Nellie May Madison (1895-1953) was an American woman who was convicted of murder in 1934 for killing her husband. She was the first woman to be sentenced to death in the state of California. Due to public outcry, her sentence was later commuted to life in prison and she was eventually released.

Her case helped garner legitimacy to the abuse defense, a concept virtually unknown at the time, in criminal cases.

Murder and conviction

On March 24, 1934 at their home in Burbank, California, after repeated spousal abuse episodes by her husband Eric Madison, Nellie Madison pointed a gun at Eric while he was lying in his bed with the intent on threatening him. He quickly reached under the bed for a box of butcher knives and hurled two at her, both of which missed her. As he was reaching for another knife, Nellie shot Eric in the back five times, killing him.

Nellie Madison was later arrested and tried for the murder of her husband. Even before he knew all the facts, Los Angeles County District Attorney Buron Fitts sought the death penalty for Madison. On advice of her lawyers, Madison made no mention of the spousal abuse and claimed she was not at the scene of the murder. As her story was implausible, a jury convicted her and Judge Charles Fricke sentenced her to the death penalty. On appeal, the California Supreme Court upheld the conviction.

Appeal

After sentencing, Madison's ex-husband, whom she was still friends with, urged her to make the spousal abuse episodes public.

When pleading her case to Fricke, he refused to reduce the sentence and dismissed the allegations of domestic violence as "ridiculous."

But soon Madison began receiving public support, including from prominent journalist Aggie Underwood. All jurors who convicted Madison petitioned Governor Frank Merriam to commute the sentence. In September, 1935, Merriam commuted Madison's sentence to life in prison. After she waged a letter-writing campaign from prison to reduce her sentence, Governor Culbert Olson had Madison freed from prison on March 24, 1943, exactly nine years after the murder.

Reference

Cairns, Kathleen A. (2007). The enigma woman: the death sentence of Nellie May Madison. University of Nebraska Press. ISBN 0-8032-1141-4.

Wikipedia.org

Madison, Nellie May (5 Apr. 1895-8 July 1953), the first woman on death row in California, was born Nellie May Mooney in Red Rock, Montana, the daughter of Edward Mooney and Catherine Doherty Mooney, ranchers who had emigrated to the United States from Ireland in the 1880s. The Mooneys eventually took advantage of the federal government's homestead program in the 1890s and operated a sheep ranch a dozen miles (nineteen kilometers) south of Dillon, Montana. Nellie was the youngest of their three children.

Nellie experienced an untraditional upbringing, compared with most women of her time. Though staunchly Catholic, her religious instruction relied on sporadic visits from a priest who rode horseback to minister to parishioners in his far-flung territory. Her life on the ranch inculcated in her a strong sense of autonomy. She learned to ride and to shoot, gaining such proficiency at the latter that she became locally renowned as a "crack shot" even before her teens.

Even as a teenager, Nellie was impulsive. She was especially drawn to flashy, brash men. She first married at thirteen, in October 1908, when she eloped to Ogden, Utah, with Ralph Brothers, a twenty-four-year-old cowboy. Her parents had the marriage annulled.

In 1912 Nellie moved to Boise, Idaho, where she enrolled in Links Business College. In Boise she married the firefighter Clarence Kennedy in 1917; although it is unclear whether they divorced, in 1919 Nellie married the mechanic Wilbert "Earl" Trask. They moved to Los Angeles the next year and divorced soon after. In 1925 she married William Brown, a locally prominent lawyer. In 1930 they divorced. The same year, she moved to the desert community of Palm Springs and became manager of the Desert Inn, a hotel catering to visiting celebrities.

In the spring of 1933, Nellie met Eric Madison, a charmer with a dark side. Following a whirlwind courtship, the couple married in July 1933 in Salt Lake City, then left for Dillon, Montana, where Nellie collected a one-thousand-dollar inheritance. Seven months later, the Madisons returned to Southern California. Both went to work in the commissary of Warner Bros. Studios, in Burbank, and moved into an apartment across the street from the studio's back lot.

