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Arthur
R. EGGERS
Status: Executed by
asphyxiation-gas on October 15,
1948
History.com
October 15, 1948
Arthur Eggers, who was convicted of
killing his wife, Dorothy, because of her alleged promiscuity, is
executed in the gas chamber at San Quentin Prison. He probably would
have gotten away with the crime had the investigators not received a few
lucky breaks.
In January 1946, hikers came across a woman's body,
wrapped in a blanket, in a very remote area of the San Bernardino
Mountains in California. The head and hands had been chopped off--making
identification very difficult--but the body had only been lying there
for less than a day, so there was still hope.
When investigators noticed that Dorothy Eggers had
been reported missing by her husband around the time that the corpse was
found, they decided to follow through on the lead, despite the fact that
the initial report described her as being thinner and taller than the
unidentified body. Upon talking with her doctors, detectives discovered
that Eggers had been treated for a bunion on her foot, which matched the
one on the body.
Although investigators knew the identity of the body
and had good reason to be suspicious of Arthur Eggers, they had no
evidence to connect him to the crime. But when Eggers happened to sell
his car to a police officer, the cop noticed that there were spots of
dried blood in the trunk, and, in 1946, Eggers was arrested. A
subsequent search turned up pieces of his wife's flesh, a gun and a
handsaw in Eggers' home. Pieces of tissue, bone and fat were found on
the gun.
[Crim. 4761 Cal Sup Ct Oct., 3, 1947]
THE PEOPLE, Respondent,
v. ARTHUR R. EGGERS, Appellant.
EDMONDS, J.
Arthur R. Eggers has been convicted of
the crime of murder of the first degree and sentenced to death. The
proceedings to be reviewed include not only the trial upon the merits,
but also the hearing in regard to the issue presented by his plea of not
guilty by reason of insanity and the motion for a new trial.
On the morning of January 2d, the
headless, handless torso of a woman, wrapped in a blanket and tied with
a rope, was found in a ravine off a mountain highway in San Bernardino
county. The discovery was given newspaper publicity the same afternoon.
Later in the afternoon, or early in the {Page 30
Cal.2d 681} evening of the same day, Eggers, a clerk employed in
the office of the sheriff of Los Angeles County, filed a report stating
that Dorothy Eggers, his wife, was missing. According to this report,
Mrs. Eggers last had been seen three days before at about 9 a. m.
The body, subsequently identified as
that of Dorothy Eggers, had two bullet wounds, one of which penetrated
the heart and caused death. The missing head and hands were never
recovered.
It appears that at the time of the
homicide Eggers and his wife, with two of her young nieces, lived in
Temple City, a suburb of Los Angeles. He was assigned to duty in the
Temple City substation of the sheriff's office. A room in the back of
the house was rented to one Loomis, who had occupied it for more than
two years.
Eggers told the jury that his marriage
to Dorthy had been a happy one until two years before her death. She
then informed him, he declared, that she was starting the change of life
and subsequently she had been difficult to get along with. He also
mentioned having heard rumors that his wife had gone to dances and
picked up men, but because he trusted her he "did not give it much
thought."
Just prior to her "disappearance,"
Eggers and his wife had an argument about Christmas presents. She
reproached him for not getting a present for Loomis and called him a "cheap
skate," but she "had a mad on."
At about the same time, as Eggers
related the events, Dorothy told him that the certificate showing
ownership of their automobile had been burned accidentally. He obtained
an application for a duplicate certificate which he "got her to sign"
although "she was reluctant" to do so. The title to the car was in her
name, and she also signed a power of attorney, which he prepared,
authorizing him to transfer or otherwise deal with the automobile. His
explanation of the reason for wanting the change in title was that she
had been involved in two accidents and he wished to protect his interest
in the automobile if she was "killed or something."
Witnesses other than Eggers testified
that they had last seen Dorothy alive on the morning of December 28th.
As a witness in his own behalf, Eggers stated that on December 29th he
went to work at 5 p. m. and returned home at approximately 1 a. m. on
the following morning. As he came near his home, he heard the front door
slam and saw a man, after {Page 30 Cal.2d 682}
coming from the house, walk hurriedly down the street. Eggers entered
from the rear of the house, and upon turning on the lights found his
wife standing without any clothes on in their bedroom.
