(202 P.)

body as one that had been worn by Denton. [ worn by the deceased by a pin stripe runIt bore the latter's initial, "D." He also ning through the cloth. He also testified identified as Denton's property a ring upon that he had many times seen on Denton's the dead man's hand, as well as a pair of right hand the ring that was found on the cuff buttons found in the shirt. The re body. This ring, he testified, had been enmains were in an advanced stage of decom- larged and reconstructed partly with gold position, and the features were unrecogniz- from the wedding ring of Denton's wife, and able. The body was that of a man weighing from Denton's mother's ring. The witness about 200 pounds. It was taken to an undertaking establishment, where an autopsy was held by Dr. Webb, who was then acting as deputy autopsy surgeon in the absence of Dr. Wagner, the autopsy surgeon of Los Angeles county.

also identified the body by a gold tooth. A laundryman, who had taken the laundry from Denton's home, testified that the mark "H. J. H." on the shirt that was found on the body was the laundry mark that had been placed on the shirt for the purpose of identifying Denton's laundry. Other witnesses who had known Denton in his lifetime identified the body as that of their oldtime friend.

Upon the return of Dr. Wagner, he and Dr. Webb held another autopsy at which X-ray photographs were taken. These disclosed some dark bodies in the region of the neck, indicating the presence of metallic Upon several occasions prior to the return substances. A dissection of the neck showed of the indictment against her and prior to that one of the vertabræ had been broken, her formal arrest on the charge of murder, and that the broken particles of bone were defendant made statements to the authorlodged in the tissue. A small opening at the ities respecting certain phases of the baffling base of the skull was also found. The tis- mystery arising out of Denton's unaccountsues were swollen. There was evidence that able disappearance. On one of these occathe vertebral artery had been ruptured and sions, at a ranch in an adjoining county, on the spinal cord severed. This, according to October 4, 1920, a deputy district attorney, the evidence given by witnesses for the in the presence of a shorthand reporter and prosecution-medical experts and others others, propounded a number of questions to was due to a bullet which had hit on the defendant respecting certain aspects of the side of the vertebra and evidently had pass- case. These questions were freely answered ed through. Such a gunshot wound, these by her. The questions and answers were medical witnesses testified, would cause in- taken down in shorthand by the phonographstant death. Dr. Wagner testified that the ic reporter, who subsequently transcribed aperture in the neck was about the size made his notes, and his transcription was read to by a 32 or 38 caliber bullet, and stated that the jury. In her answers to these questions in his opinion the cause of death was a gun- defendant stated facts which, when considshot wound through the neck. He further ered in connection with other evidence in testified that it was impossible to tell how the case, are of a gravely incriminating long the corpse had been in the grave where nature. Defendant objected to the introducit was found in the basement of the Denton tion of the statement so made by her on Ochome. He said that there was a constric- tober 4, 1920; and its receipt in evidence is tion around the body, apparently due to a now assigned as error. The statements or belt, and another around the neck, which declarations made by defendant on these might have been caused by a rope. He admitted that there were certain conditions about the body that frequently are found in strangulation, and testified that at the coroner's inquest he had stated that strangulation was a possible cause of the death.

several occasions are replete with contradictions and fanciful excusatory explanations, evidently made in an attempt to establish her own innocence by diverting from herself the accusatory circumstances that pointed to her as the murderer of Denton.

Following its removal to the undertaking establishment, the body and the clothing in [1] Appellant contends that because she which it was found were examined by Den- stated in one of these declarations that she ton's relatives and others who had known had seen Denton alive as late as July 24th, him in his lifetime. On the body was a and because this statement as to the date shirt on which was a private monogram con- when she last saw Denton was not directly sisting of the letters "J. C. D." Paul Au- contradicted, the jury was not warranted in ment identified the shirt as one that belong- finding that Denton died at an earlier date ed to Denton, stating that the initials "J. C. at a date more in keeping with the proseD." had been made by a rubber stamp that cution's theory of the case. The jurors were had been in Denton's possession. The belt under no obligation to believe any particubuckle found on the body and bearing the lar part of defendant's unsworn declaration. initial "D," the witness had seen many In so far as its inconsistencies and chimertimes on the person of Denton, to whom it ical statements constituted a self-woven web had been given by his niece, Mrs. Aument, in whose meshes she had inextricably enPaul Aument also identified the trousers tangled herself, the jury might consider her

declaration as self-incriminatory; but they was used, from the acts and conduct of the were under no obligation to accept any part of it as true.