Nellie's unconventional life, tendency to take risks, and impulsive behavior converged explosively in the bedroom of her Burbank apartment moments before midnight on 24 March 1934. The Madisons' neighbors awoke to the sounds of gunfire. Eric Madison's bullet-riddled body was discovered on the apartment floor, but Nellie Madison had disappeared. The Burbank police, acting on a tip, arrested her the afternoon of 26 March, hiding in the closet of a mountain cabin eighty miles north of Los Angeles. Dozens of reporters attended her interrogation at the Burbank police station. Nellie denied killing her husband, but was forced to reveal her checkered marital history. Charged with first-degree murder and jailed while awaiting trial, Nellie Madison became the focus of massive coverage for all five daily newspapers in Los Angeles. Tall and striking, with dark hair and large brown eyes, she was likened by journalists to the deadly femme fatales featured in pulp magazines and noir novels of the period. Artists obligingly touched up photos to make her look sinister. "Her lips curl in a slow, enigmatic smile," wrote a Los Angeles Herald Examiner reporter who sat in on Madison's questioning. "She is mistress of herself and the questioners, beaten back time after time, turn away in disappointment."

On 6 June 1934 the Los Angeles County district attorney upped the stakes in Nellie's case, announcing his intention to seek the death penalty. No woman had ever been executed by the state of California. The trial began the following day. "Unique in the annals of local history," according to the Los Angeles Times, it featured overflow crowds; a "hanging judge" known to favor prosecutors; courtroom exhibits that included the "death bed," complete with bloody sheets; and perjured testimony from the defendant, who insisted the dead man on her apartment floor was not Eric Madison.

On 23 June 1934 an eight-man, four-woman jury found Nellie Madison guilty of murder and sentenced her to hang. On 12 July she was driven to the California Institution for Women, Tehachapi, and placed into a specially constructed death row to await execution. But she did not hang. Following an unsuccessful appeal to the California Supreme Court, Madison fired her trial attorney and hired a new lawyer. On 21 June 1935 she confessed to the murder, citing extreme abuse--both physical and mental.

Authorities remained skeptical and mostly unmoved until Eric Madison's former wife, Georgia Madison, emerged with a similar story of abuse. Journalists who had previously portrayed Nellie Madison as a femme fatale now depicted her as a pathetic victim. One newspaper cartoon showed her in her prison cell reaching toward barred windows and the sun. Letters from the public poured into the office of California governor Frank Merriam, seeking her reprieve. On 16 September 1935, sixteen days before the scheduled hanging, Merriam commuted her sentence to life in prison.

Madison spent seven-and-a-half more years in prison, lobbying continuously for a pardon, sentence commutation, or parole. On 27 March 1943, almost nine years to the day of Eric Madison's murder, she walked out of the California Institution for Women. Her years in prison had cost her youth, health, and almost "everyone I hold dear," as she wrote in one letter to the governor. In the fall of 1943, she settled in San Bernardino and married one last time, to John Wagner, a house painter. She remained in this marriage until her death in July 1953 from a stroke.

Madison's life, trial, and death sentence provide a crucial window into gender ideologies and judicial practices of the 1930s and 1940s and a glimpse of the future. Her case presaged a media-driven culture based on sex and sensation and represented a very early--unusual for the time--example of a defendant's ability successfully to cite spousal battery as a defense for murder.

Bibliography

Appellate records and voluminous correspondence relating to the Nellie May Madison case are housed at the California State Archives in Sacramento, California. For information on Madison's life and trial, see Kathleen A. Cairns, The Enigma Woman: The Death Sentence of Nellie May Madison (2007). For information on the death penalty and women in American history, see Kathleen A. O'Shea, Women and the Death Penalty in the United States, 1900-1998 (1999). Death penalty politics in California are discussed in Theodore Hamm, Rebel and a Cause: Caryl Chessman and the Politics of the Death Penalty in Postwar California, 1948-1974 (2001).