As he related to the jury what then
occurred, he told his wife, "Well, I am going to fix that old Doc from
ever coming back here again." He grabbed a gun out of the chiffonier and
Dorothy stepped into the hallway to intercept him. He tried to get out
toward the front door and she struggled with him. After some struggling,
they worked their way to the bathroom. "I was trying to shove her away,"
he declared, "and she was trying to pull me, and then we both fell in
the bathroom and the gun went off."
According to his testimony, Eggers only
remembers one shot. He next found himself "sitting on the toilet seat,
crying and scared, and then I know I got in the car, and somebody else
was in that car and kept saying, 'She is in back, she is in back.' " But
he could not identify the other person. He drove out to Long Beach where
he stayed until daylight. He then returned home, went to his bedroom and
slept. His explanation as to why, after he shot his wife, he did not get
a doctor for her, was: "I do not know whether she was hurt badly, or
hurt at all, but I got an idea she was shot, and the next thing I know I
was in the car."
Testimony offered by the State shows
that the day after the body was discovered, Eggers went to San
Bernardino "to look at it." He called at the sheriff's office there, but
after some discussion with the deputy in charge, left without viewing
the body. Before returning to Temple City, he telephoned to his brother-in-law
in Los Angeles, and, being unable to reach him, had the call transferred
to his own home where he talked with Loomis. He told Loomis to call the
brother-in-law and tell him that the body was not that of Mrs. Eggers
because the feet were too large; they "were as big as Garbo's."
He told Loomis he had seen the body,
when he had not done so, Eggers explained, because he did not want
anyone to know that he had been given the "brush-off" by the shesriff's
office. In response to his inquiries, he testified, he was informed that
the body could not be that of his wife for it measured 58 inches from
the shoulders to the soles of the feet. Eggers said that his wife was 5
feet, 5 inches tall. Upon another occasion he fixed her height as 5 feet,
2 inches. Other evidence tends to prove that she was 5 feet, 7 or 8
inches, in height. {Page 30 Cal.2d 683}
At one time Eggers told the Sheriff of
San Bernardino County that the body was that of his wife, and he would
claim it for burial, if he were in a position to do so. But, at the
trial, he insisted that he believed her to be alive.
On January 4th, Eggers sold his wife's
engagement and wedding rings to a jeweler for $10, using an assumed name
and giving a fictitious address. His explanation of this action was that
he knew his fellow employees in the sheriff's office were suspicious of
him, and if his wife's rings were found at his home "it would implicate"
him. At one time he stated that he found the rings in a bureau drawer
after her "disappearance"; previously he told the officers that he
removed the rings from her body after the fatal shot.
One witness testified that on January
3d, she had seen Eggers working on the back of his automobile. He
appeared to be cleaning the baggage compartment.
The record shows that two weeks later
Eggers sold the car to one of the deputies in his office. The buyer
noticed that the registration certificate was in the wife's name and,
knowing of the missing person report, he asked Eggers how the car could
be transferred without her signature. Eggers replied that she was
available and he would get her signature; everything would be all right.
Marie, the eldest of Dorothy's nieces living at the Eggers home,
testified that he asked her to go to the Division of Motor Vehicles with
him and sign her aunt's name to the papers. To comply with this request,
she practiced writing Dorothy's name several times, but Eggers finally
signed his wife's name to the ownership certificate and obtained another
one in the buyer's name. After Eggers was arrested, the certificate
showing that the car was owned by Mrs. Eggers was found among her
effects.
Expert witnesses testified that
although it appeared that the trunk compartment of the automobile had
been cleaned recently, small spots of human blood were found in it.
Human blood was also found in some grease on the floor of the garage at
the Eggers' residence and in the bathroom of the house.
Eggers was arrested on January 22d, and
statements were taken from him. In one of these statements he wrote out
the directions to follow to find the place where he had thrown his gun
and also a saw which, the prosecution maintains, was the instrument used
in severing the head and hands from the body. {Page
30 Cal.2d 684}
The blanket in which the body had been
wrapped was identified as one belonging to Eggers. The gun and saw were
found by following the directions given in his statement. Upon the gun
there was a fatty, greasy substance and human blood. There were also
numerous bits of tissue, bone and fatty debris. One piece of bone, a
rather large fragment, was forcibly wedged between the clip and frame.