We sit here in criminal cases solely for the question of the degree of the crime is exclu

sively for the jury, and their determination will not be disturbed when there is any evidence to support it. People v. Machuca, 158 Cal. 64, 109 Pac. 886. We think that the circumstances disclosed by the evidence are ample to support the inference that the killing was unlawful, was done with malice aforethought, and was willful, deliberate, and premeditated.

Appellant urges two specific objections against the sufficiency of the evidence to These are: (1) That justify the verdict. the evidence is insufficient to establish that the death of the person whose body was found in the basement of the Denton home was caused by a gunshot wound; and (2) that the evidence is insufficient to show that the body was that of Jacob Charles Denton.

[6] In support of the first of these two points respecting the sufficiency of the evidence it is claimed that the evidence supports the theory that death was caused by strangulation, and not the theory that a bullet from a pistol was the cause of death. From these premises it is argued that the evidence dem

[3-5] One of the points made on this ap-onstrates that a woman of defendant's apparpeal is the broad, general contention that the evidence did not warrant the jury in returning a verdict of murder in the first de gree. It is the general, if not universal, rule that where, as here, the evidence is entirely circumstantial, and no claim of any mitigating circumstances, justification, or excuse for the killing is advanced by the accused, the jury, from the nature of the wound inflicted, from the character of the weapon which the nature of the wound indicates

(202 P.)

by the people's witness, Dr. Wagner, who gave sideration. That the deceased was murdered it as his opinion, based on his personal ob- by some one under circumstances warranting servations of the body and X-ray photo- an inference of malice, premeditation, and graphs of the wound in the neck, that death deliberation is, as we have said, an inference was caused by a gunshot wound through the that is reasonably deducible from all the cirneck, from which death ensued practically cumstances of the case. If strangulation was instantaneously. A substantially similar the means used to kill the deceased, it unopinion was given by Dr. Webb. It is true doubtedly took some appreciable time to comthat when Dr. Webb held his first post-mor- plete the atrocious deed after the victim had tem examination he found conditions in the become helpless. If strangulation was the body which he then stated indicated that cause of death, the pressure, without doubt, strangulation might have been the possible was steady and continuous, and was applied cause of death. This was before the second with wicked and cool depravity. This fact, autopsy, that of October 20th, revealed a coupled with the inherent cruelty and barwound in the neck and the presence therein barity of such means of causing another's of metallic substances tending to show that death, would justify the jury in finding that a bullet had passed through the vertebral the murderer, whoever he or she might be, artery and severed the spinal cord. It is also had killed the deceased unlawfully and detrue that Dr. Wagner, on his cross-examina- liberately, with malice aforethought and pretion, testified that he could not tell, from his meditation. Wharton on Homicide, pp. 225inspection of the body, how long the deceased 227. But it is claimed that, irrespective of had been dead, nor whether the shot was any question as to the degree of the crime, if fired before or after death. At most, these Denton, a large and powerful man, weighing facts merely indicate that, following the dis- about 200 pounds, was strangled to death, a covery of what appeared to be a bullet woman of defendant's build and strength wound, Dr. Webb abandoned any theory of could not have been the perpetrator of the strangulation, as the probable cause of death, deed. This hypothesis is not so demonstrable in favor of what to him was the more rea- as to preclude the jury from reaching a difsonable theory of death by gunshot wound. ferent conclusion. The fact that Denton was And though Dr. Wagner admitted that he foully murdered by someone, with a willful, could not tell whether the shot was fired be deliberate and premeditated purpose to kill, fore or after death, he still was of the opin- was sufficiently established. The fact of deion, based on his own observations of the fendant's guilty connection with that murbody and the X-ray photographs, that a gun- der, no matter how it was accomplished, shot wound was the cause of death. The might well be inferred from all the circumjurors, who had all the facts and circumstanc- stances of the case, particularly from the es before them, were in a position to judge many inconsistencies and obvious fabricabetween the opposing theories advanced by tions found in the specious and fanciful exthe medical witnesses and to determine which trajudicial explanations vouchsafed by her to was the more probable in view of all the con- explain certain peculiar phases of the case, ditions as explained to them by the witness- That theft was her motive might well be ines in the case. So all we have is a conflict ferred from many facts to which, so far, we in the theories offered by the medical ex- have not deemed it necessary to allude. For perts. Such being the case, we cannot sus- example, there is the fact that, subsequent tain appellant's contention that the evidence to Denton's disappearance, defendant took was wholly insufficient in law to sustain the possession of his jewelry, some of which was verdict. disposed of by her. It has been held that [7-9] Moreover, even if strangulation were possession by the accused, shortly after the the cause of death, it would not necessarily homicidal death, of articles known to have follow that the evidence was not sufficient to belonged to the decedent, under circumstancJustify the verdict of murder in the first de-es that would justify the inference of larceny, gree. The indictment, following the form is sufficient to establish the guilty agency of