Kathleen A. Cairns - ANB.org

Unwitting pioneer of the battered-woman defense

Nellie May Madison was sentenced to death for killing her husband, until she revealed abuse

By Cecilia Rasmussen - Los Angeles Times

February 4, 2007

Nellie May Madison got off on the wrong foot in life. She eloped at 13, married several times, chain-smoked, drank whiskey and, she'd later say, shot husband No. 5 in the back because he'd abused her.

Convicted of murder, she was sentenced to death. In 1935, the state Supreme Court upheld the sentence -- the first time it had done so against a woman.

Madison's aloofness earned her such newspaper monikers as "Sphinx Woman" and "Iron Woman." Unlike other female defendants, she didn't flirt or cry fetchingly. Supposedly on the advice of her lawyers, she lied on the witness stand, omitting the circumstances of the killing and claiming that the dead man in her apartment was a stranger.

Her conduct alienated nearly everyone.

"They really wanted to nail her," said Cal Poly San Luis Obispo history lecturer Kathleen A. Cairns. "They didn't like her lifestyle [nor] the fact that she didn't break down and cry."

Cairns learned of Madison's case when she ran across "Newspaperwoman," the 1949 autobiography of legendary Herald-Express editor Aggie Underwood. Motivated to know more, Cairns wound up writing "The Enigma Woman: The Death Sentence of Nellie May Madison," which is scheduled for publication this spring by the University of Nebraska Press.

Cairns' research took her from Madison's birthplace to her forgotten grave.

"Nellie had been an ambitious, free-spirited young woman, full of optimism for the future," Cairns said in a recent interview. "She also had lousy taste in men."

She was born Nellie May Mooney in Red Rock, Mont., in 1895. The youngest child of Irish immigrant ranchers, she was an expert horsewoman and a crack shot, Cairns says.

In 1908, at age 13, she eloped with a man 11 years her senior.

"It was her family's first serious warning of the reckless and impulsive streak that would cause them, and her, so much anguish and grief," Cairns wrote.

Nellie's parents had the marriage annulled and brought her home. She attended business school in Boise, Idaho, where she married twice more.

Nellie and husband No. 3 moved to Los Angeles in 1920. But he walked out, Cairns says, and Nellie divorced him in 1924.

She soon married the brother of her divorce attorney. Husband No. 4, William Brown, was a lawyer too. The couple lived in a middle-class neighborhood and spent weekends at a friend's ranch in Frazier Park.

But her multiple marriages -- and the fact that she was childless -- "placed her outside the boundaries that defined traditional womanhood of her time," Cairns wrote.

In 1930, she divorced Brown and headed to Palm Springs, working as a hotel manager. There she met a Danish immigrant and coffee shop manager, Eric Madison.

"He had an eye for the ladies, big dreams and schemes, dressed well, and drove a sporty 1930 Buick coupe," Cairns wrote. In 1933, Eric Madison learned Nellie had a $1,000 family inheritance and proposed.

Nine months later, they were in Burbank, working as cashiers at the Warner Bros. commissary. Eric Madison lasted about two weeks, Cairns says, before he was fired by studio boss Jack Warner for shouting at and shoving director Alfred Green and for overcharging Green by 10 cents for 50 cents' worth of cigars.

In March 1934, Nellie came home early from a movie to find her husband in bed with a 16-year-old. The girl screamed and fled. Eric Madison beat Nellie and bragged that he had tricked her into a fake marriage for her money. The beatings, Cairns wrote, continued for six days.

Finally, Nellie bought a gun, intending to scare her husband and retrieve a note he'd forced her to sign that stated they weren't married.

Just before midnight March 24, 1934, Cairns says, Eric Madison was in bed, arguing with his wife, who was standing at the foot of the bed. Nellie showed him her gun. Cursing, he reached under the bed for a box of butcher knives and hurled two at her in quick succession. As he turned to reach for another knife, Nellie pumped five bullets into his back.

Other tenants heard the shots but thought they came from the studio, where, Cairns wrote, "Filmmakers were shooting a gangster film, 'Midnight Alibi' " -- a Damon Runyon crime comedy.

The next day, a visitor found Eric Madison dead, and his "beautiful, dark-haired widow" -- as the newspapers soon called her -- was missing. Police found her at the Frazier Park cabin two days later, hiding under a blanket in a closet.

