that such an instrument is one which is inherently dangerous or
deadly, nevertheless it is obvious that such a weapon may become so if
used in a particular manner or if the blow be inflicted on certain
portions of the body. (People v. Valliere, 123 Cal. 576 [56 P. 433].) In
the last-cited case, it was ruled (syllabus) that "if the testimony
shows that the question whether the instrument used was such as would be
likely to produce death depends upon the manner of its use and the
portion of the body upon which it was used, it becomes a mixed question
of law and fact whether it was a deadly weapon, which the jury must
determine under proper instructions from the court". (Emphasis added.)
Also, in the case of People v. Raleigh, 128 Cal.App. 105, 108, 110 [16
PaCal.2d 752], the
court pointed out the distinction between instrumentalities which are "weapons"
in the strict sense of the word, such as guns, dirks, etc., and those
instrumentalities which are not weapons in that sense, such as canes,
hammers or other heavy objects. With reference to the latter
classification the court said, "When it appears ... that [such] an
instrumentality ... is capable of being used in a 'dangerous or deadly'
manner, and it may be fairly inferred from the evidence that its
possessor intended on a particular occasion to use it as a weapon should
the circumstances require, we believe that its character as a 'dangerous
or deadly weapon' may be thus established, at least for the purposes of
that occasion." And it was held in that case that, if "from all the
facts and circumstances the jury is convinced beyond a reasonable doubt
that the instrumentality was one which, in the hands of the perpetrator
of the robbery, was capable of being used in a 'dangerous or deadly'
manner and that the perpetrator of the robbery intended to use it as a 'weapon'
should the circumstances require, then the character of the particular
instrumentality is established as a 'dangerous or deadly weapon' ..." (Emphasis
added.) Therefore, under all the facts and circumstances of the instant
case the questions of the nature of the weapon and the manner of its use
in their relation to the crime committed were for the determination of
the jury. (People v. Lee,
23 Cal.App.2d 168 [72 PaCal.2d 572];
People v. Valliere, 123 Cal. 576, 579 [56 P. 433].)
[7] Appellant also
contends that prejudicial error was committed by the trial court in its
refusal to give to the jury the following instruction:
"The law presumes a man
to intend what he does, but the law does not presume a killing with
premeditated design. It is like every other element of murder in the
first degree and must be proved beyond a reasonable doubt before the
jury would be entitled to find the defendant guilty."
Appellant asserts that
the refusal of the court to give that instruction was rendered
particularly injurious to his rights by reason of two instructions which
the court gave and which were substantially as follows:
"A
person is presumed to intend to do that which he voluntarily and
wilfully does in fact do, and must also be presumed to intend all of the
natural, probable and usual consequences of his own acts. Therefore, if
you are satisfied to a moral
certainty and beyond a reasonable doubt that the defendant did assault,
on the date mentioned, one Anya
Sosoyeva violently with a dangerous weapon, likely to kill, and which
did in fact destroy the life of said Anya Sosoyeva the natural
presumption is that such assailant intended death or great bodily harm,
and in the absence of evidence to the contrary this presumption must
prevail."
One of those
instructions contained the following additional statement that "The
wilful use of a deadly weapon without excuse or provocation, in such a
manner as to imperil life, generally indicates a felonious intent."
With regard to the first
portion of the instructions that were given, to which appellant has
objected, he argues that the language therein expressed in effect told
the jury that the mere proof of a felonious assault which resulted in
death would ipso facto constitute proof of intent to kill and thus
establish the premeditation embraced in the definition of first degree
murder. Appellant contends that those instructions should have included
the further advice that the deliberation and premeditation embraced in
the definition of first degree murder were not to be presumed or
inferred, but that the existence of those elements had to be proved to
the same degree as any other element of the offense. However, from that
which has been said hereinbefore, it is apparent that an objection to
the two instructions on that ground is without merit. Moreover, in the
case of People v. Jones, 160 Cal. 358, 370 [117 P. 176], it expressly is
held that the rule contended for by appellant is without application to
homicide cases. Other authorities to the same effect need not be cited.
With reference to that
part of the instruction which advised the jury that "the wilful use of a
deadly weapon without excuse or provocation, in such a manner as to
imperil life, generally indicates a felonious intent", it appears that
the jury was not specifically instructed that it was the province of the
jury to determine whether the weapon employed by appellant herein
constituted a "deadly" weapon, nor was it instructed that "a deadly
weapon is one likely to produce death or great bodily harm". (26 Cal.Jur.,
p. 573; see, also, People v. Valliere, 123 Cal. 576 [56 P. 433].)
[8] However, in
considering claimed errors in the giving of or refusal to give certain
instructions, it becomes the duty of an appellate court to consider the
entire cause, including
all
the evidence, for the purpose of determining whether a miscarriage of
justice has resulted (People v. Fleming, 166 Cal. 357 [136 P. 291, Ann.
Cas. 1915B, 88]; People v. Hoffman, 195 Cal. 295 [232 P. 974].) [9] In
the present case, aside from any other evidence, the extra-judicial
statements and confessions of appellant indicated that when he went to
the campus grounds on the night of the assault he intended to commit the
crime of robbery. By that admission it is apparent that a consideration
of the evidence in its entirety shows a violation by appellant of that
portion of section 189, Penal Code, which provides that where a homicide
occurs in the course of the perpetration of or attempt to perpetrate the
crime of "arson, rape, robbery, ..." the crime committed is murder of
the first degree.
No prejudicial error
appearing in the record herein, it is ordered that the judgment, and the
order by which defendant's motion for a new trial was denied, be, and
they are, affirmed.
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