long approved in this state, does not state the manner or means of death. The prosecution, therefore, could advance any reasonable hypothesis as to the cause of death, and the jurors were free to adopt such theory as in their judgment was most in accord with a reasonable interpretation of all the incriminatory circumstances in the case. That the person whose body was found in the basement of the Denton home was Denton himself was, as we shall presently show, sufficiently established by the circumstantial evidence brought before the jury for their con

the accused, especially when coupled with his false statements as to the whereabouts of the missing person. State v. Barnes, 47 Or. 592, 85 Pac. 998, 7 L R. A. (N. S.) 181. As was said in Williams v. Commonwealth, 29 Pa. 102:

"If criminal offenses are to be punished, circumstances like these must be laid hold of to prove them."

Moreover, there was an abundance of circumstantial evidence sufficient to have war ranted the jury in inferring that defendant,

either alone or with the aid of some uniden- | 295, there were five persons who honestly betified confederate or confederates, had con- lieved that they saw the deceased alive after cealed the body where it was found in the crypt under the cellar staircase. It is one of the badges of guilt to attempt concealment of the act done; and, where a homicide has been committed and the body is concealed, it is a legitimate inference therefrom that the person who concealed the body is connected with the crime as author or participator. State v. Dickson, supra. For these reasons it was not necessary that the jury should have adopted any particular theory as to how the deed was accomplished. To warrant the verdict it was not necessary that the prosecution should have proved, or that the jury should have believed, that a gunshot wound, and not strangulation, was the cause of death.

he, in fact, had been killed. Where the body is identified by the clothing and articles found thereon, it rests exclusively with the jury to determine, from all the evidence, what weight to give such identifying circumstances; and if there is a conflict in the evidence, their determination is conclusive upon this court. On September 24, 1920, on the top shelf of a closet in a room on the second floor of the Denton home, one of the detectives working on the case found a 32-caliber revolver in its holster. It will be recalled that, though Dr. Wagner was unable to state accurately the caliber of the bullet that cause the aperture in the neck of the deceased-probably on account of the decomposed condition of the body-he did testify that the wound was about the size made by a 32 or 38 caliber bullet. In the revolver found in the closet were five loaded cartridges and one empty shell. The closet in which the pistol was found was locked, being entered by the detective with a pass-key. Several dresses, hanging on hangers, were in the closet at the time. The pistol was identified by two witnesses, who said that it was Denton's revolver. The room in which it was found had