The knives were not logged as evidence, although neighbors claimed to have seen them. Nellie burned the humiliating note, she would later say.

Today, Cairns says, the case clearly would be called self-defense: "Therapists would say she suffered from post-traumatic stress, but no such notion existed in the 1930s."

Even before Dist. Atty. Buron Fitts knew the circumstances, he vowed to seek the death penalty. "Her motive is of no concern to the prosecution," a prosecutor assigned to the case declared in a newspaper account Cairns found. "She shot her husband in the back."

Until then, no woman had been executed in California, although at least two had been condemned: Laura Fair in 1871 and Emma LeDoux in 1906. Fair killed her San Francisco lover and the father of her child when she learned he was married. Her conviction was overturned; she was acquitted at a second trial. LeDoux poisoned her husband, chopped him up with an ax, put the pieces in a trunk and shipped it from Amador County to Stockton. Her death sentence was overturned; she went to prison.

Nellie Madison's hard luck continued with Judge Charles Fricke, a notorious "hanging judge." Fricke even left the bench to take the witness stand. Prosecutors summoned him because, during earlier testimony, he had used his stopwatch to count the 3 1/2 -second intervals between shots, The Times reported during the trial.

Her defense attorneys, brothers Joseph and Frank Ryan, were reluctant to claim self-defense because of what Cairns called "sordid" details -- such as the multiple marriages. Her account of what had happened, Nellie would later say, appalled her lawyers, who urged her to use the bizarre mistaken identity defense. Disbelieving jurors convicted her of first-degree murder.

Nellie stood "defiantly calm" as the verdict was read, Cairns wrote. But ex-husband William Brown jumped to his feet, then sat back down, sobbing loudly.

Sentenced to death, she appealed. In May 1935, the state Supreme Court upheld the sentence.

Brown urged her to tell the truth about the slaying. The next month, she did -- giving the version Cairns describes.

Joseph Ryan voiced outrage at her confession, saying "it was a complete surprise" to him. Nellie fired him and hired former Los Angeles prosecutor and prominent attorney Lloyd Nix.

Then-reporter Aggie Underwood also pleaded Nellie's case in the press.

Fricke remained unmoved, calling her story "ridiculous."

But when her version of events became known, a groundswell of opposition to her death sentence arose. Gov. Frank Merriam received hundreds of letters and affidavits demanding that the sentence be commuted. All 12 jurors and two alternates petitioned him. Eric Madison's previous wife, Georgia, emerged to tell a similar story of abuse. On Sept. 16, 1935, Merriam commuted the sentence to life.

From behind bars, Nellie waged a letter-writing campaign to get her sentence reduced. On Dec. 31, 1942, Gov. Culbert Olson complied. Exactly nine years after the slaying -- March 24, 1943 -- she left prison a free woman.

She moved to San Bernardino and changed her name to Helen Brown. She was married for the sixth time in 1944, to house painter John Wagner, and died of a stroke in 1953 at 58 -- still married to Wagner.

"She was born 50 years too soon," Cairns said. "She was a very complicated woman -- an enigma."

Supreme Court of California

People v. Madison

3 Cal.2d 668

THE PEOPLE, Respondent, v. NELLIE MAY MADISON, Appellant.

[Crim. No. 3826. In Bank. May 27, 1935.]

COUNSEL

Joseph W. Ryan and Frank J. Ryan for Appellant.

U.S. Webb, Attorney-General, Eugene M. Elson, Deputy Attorney- General, Buron Fitts, District Attorney, and Tracy Chatfield Becker, Deputy District Attorney, for Respondent.

OPINION

SHENK, J.

The defendant was convicted of murder of her husband, Eric D. Madison. The jury returned a verdict of first degree murder without recommendation. The court imposed the death penalty in accordance with law. From the judgment of conviction, and from an order denying her motion for a new trial, the defendant appeals.