A ballistics expert testified that the
bullets found in the body of Mrs. Eggers were fired from this gun. The
saw bore the initials "A E," which appeared to have been there for some
time. Eggers told the jury that he found the gun and saw in the "screen
room" at his house several days after his wife had been shot, and
because he felt they had been placed there by someone to "frame him" for
the murder, he disposed of them.
Upon this evidence, the jury returned a
verdict of guilty of murder of the first degree, without recommendations
as to the punishment to be imposed. The court then ordered that the
issue as to the sanity of Eggers be submitted to the same jury. But
before the sanity hearing commenced, the trial judge was informed by one
of the jurors that she "had a closed mind" upon the question. And the
jury foreman "practically served notice" upon him "that if the same jury
were retained it would be a hung jury." The jury was then dismissed and
another jury impaneled to hear the sanity issue because, in the judge's
opinion, "the members of the jury have disregarded the instructions we
gave them about discussing the sanity of the defendant on the first
issue." The hearing proceeded notwithstanding the objections of counsel
for Eggers, who moved for a mistrial. Following the overruling of
objections and denial of the motion, the jury found that Eggers was sane
at the time of the commission of the crime.
The judgment is challenged upon four
grounds. First, it is contended, the evidence is insufficient to support
a conviction of murder in the first degree. Second, the court erred
prejudicially to the substantial rights of the accused in instructing
the jury. The third point relied upon for reversal is that the procedure
followed in impaneling a second jury for the determination of the issue
of sanity rendered the trial upon the merits a mistrial and the
subsequent hearing a nullity. Lastly, Eggers claims that the argument of
the district attorney before the jury was unfair and prejudicial to him
in the determination of the degree of the crime. {Page
30 Cal.2d 685}
Several recent decisions of this court
are relied upon to support his contention that if his own testimony is
not worthy of belief and was disregarded by the jury, then the only
proof is that Dorthy Eggers was killed by him, presumably in an unlawful
manner. Under such circumstances, he argues, there is not a single fact
which affirmatively shows (1) that he shot his wife with malice
aforethought (2) that he possessed an abandoned and malignant heart, or
(3) that he acted intentionally, willfully and with premeditation, and
he is guilty of no more than murder in the second degree.
Murder is defined as "the unlawful
killing of a human being, with malice aforethought." (Pen. Code, § 187.)
To constitute murder of the first degree (Pen. Code, § 189) the homicide
must have been perpetrated "by means of poison, or lying in wait,
torture, or by any other kind of willful, deliberate, and premeditated
killing" or one committed in the perpetration of certain enumerated
felonies.
[1] It is "the exclusive province of
the jury to determine from the evidence whether the killing was the 'willful,
deliberate and premeditated' act of defendant." (People v. Wells, 10
Cal.2d 610, 624 [76 P.2d 493].) However, "as is true as to all factual
issues resolved by a jury, the evidence upon which the determination is
made is subject to review on the question of its legal sufficiency to
support the verdict." (People v. Holt, 25 Cal.2d 59, 90 [153 P.2d 21].)
[2] This court may not, in reviewing the evidence, substitute its
judgment for that of the jury, and, where there is substantial evidence
in support of the jury's verdict, its determination must be upheld. (People
v. Holt, supra; People v. Smith, 15 Cal.2d 640 [104 P.2d 510]; People v.
Wells, supra; People v. Rico, 180 Cal. 385 [181 P. 663]; People v.
Mahatch, 148 Cal. 200 [82 P. 779].) [3] Conversely, to justify the
reversal of a judgment of conviction, the record must clearly show that
the evidence could not be interpreted as supporting the verdict. (People
v. Tedesco, 1 Cal.2d 211, 219 [34 P.2d 467].)
[4] Applying these rules, the evidence
justifies the conviction of Eggers for murder of a first degree if it
shows that the killing was the result of a willful, deliberate and
premeditated intent to kill. But express evidence of a deliberate and
premeditated purpose to take life need not be shown. Deliberation,
premeditation and willfulness may be inferred from the proof of such
facts and circumstances as will furnish a reasonable foundation for such
a conclusion. (People {Page 30 Cal.2d 686}
v. Smith, supra, p. 647; People v. Cook, 15 Cal.2d 507, 514 [102 P.2d
752]; People v. Dale, 7 Cal.2d 156, 159 [59 P.2d 1014]; People v.