[10, 11] Just as little merit is there in the claim that the dead body was not identified as that of Denton. It is true that, when the corpse was found, the features were unrecognizable. But relatives and former acquaintances of Denton were able to, and did, identify the remains as those of Denton by the clothing found thereon, by a belt buckle, a ring, and cuff buttons, a gold-crowned tooth, by an old fracture of the upper third of the right arm, as well as by a general re-been occupied by Denton prior to the lease semblance in the outlines of the face, dis- of the premises to defendant. Following this figured though it was by putrefaction, and in lease, and until about the time when she left the contour and weight of the body. This for Denver on the 25th of August, after havwas sufficient to meet the most exacting re- ing leased the premises to a third party, dequirements of the law, which does not defendant occupied this room. On several ocmand direct or positive proof as to the iden-casions, in her statements to others, defendtity of the body of a murdered man. Iden- ant claimed that on the night of June 2d or tity may be shown as effectively by inferences from facts and circumstances as from the positive testimony of witnesses. Where the body has been badly burned, mutilated, or decomposed, identity may be established, as it was here, by articles of clothing and other personal belongings found on or near the body, especially where, as in the instant case, the accused has made false statements in an attempt to account for the disappearance of the person in question. People v. Palmer, 109 N. Y. 110, 16 N. E. 529, 4 Am. St. Rep. 423; People v. Beckwith, 108 N. Y. 67, 15 N. E. 53; Commonwealth v. Webster, 5 Cush. (Mass.) 295, 52 Am. Dec. 711; State v. Pepo, 23 Mont. 473, 59 Pac. 721; Hawkins v. State, 60 Neb. 380, 83 N. W. 198; State v. Dickson, supra; State v. Barnes, supra, and notes on page 181 et seq., 7 L. R. A. (N. S.); 21 Cyc. 887; Wharton on Homicide, p. 910. In People v. Palmer, supra, such evidence was held to be sufficient notwithstanding the testimony of witnesses that they had seen the person alleged to have been murdered after the date of the alleged murder, the court saying that such witnesses were [12] The revolver, its holster and the cart"probably honest, but quite mistaken." So, ridges were admitted in evidence, over dealso, in the Webster Case, 5 Cush. (Mass.) | fendant's objection. This was not error. It

the morning of June 3d Denton had had a quarrel with a Spanish woman, who, the evidence tends to show, was a mythical personage invented by defendant to account for Denton's disappearance. In these statements defendant, it is evident, tried to create the impression that, in his quarrel with this supposititious individual, Denton had slightly wounded the "Spanish woman." On October 15th, in a conversation that defendant had with an investigator for the district attorney's office, she was asked with what weapon Denton had shot the "Spanish woman." Her reply was: "Well, you have got the gun, the gun that was taken out of the locker upstairs-or rather, the closet." She then went on to state that the bullet that had wounded the Spanish woman-a bullet from this pistol, according to her statement-subsequently was found by her in the sink of the bathtub upstairs. These replies have a tendency to show that defendant had knowledge of the presence of the revolver in the closet, and that one of the cartridges had been discharged.

(202 P.)

was necessary for the prosecution to show, as, the homicide. In People v. Sampo, 17 Cal. accurately as the circumstances would pernit, the means by which and the manner in which Jacob Charles Denton had come to his death.

"The relevancy of proffered proof in a criminal case depends upon whether or not it tends to sustain a legitimate hypothesis of the guilt of the defendant, and, generally speaking, an incidental fact is relative to the main fact in issue when, in accord with the ordinary course of events and common experience, the existence of the incidental fact, standing alone or when considered in connection with other established facts, tends in some degree to make the main fact in issue certain. It is not necessary that such incidental fact should bear directly upon the main fact in issue, for it will suffice as a pertinent piece of proof if it can be said to constitute a link, however small, in the chain of evidence, and tends thereby to establish the existence of the main fact in issue. [Citing authority.] Hence any fact is relevant evidence which naturally tends to show the means and method employed in the commission of a crime, and therefore it was proper in the present case to admit evidence of the identification of the cartridges picked up near the scene of, and shortly after, the explosion, and, having been so identified, they were rightfully admitted in evidence." People v. Billings, 34 Cal. App. 552, 553, 168 Pac. 396, 398.