About 4 o'clock on Sunday afternoon, March 25, 1934, a body identified as that of Eric D. Madison was found in the room occupied by the couple in an apartment house in the city of Burbank in Los Angeles County. The evidence also showed that four out of six bullets fired from a 32-20 Colt revolver pierced the body. The shots were shown to have been fired at close range. One of them pierced the head, coming out at the corner of the left eye near the nose. Another entered the back and passed through the great aorta into the liver. Some pierced the mattress and bedding and lodged in the floor beneath the bed. Others lodged in the wall. The body of the deceased was found clad only in underwear, lying partly on the floor with the left arm over a chair. There were large blood stains on the bed linen, and the underclothing on the deceased was blood stained. The evidence satisfactorily established that the body had been dead more than twelve hours.

On the previous Friday, March 23d, about noontime, the defendant had purchased a 32-20 calibre Spanish revolver from a second-hand dealer. At the time she made this [3 Cal.2d 672] purchase she stated that she and her husband were going on a trip and wanted a gun. She was shown a 25 Colt automatic which she rejected, stating she "was not used to automatics". She signed an application for the Spanish gun, paid a deposit and returned for the gun the next day a little before noon. She received the gun and a few shells, the remains of a broken package. About noontime Saturday she took the Spanish gun to a hardware store and asked for some shells that could be fired from it. She was told that the gun would have to be repaired before it could be fired. She thereupon purchased a 32-20 calibre Colt revolver and shells. She did not have sufficient money with her to pay the bill of $31 and said she would have to get more money from her husband. About three- quarters of an hour later she returned with the money. She then explained that she and her husband wanted the gun for target practice on a week-end trip to Frazier Mountain Park and did not want to wait the required 24-hour period before she could have possession of the gun. At the store she called up the police department and asked for two persons by name, who were not available. She then went to the upstairs telephone and when she came down she reported that "Lew" had authorized her to take the gun. She left the shells for the Spanish gun at this store and departed with both guns, and shells for the Colt revolver, in her possession.

At 8 o'clock on Saturday evening the defendant sat in the lobby of the apartment house where she and her husband resided. The caretaker testified that he had a conversation with her in which he asked where her husband was. She replied in substance that he was out and might be home at 10, or 12, or 1, or 2, or not at all. That he said in a manner of "kidding", "What, another woman?" to which she replied, "Yes, another woman". About ten minutes past ten her husband came into the lobby, spoke to the caretaker, and then passed into their apartment without speaking to his wife. She followed him into the apartment. The record indicates that that was the last time Eric D. Madison was seen alive.

That night about fifteen minutes to 12 loud, sharp noises or "cracks" which sounded like pistol shots were heard by several of the other residents of the apartment house. Several people gathered in the hall in the vicinity of the Madison [3 Cal.2d 673] apartment looking for the source of the sounds. Some testified that they heard five shots with an interval of a few seconds before the last four, and others testified that there were six shots, with such an interval. It was in evidence that in this interval an agonizing scream was heard. The occupant of the apartment adjoining the Madisons' apartment testified that the sounds seemed to originate right outside her door, and that besides the scream she also heard some moans or groans at the termination of the succession of "cracks" or shots. The jury could believe from the evidence that the vocal sounds referred to were made by a man's voice. Others testified that the shooting was "right down the hall", meaning in the direction of the Madison apartment. The manager commenced a check-up of the apartments. She knocked on Mrs. Madison's door and asked if she had heard the shooting and whether she was all right, to which Mrs. Madison answered in the affirmative. Mrs. Madison then came out of the room into the hall and pulled the door shut behind her. She said the noise was down underneath her. She joined the others in the hall. She also made the statement that "perhaps it was from an automobile passing; that just last week an automobile had gone by with a girl screaming for help; that it was a weird place to live in and most anything was liable to happen". The defendant appeared calm and serene. She was asked if she was afraid and answered "No," and that her husband would be home in about ten minutes.