Machuca, 158 Cal. 62, 64 [109 P. 886]; People v. Mahatch, supra, p.
202.)
[5] When there is no direct evidence in
regard to the means by which the homicide was accomplished, it does not
support a verdict of murder in the first degree unless proof of intent
is shown by the surrounding circumstances. [6] No rule can be laid down
as to the character or amount of proof necessary to show deliberation
and premeditation; each case depends upon its own facts. These elements
of murder in the first degree may not be inferred from the killing alone,
but are matters of fact, which cannot be implied as matters of law. [7]
However, the nature of the weapon used, or acts of malice which, in the
usual course of things, would cause death, or great bodily harm, tend to
provide a reasonable basis for a conviction of murder in the first
degree. [8] In arriving at the intention of the defendant, regard should
be given to what occurred at the time of the killing, if indicated by
the evidence, as well as to what was done before and after that time. (People
v. Cook, supra.) [9] Here, the record establishes more than the fact
that Dorothy Eggers was unlawfully killed by her husband, and from the
evidence as to the relations between Eggers and his wife up to the time
of the homicide, the type of weapon employed, its condition when found,
the means of disposing of the body, the efforts made to prevent
identification, and his conduct both prior to and immediately after the
crime was committed, the conclusion of a deliberate intention to kill is
fairly deducible.
It is only the testimony of Eggers
which tends to show lack of premeditation. The jury apparently rejected
his explanation of how the killing occurred and in doing so refused to
accept the "portions of the evidence as might have tended to show lack
of premeditation, when weighed against other evidence adduced to the
contrary. The jury was justified in accepting such portions of
defendant's testimony as appealed to it, and in rejecting those portions
it did not believe." (People v. Smith, supra, at p. 648.)
Eggers refers to People v. Kelley, 208
Cal. 387 [281 P. 609], where the crime was reduced from murder of the
first degree to manslaughter. But there the decedent "was killed under
circumstances tending to show an accidental or unpremeditated killing."
(People v. Murphy, 1 Cal.2d 37, 40 [32 P.2d {Page
30 Cal.2d 687} 635].) The evidence tended to prove that the
victim died while engaged in a voluntary debauch with the defendant and
the fatal injuries appeared to be the natural result of the orgy. In
People v. Howard, 211 Cal. 332 [295 P. 333, 71 A.L.R. 1385], "the record
was destitute of evidence tending to establish the circumstances and
conditions actually existing prior to and at the time of striking the
fatal blow" if the defendant's statement was disregarded. (People v.
Mendez, 27 Cal.2d 20, 29 [161 P.2d 929].) But neither of these cases is
here in point because the physical facts and circumstances concerning
the death of Dorothy Eggers provide ample evidence from which the jury
could conclude, beyond a reasonable doubt, that the killing was willful,
deliberate and premeditated.
[10a] Nine assignments of error are
made concerning the instructions to the jury. Eggers first contends that
it was prejudicial error to state that every killing perpetrated by
means of torture is murder of the first degree. It was erroneous to give
a definition of torture, he asserts, because the evidence presented
against him is insufficient, as a matter of law, to prove that the death
of Dorothy Eggers was accomplished by torture. He does not question the
textual correctness of the instruction, but he asserts that the giving
of any instruction upon this subject "amounted to a statement to the
jury that there was evidence before it from which killing by torture
might be found and made the basis of a verdict carrying the death
penalty." The evidence does not show sufficient facts, he concludes,
from which it can be inferred that Dorothy Eggers died as the result of
torture.
[11] It is error to give an instruction
which, although correctly stating a principle of law, has no application
to the facts of the case. (People v. Roe, 189 Cal. 548, 558 [209 P.
560]; People v. Silver, 16 Cal.2d 714, 722 [108 P.2d 4]; People v.