Dr. Wagner, who gave it as his opinion that a gunshot wound was the cause of death, described to the jury the character and size of the aperture in the neck, saying that "it was about the size that is generally made by a 32 or 38 caliber bullet." The body was not before the jury. So the doctor, in the testimony just quoted, is describing the condition of the body at the time when he held the autopsy; he is describing, as accurately as his recollection will permit, the nature of the wound and the size and character of the aperture in the neck, and he says that the aperture was "about" the size that is generally made by a 32 or 38 caliber bullet. From all the facts as detailed to them by the physicians and by the lay witnesses respecting the nature of the wound that was found in the neck of the body, the jurors might well have drawn the inference that a bullet through the neck from a 32-caliber revolver

was the cause of death. The nature of the wound in the neck, the particles of metal found therein, the presence of the 32-caliber revolver in the locked closet of the room that was occupied by the defendant at the time when it is probable that the murder was perpetrated, the fact that one cartridge in the revolver had been discharged, considered to gether and with the other circumstances in the case, had a direct tendency to show that the wound found in the neck of the body had been made by a bullet from this revolver that was found in the closet, thus tending to connect defendant with the perpetration of

App. 149, 118 Pac 963, referring to the admission in evidence of a rock found at the place where the defendant had beaten the deceased, the court held that such evidence was properly admitted, not only because there was testimony that the defendant had used a rock in attacking the deceased, but also because this rock was admissible in evidence for the following reasons:

"Moreover, the doctors testified that the wound inflicted upon Pistone's head appeared to have been produced by some blunt instrument, and that it could have been caused by the use of the rock in question. Having been found at the very place where the beating occurred, with fresh blood stains thereon, and in view of the testimony of the physicians that the wound could have been made by means thereof, the rock itself constituted a pertinent circumstance, to be considered with the other evidence, in determining the question of the guilt of the accused."

See, also, People v. McDowell, 64 Cal. 467, 3 Pac. 124, where it was said that testimony that a slungshot was found in the possession of the defendant was admissible because it was evidence tending to show "that the wounds inflicted upon the person of deceased

might have been caused by such an instrument." To the same effect are People v. Nakis, 193 Pac. 92, People v. Wilson, 23 Cal. App. 519, 138 Pac. 971; People v. Gilman, 185 Pac. 310, and People v. Carson, 192 Pac.

318.

[13] The inability of Dr. Wagner to say definitely whether the aperture in the neck was of the size made by a 32 or by a 38 caliber bullet, or whether the bullet was fired before or after death, is not a ground for the exclusion of the revolver. It was the province of the jury to determine from a due consideration of all the circumstances in the case (including the fact that a 32-caliber revolver with one cartridge discharged was found in Mrs. Peete's closet) whether the deceased

came to his death from a revolver of that

caliber fired by the defendant. Answering a somewhat similar objection urged by the defendant in People v. Sullivan, 129 Cal. 560, 62 Pac. 103, the court said:

"Notwithstanding the slight difference in weight in the bullet, under the circumstances it cannot be said that the jury were not justified in finding that it was the one shot from the gun borrowed by defendant, nor can it be said that the chain of circumstantial evidence was not sufficient to support the verdict of the jury. 'It is the peculiar province of the jury to weigh the evidence and decide upon the credibility of the witnesses; and it is not our practice to disturb verdicts on this ground unless there is either a total deficiency in the evidence or it preponderates so greatly against the verdict as to render it clear that the jury must have been under the influence of passion or prejudice.'"