The Warner Brothers studio was situated in the neighborhood about 500 to 1,000 feet distant from the apartment house. The deceased had been employed in the coffee shop of the studio, from which he usually returned home about 6 o'clock. The defendant was occasionally employed at the studio. That Saturday night the studio was engaged in taking a gun shooting scene in a certain film and the shooting of guns was noticeable about 1,000 feet away. Work had continued on that picture that night until about midnight. It was also in evidence that animals and fowl were kept on the studio premises; that peacocks sometimes gave shrill cries or screams; that such sounds were often heard from the studio and that frequently the neighborhood did not settle into quiet until past midnight, but that the witnesses were not disturbed by the sounds coming from the studio. [3 Cal.2d 674]

The fears of those who had gathered in the hall of the apartment house on the night of March 24th were finally allayed by the suggestion of one of the men that the noises perhaps emanated from the Warner studio.

Mrs. Madison was seen leaving her apartment at half-past 8 the next morning dressed for the street, and carrying a paper wrapped parcel. About the same time and later during the day there was seen hanging on the door of her apartment a sign which read, "Please do not disturb. I will get my laundry later." No one else was seen to leave or enter the Madison apartment until about a quarter to 4 that Sunday afternoon. At that time two persons carrying a suitcase called on the manager of the apartment house and stated that Mrs. Madison had arranged to reserve an apartment for one of them. The manager had not so been informed and they proceeded to Mrs. Madison's room. The "please do not disturb" sign was on the door. The manager received no response to her knock and opened the door with her passkey. The body of Eric D. Madison was discovered in the condition hereinbefore described.

About midafternoon of the following day three officers arrived at the Cuddy ranch, eleven miles west of the Ridge Route highway in Kern County. They found the defendant sitting on a suitcase behind the clothes in a clothes closet off the bedroom, with a coat placed over her knees. The officers testified that Cuddy, who had been drinking during the week-end, said: "Nellie, why didn't you tell me it was murder?" The defendant had arrived at the Cuddy ranch on Sunday alone. Cuddy testified that on Monday afternoon he and the defendant were sitting in the living room and he asked her what was the matter, to which she replied that she had had "a little trouble" with her husband and expected the officers to come after her; that about twenty minutes later when the officers appeared in the driveway she said, "Here they come now." When she was found in the clothes closet she explained that she had been changing her shoes.

The sales slips for the guns purchased by the defendant were found in her purse and the Spanish gun and some cartridge shells, wrapped in brown wrapping paper, were found in her car. The Colt revolver purchased by her was never found. [3 Cal.2d 675]

The defendant testified. She explained that she had purchased the guns at her husband's suggestion because he had been threatened and because they wanted to use them on a trip to Arrowhead or the Cuddy ranch; that on Saturday night when he came in he did not take off his clothes but prepared to leave again to see a man from Bakersfield about a job, and that if he did not come back that night she should meet him on Sunday at the Cuddy ranch where he would stop on his way from Bakersfield; that she had given him the two guns in a package on Saturday afternoon when then were out driving and he had put them in a pocket of the car; that she could not identify photographs introduced in evidence depicting the body found in her apartment, and that she believed Eric D. Madison was still alive.

Only the salient facts and some of the testimony in support of the jury's verdict have been stated. Those facts and testimony require an affirmance of the judgment unless the record shows that claimed erroneous rulings of the court, if error, have resulted in a miscarriage of justice.

[1] The defendant contends that the court erred in giving an instruction on the subject of the accused's flight from the scene of the crime. There was sufficient in the testimony which, if believed by the jury, constituted a foundation for the giving of an instruction conformably to the provisions of section 1127c of the Penal Code. The trial court gave such an instruction, which was the only instruction permitted by the section.

[2] The defendant relies on State v. Moxley, 102 Mo. 374 [14 S.W. 969, 15 S.W. 556], to support her contention that the court should have given a requested instruction that the defendant was entitled, in addition to the ordinary presumption of innocence, to the equally favorable presumption, arising from the marital relation, that a wife loves her husband. The court was not in error in refusing to give the requested instruction. The jury was fully instructed on the subjects of the presumption of innocence and reasonable doubt, which were all the instructions on presumptions to which the defendant was entitled. (Pen. Code, sec. 1096.) [3] This also answers the contention that the court, in addition to the instruction provided by said section 1096, should specifically have instructed the jury that the presumption of innocence attaches to every stage of the case and to every [3 Cal.2d 676] fact essential to a conviction, and that it is a presumption that abides with the defendant throughout the trial of the case. The defendant concedes that the instruction provided in section 1096 of the Penal Code was read to the jury. This was all the defendant was entitled to on the subject. (Sec. 1096a, Pen. Code; People v. Williams, 96 Cal.App. 215 [273 P. 1087].)