Mandell, 48 Cal.App.2d 806, 817 [120 P.2d 921].) To charge the jurors as
to an issue not predicated upon some theory logically deducible from the
evidence presents for consideration a question not properly determinable
by them. [12] However, the giving of such an instruction does not
justify a reversal of the judgment unless it is affirmatively shown that
the error would prejudice the rights of the defendant. [10b] In the
present case, considering his admissions and the evidence tending to
prove that the killing was willful, premeditated and deliberate, the
record clearly shows {Page 30 Cal.2d 688}
that the defendant suffered no prejudice. Accordingly, there is no error
justifying a reversal of the judgment. (Const., art. VI, § 4 1/2.)
[13] Eggers also argues that the
following instruction is misleading and erroneous: "The law does not
require demonstration or that degree of proof which, excluding all
possibility of error, produces absolute certainty, for such degree of
proof is rarely possible. Only that degree of proof is necessary which
convinces the mind and directs and satisfies the conscience of those who
are bound to act conscientiously upon it." It is asserted that the use
of the word "conscience," in effect, told the jury to "let your
conscience be your guide" and ignore the rules of reasonable doubt and
burden of proof. The instruction, says Eggers, "leaves the whole
decision to conscience." But it has been held that such an instruction,
given in conjunction with one defining reasonable doubt, is not
erroneous. (People v. Derenzo, 46 Cal.App.2d 411, 416 [115 P.2d 858].)
In the present case reasonable doubt was defined in the language of
section 1096 of the Penal Code. The challenged instruction refers to a
degree of proof "which convinces the mind and directs and satisfies the
conscience." By the two instructions, read together, the jurors were
told that each of them must satisfy his conscience as to the guilt of
Eggers and be convinced, beyond a reasonable doubt, as to his guilt.
[15] Complaint is also made of the
following instruction which relates to the time for deliberation: "The
law does not undertake to measure in units of time the length of the
period during which the slayer must deliberate and premeditate or ponder
over the killing before he has formed the intent to kill. The true test
is not the duration of the time but the extent of the reflection.
Thoughts may follow each other with great rapidity and cold, calculating
judgment may be arrived at quickly. It is for you to say from all the
evidence in this case whether or not the defendant premeditated the
slaying of Dorothy Eggers, if you find from the evidence beyond a
reasonable doubt that he did kill her." {Page 30
Cal.2d 689} Eggers takes the position that under the law as
stated in People v. Honeycutt, 29 Cal.2d 52 [172 P.2d 698], and People
v. Bender, 27 Cal.2d 164 [163 P.2d 8], the instruction was prejudicially
erroneous. However, this is not the "repeatedly criticized stock
instruction" which, in the Honeycutt case, this court held was erroneous.
To say that "thoughts may follow each other with great rapidity and cold
calculating judgment may be arrived at quickly" is not the same as
saying that one "may premeditate the moment he conceives the purpose."
Indeed, the instruction here challenged shows that it was carefully
prepared to meet the requirements recently laid down by this court in
the Honeycutt and Bender cases. As was said in the Honeycutt case, "the
jury may be told that the brain can function rapidly [but] they must not
be misled into thinking that an act can at the same time be hasty,
hurried, and deliberate or impulsive, unstudied, and premeditated." (People
v. Honeycutt, 29 Cal.2d 52, 60 [172 P2d 698].) Moreover, "deliberation"
and "premeditation" were properly defined in other instructions.
[16] Eggers also complains of the
court's failure to give certain instructions which he proposed. One,
upon the subject of conjecture or surmise, was sufficiently covered by
another requested by him, stating the law in this regard. [17] The same
is true as to one relating to the effect of disbelief of the testimony
of a witness.
[18a] An instruction requested by
Eggers to the effect that extrajudicial statements made by him could not
be used for purposes of impeachment if they were induced by threats,
menace or promises of reward, was also refused. The law in regard to
such statements was not stated to the jury, but the evidence did not
require it to be included in the charge to the jury. No extrajudicial
statements of Eggers amounted to a confession. [19] In fact, he denied
his guilt or any connection with the death of his wife until he became a
witness in his own behalf, and the rules as to proof of the voluntary
character of extrajudicial statements apply only with respect to
confessions (People v. Fowler, 178 Cal. 657, 664 [174 P. 892]) or to
statements which include an important incriminating fact. (People v.
Nagle, 25 Cal.2d 216, 223 [153 P.2d 344]). [18b] The principles
applicable to the extrajudicial statements made by Eggers are fully
stated in the general instructions as to credibility of witnesses.
Furthermore, {Page 30 Cal.2d 690} his
testimony does not show that any of such statements was made because of
threats or menace. The promise that if he confessed he would be sent to
Mendocino was allegedly made by Jones and Rotchford, two defense
witnesses, and the conversations of Eggers with them are not in evidence.
[20] Eggers also declares that the
theory of his defense was ignored by the refusal to give an instruction
requested by him concerning killing in the heat of passion or with
considerable provocation. But, as he related the circumstances, the
shooting was accidental. At no time has he asserted that he shot his
wife in the heat of passion or with provocation. The refusal to give the
instruction was, therefore, not error, and the instructions given
defining voluntary manslaughter sufficiently covered the subject. [21]
And, for reasons which have been stated, an instruction directing the
jurors that they could not find Eggers guilty of murder in the first
degree was properly refused.
Considering the procedure which
followed the determination of the issue presented by the plea of not
guilty, the record shows an unusual situation. After the trial judge was
informed by one of the jurors that she had "a closed mind" upon the
issue of insanity and the foreman declared that no verdict would be
returned if the same jury was retained, the judge called counsel into
his chambers. He explained what had occurred and stated that "in the
interest of the defendant, the State and ... the taxpayers ... it would
be better to dismiss this jury and impanel another one." The judge also
stated that, notwithstanding the juror's denial, he believed that in
deciding the issue of guilt, the question of insanity had been discussed,
contrary to his admonitions. Counsel for Eggers objected to the
dismissal of the jury, declaring that he would move for mistrial and
request a new trial.
The jury was dismissed over these
objections. Motions for an order declaring a mistrial and a new trial
were denied and a new jury was impaneled to determine the insanity issue.
Counsel for Eggers thereupon objected to the introduction of any
evidence as to his sanity upon the grounds that the court was without
jurisdiction because (1) it had erred in dismissing the former jury and
(2) it should have declared a mistrial for misconduct of the first jury.
This objection was overruled. Following the presentation of evidence,
{Page 30 Cal.2d 691} Eggers was found to
have been sane at the time of the commission of the crime.
[22] Counsel does not now press the
point that there was any misconduct on the part of the first jury. In
fact, he concedes that the trial judge was not justified in concluding
that his order to the jurors directing them not to consider the sanity
of Eggers had been disobeyed. This position is required by the law. "The
presumption is that the jury performed their duty with fidelity to their
oath, and that they observed the admonitions of the judge as to their
conduct, and this presumption can be overthrown only by showing some act
of positive misconduct." (People v. Kramer, 117 Cal. 647, 649-650 [49 P.
842].) In the face of the positive denial by the juror that the
admonitions of the trial judge had been disobeyed, there is no basis for
a conclusion that there was any actual, much less prejudicial,
misconduct. The motions for a new trial and for an order declaring a
mistrial were, therefore, properly denied. (Code Civ. Proc., § 657; Pen.
Code, § 1181.)
But a further point urged on behalf of
Eggers is that, although there was no misconduct upon the part of the
jurors, they were dismissed because of the assumed misconduct. To
dismiss the jurors, it is argued, after they were directed to try the
second issue, was beyond the court's jurisdiction, and an acquittal is
in order since "jeopardy has attached" when the jury has been sworn and
it stands charged with the deliverance of the defendant.
[23] It is true that the determination
of the issues presented by the pleas of not guilty and not guilty by
reason of insanity, constitute but one trial. (People v. Marshall, 209
Cal. 540, 547 [289 P. 629].) But it is a single cause with separate
issues to be tried separately (People v. Leong Fook, 206 Cal. 64, 76-77
[273 P. 779]), and error in the trial of the issue of sanity does not
entitle the defendant to a retrial upon the issue presented by the plea
of not guilty. (People v. Messerly, 46 Cal.App.2d 718, 720 [116 P.2d
781]; People v. Mallette, 39 Cal.App.2d 294, 300 [102 P.2d 1084]; People
v. Lamey, 103 Cal.App. 66, 70 [283 P. 848].) The dismissal of the jury
did not, therefore, affect the validity of the determination of guilt.