[4] The court did not err in refusing to instruct the jury that it required twelve of their number to agree on a verdict whether of the offense charged "or of a lesser degree". The jury was otherwise properly instructed on the matter. There was no evidence offered upon which the jury, if it believed the defendant committed the homicide, could base a verdict of guilty of a lesser crime than murder of the first degree. In this case the defendant cast her all on the chance of obtaining a verdict of acquittal.

[5] Pursuant to section 1105 of the Penal Code the court gave the following instruction: "The court instructs the jury that up to the moment when the killing is proved, the prosecution must make out its case beyond a reasonable doubt. When the killing is proved, its devolves upon the defendant to show any circumstances in mitigation to excuse or justify the homicide by evidence on his part; that is, the killing being proved, the defendant must make out his case in mitigation, or to excuse or justify it by some proof strong enough to create in the minds of the jury a reasonable doubt of his guilt of the offense charged, unless, as before stated, the proof on the part of the prosecution tends to show the crime committed only amounts to manslaughter, or that the defendant was justified or excused in doing the act." The defendant cites People v. Post, 208 Cal. 433 [281 P. 618], in support of her contention that the giving of that instruction constituted reversible error. In that case an instruction pursuant to the same section was given which told the jury that when the killing is proved, it devolves upon the defendant to show any circumstances in mitigation to excuse or justify "by a preponderance of the evidence on his part". That is, the killing being proved, "the defendant must make out his case in mitigation to excuse or justify by some proof stronger in some appreciable degree than the proof of the prosecution. The burden of proof changes. It must be in some degree, no matter how small, [3 Cal.2d 677] stronger than the proof of the prosecution on the other side." The giving of the quoted portion of the instruction was held reversible error in that case. There can be no similar criticism of the instruction given in the present case. The latter instruction in fact conforms to the precepts expounded in the case relied upon. The only similarity between the instructions is the omission in each of the words of section 1105 of the Penal Code that the commission of the homicide "by the defendant", being proved, etc. It was not held in the cited case that the failure to include those words constituted prejudicial error. In fact, the contrary was indicated. While we disapprove the failure to include in the instruction the full language of section 1105 in that respect, we nevertheless conclude that in the light of other instructions given the jury was not misled.

[6] The defendant was entitled to the special instruction requested to the effect that circumstantial evidence must produce a reasonable and moral certainty that the accused, "and that no other person", committed the offense charged. The court gave the instruction on the subject of circumstantial evidence which was criticised as deficient in the same respect, i. e., by the omission of the words in quotation marks, in the case of People v. McClain, 115 Cal.App. 505 [1 PaCal.2d 1085]. The failure to give the quoted portion of the requested instruction is defended by the statement that the case does not rest entirely on circumstantial evidence. But what evidence is considered direct evidence of the slaying by the defendant is not pointed out. However, an examination of the entire record points unerringly to the conclusion that, had the requested instruction been given, the jury would not have arrived at any different conclusion.

[7] The further criticism of the given instruction that it contained matter which could be construed as comment upon the facts in evidence is without merit. The matter complained of was merely definitive in character to illustrate the distinction between direct and circumstantial evidence.

[8] There was no error in the criticised instruction given on the subject of motive. The defendant claims that an instruction that proof of motive was nothing more than a circumstance to be considered by the jury, is erroneous, because evidence of want of motive has an affirmative character favorable to the defendant. In the same instruction the [3 Cal.2d 678] court stated that absence of proof of motive is equally a circumstance in favor of the accused.

[9] The defendant attacks several rulings of the court in the introduction of evidence and examination of the witnesses. The court, over the objection of the defendant, permitted the prosecution to attempt to impeach the defendant's testimony as to her knowledge and use of firearms, by examination as to a circumstance designed to show that the defendant had previously possessed firearms and had before witnesses shot at a former husband. The court also permitted the prosecution to introduce prior contradictory statements of fact in that regard contained in a verified complaint for divorce filed by the former husband, who was called by the prosecution to give the impeaching testimony. It is contended that the claimed purpose of impeachment of the defendant's testimony by contradictory evidence was ostensible only and that in fact the prosecution sought to impeach the defendant by inadmissible evidence of particular wrongful acts. (Code Civ. Proc., sec. 2051.) The question of the purpose of the testimony was before the trial court and while the contention of the defendant might be considered arguable, nevertheless as the testimony tended to contradict the defendant's testimony in the respect noted, we cannot say that the court erred in admitting the evidence for that purpose. [10] Nor can we say that the court erred in permitting the state to show the prior sworn contradictory statements of its own impeaching witness when it expected the witness to testify in accordance with the statement of facts contained in his verified complaint. In any event, inasmuch as the same evidence was elicited by independent testimony, the introduction of the prior sworn statements, if erroneously admitted for the purpose of permitting the state to impeach its own impeaching witness, was without prejudice.

Other contentions that prejudicial error was committed in the rulings of the court on the admission of evidence to impeach the defendant's testimony have been examined and are found to be without merit.

[11] The defendant claims further that error was committed by the trial judge's testifying in the case as a witness for the prosecution. The judge's testimony related to the time which elapsed between taps made by a witness [3 Cal.2d 679] to indicate the interval of time between the two groups of shots heard by her on the night of March 24th. The interval did not appear in the record and the trial judge had timed it. The trial judge was a competent witness to testify what that interval was. (Sec. 1883, Code Civ. Proc.) Nor is there any merit in the contention that the trial court exceeded its proper function in taking a part in the examination of some of the witnesses.

[12] Various specifications are made of claimed prejudicial error in permitting certain witnesses, including the ballistic expert and a mortician, to testify to certain facts. An examination of these claims indicates clearly that they are without substantial foundation.

[13] Although we cannot give sanction to the practice of exhibiting unnecessarily to the jury gory physical evidences of the crime which are calculated or likely to inflame the jury's deliberations, nevertheless we cannot say that the exhibition during the trial of the bed and bedding from the Madison apartment necessarily was beyond propriety or had that effect. [14] The questions whether the exhibit should remain and was needed to substantiate and illustrate the expert and other testimony as to the shots fired and whether it would tend to inflame the jury to the prejudice of the defendant, were questions addressed in the first instance to the discretion of the trial court, and no abuse of the exercise of that discretion is shown. There is no basis for the contention that the verdict of the jury was the product of any inflammation or prejudice caused by this exhibit. [15] Nor can we discover any error in the court's permitting the removal of retouching evidences on a photograph of the deceased taken in his lifetime, and the restoration of the negative as far as possible to its original condition. There was no evidence that any altering of the negative took place other than the elimination of removable substances used in the retouching by the person who originally made the photographs.

[16] The contention is made that pursuant to the provisions of subdivision 6 of section 1181 of the Penal Code the trial court should have modified the judgment so as to indicate that the defendant was guilty of murder of a lesser degree. The exercise of the power of the trial court or of this court thus to modify the judgment without granting [3 Cal.2d 680] or ordering a new trial is dependent upon the presence of some evidence tending to prove that the defendant, if he is guilty of any crime, is guilty of a crime of a lesser degree than the crime of which he was convicted. There is no evidence in the record, nor was any offered, upon which to base the modification requested.

The other specifications of error are lacking in merit. The record discloses that the defendant had a fair and impartial trial, singularly free from anything upon which to predicate a charge of prejudicial error. The evidence is sufficient to support the verdict, and on the record the court is not justified in disturbing the judgment.

The judgment and order are affirmed.

Thompson, J., Waste, C.J., and Curtis, J., concurred.