[24] Although judgment cannot be pronounced upon the verdict as to the
issue of not guilty until the sanity of the defendant has been
determined, the first verdict will {Page 30 Cal.2d
692} not be set aside upon the basis of alleged error occurring
after the trial of the first issue is completed. (People v. Marshall,
supra, p. 548.)
[25] Section 1026 of the Penal Code
authorizes a separate trial upon the issue of insanity and specifically
authorizes the court, in its discretion, to retain or dismiss the jury
which tried the first action. The direction to retain the first jury is
denominated an order Code Civ. Proc., § 1003) and every court has power
to amend and control its orders so as to make them conformable to law
and justice. (Code Civ. Proc., § 128, subd. 8.) Unquestionably, the
trial court was invested with jurisdiction to make an order retaining
the jury, and it must be conceded that it has jurisdiction to modify,
revoke, or set its orders aside. (Imperial Beverage Co. v. Superior
Court, 24 Cal.2d 627 [150 P.2d 881]; Harth v. Ten Eyck, 16 Cal.2d 829
[108 P.2d 675]; De la Beckwith v. Superior Court, 146 Cal. 496 [80 P.
717]; Burbank v. Continental Life Ins. Co., 2 Cal.App.2d 664 [38 P.2d
451]; Struck v. Superior Court, 138 Cal.App. 672 [32 P.2d 1110]; City of
Los Angeles v. Oliver, 102 Cal.App. 299 [283 P. 298].) The rule as
stated in De la Beckwith v. Superior Court, supra, (p. 499), is as
follows: "It is a most common occurrence for a trial court to change its
rulings during the progress of a trial, upon questions of law, and no
one would contend that it is not within its power to do so, or that it
should not do so when satisfied that the former ruling was erroneous."
The ruling that the same jury be retained to try the insanity issue
occupied no better position in this regard than any other determination
and, under the circumstances shown by the present record, the court was
fully justified in revoking it.
[26a] In a supplement to his opening
brief, Eggers contends that the trial was so infected with unfairness
caused by the prosecution's arguments that the jury was swayed by
prejudice in fixing the degree of the offense. The basis for this
conclusion is that the arguments before the jury by the prosecution as
to torture were "entirely predicated on the unwarranted theory that
pieces of bone were found on the gun" and this conclusion has no factual
basis in the evidence.
The technical director of the
Scientific Crime Investigation Laboratory of the Los Angeles Police
Department testified that he found "tiny fragments of bone tissue" as
well as deposits of fat, tissue and human blood upon the gun. He
{Page 30 Cal.2d 693} made a
spectrographical analysis of a small fragment of the bone "to determine
whether or not it contained the elemental constituents of bone." Calcium,
magnesium, and borum, and a trace of copper, elements consistent with
the composition of bone, were found. He stated that phosphorus was not
shown in this analysis, and although phosphorus is present in all bone,
he "would have had to use a larger sample" to demonstrate its presence.
From this testimony it is argued that the test did not show human bone.
The testimony of the expert was the
basis of the argument of the district attorney. "It is the province of a
district attorney to state to a jury the various conclusions that he
draws from the evidence, and to make it clear to the jury what
conclusions in his opinion should be drawn from the evidence introduced,
so long as he keeps within the scope of conclusions which may properly
be drawn." (People v. McKenzie, 12 Cal.App.2d 614, 615-616 [55 P.2d
1200].) "The right of counsel to discuss the merits of a case, both as
to the law and facts, is very wide, and he has the right to state fully
his views as to what the evidence shows, and as to the conclusions to be
fairly drawn therefrom. The adverse party cannot complain if the
reasoning be faulty and the deductions illogical, as such matters are
ultimately for the consideration of the jury." (People v. Sieber, 201
Cal. 341, 355-356 [257 P. 64.) [27] In the argument before the jury, any
reasonable inference may be drawn from the evidence, and it is a matter
within the discretion of the trial court to determine whether counsel
stays within the permissible range of discussion. (People v. Hoyt, 20
Cal.2d 306, 318 [125 P.2d 29].) [26b] Assuming that, giving effect to
these rules, counsel "illogically deduced" that a finding of torture
could be inferred from the evidence, at least in the absence of
objection, it does not amount to misconduct which has prejudiced
defendant's rights.
The judgment and the order denying a
new trial are affirmed.