Volume I : October 13-22, 1942

L. A. No.__________

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF CALIFORNIA,
SECOND APPELLATE DISTRICT.

THE PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
vs.
GUS ZAMMORA, JOSE RUIZ, HENRY YNOSTROZA, VICTOR ROBERT THOMPSON, HENRY LEYVAS, YSMAEL PARRA, ANGEL PADILLO, JOHN Y. MATUZ, EUGENE CARPIO, VICTOR SEGOBIA, ROBERT TELLES, MANUEL DELGADO, JACK MELENDEZ, JOSEPH WILLIAM VALENZUELA, ANDREW ACOSTA, BENNY ALVAREZ and MANUEL REYES,
Defendants and Appellants.

APPEAL FROM THE SUPERIOR COURT OF LOS ANGELES COUNTY,
HON. CHARLES W. FRICKE, JUDGE.

REPORTERS' TRANSCRIPT ON APPEAL.

VOLUME 1.

APPEARANCES:

The State Attorney General,
For the Plaintiff and Respondent.

George E. Shibley, Esq.,
707 Heartwell Building, Long Beach, California,
Attorney for Defendants and Appellants Acosta, Carpio, Reyes, Telles, Thompson and Valenzuela;

Ben Van Tress, Esq.,
725 Washington Building, Los Angeles, California,
Attorney for Defendants and Appellants Ruiz, Padillo, Parra and Matuz;

Defendants and Appellants Leyvas, Segobia, Alvarez, Delgado, Melendez, Ynostroza and Zamora, in pro per.

E. R. PERRY and
G. J. KENNELLY,
Official Reporters.

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA,
IN AND FOR THE COUNTY OF LOS ANGELES.

Department 43.
Hon. Charles W. Fricke, Judge.

THE PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff,
vs.
GUS ZAMMORA, JOSE RUIZ, HENRY YNOSTROZA, VICTOR ROBERT THOMPSON (alias Bobby Lavine), HENRY LEYVAS, YSMAEL PARRA (alias Smiles Parra), ANGEL PADILLO, JOHN Y. MATUZ, JOE CARPIO, VICTOR SEGOBA, EUGENE CARPIO, ROBERT TELLES, RUBIN ROBERT PENIA, DANIEL VERDUGO, EDWARD GRANDPRE (alias Eddie Grande), MANUEL DELGADO, JACK MELENDEZ, JOSEPH WILLIAM VALENZUELA, ANDREW ACOSTA, JOE HERRERA, RICHARD GASTELUM (alias Richard Galardo), LUPE OROSCO, BENNY ALVAREZ, MANUEL REYES, et al.,
Defendants.

No. 90344.

REPORTERS' TRANSCRIPT.

APPEARANCES:

For the People: Clyde C. Shoemaker, Esq., and John Barnes, Esq., Deputies District Attorney of Los Angeles County;

For Defendants Zammora, Penia, Ynostroza, Alvarez and Melendez, Phillip S. Schutz, Esq.;

For Defendants Ruiz, Parra, Padillo and Matuz: Ben Van Tress, Esq.;

For Defendants Leyvas, Segoba and Grandpre: Anna Zacsek;

For Defendants Joe and Eugene Carpio and Verdugo: David Ravin, Esq.;

For Defendants Herrera and Orosco: Harry Hunt, Esq.;

For Defendant Delgado: A. P. Coviello, Esq., and

For all other defendants: Richard F. Bird, Esq., Deputy Public Defender of Los Angeles County.


1

TUESDAY, OCTOBER 13, 1942; 9:30 O'CLOCK A. M.

THE COURT: People vs. Zammora and others.

MR. BARNES: Ready, your Honor.

MR. BIRD: The defendants are ready, your Honor.

THE COURT: The clerk may call a jury.

(The impanelment of a jury was thereupon commenced.)

MISS ZACSEK: May I interrupt just a moment, your Honor?

THE COURT: I understand Miss Zacsek has a matter in Department 41. She is representing the defendants Leyvas and Segoba.

MISS ZACSEK: And Edward Grandpre.

THE COURT: And Edward Grandpre.

MISS ZACSEK: I would like to make a motion at this time to associate Mr. Bird with me in the representation of those three clients. If the court will grant that motion my clients will agree, I am sure.

THE COURT: Is that satisfactory, Henry Leyvas?

DEFENDANT LEYVAS: Yes.

THE COURT: Mr. Segoba?

MISS ZACSEK: Is that satisfactory to you, Mr. Segoba?

DEFENDANT SEGOBA: Yes.

THE COURT: Mr. Grandpre?

MISS ZACSEK: Is that satisfactory to you, Mr. Grandpre?

DEFENDANT GRANDPRE: Yes.


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MR. BIRD: That is just, of course, during counsel's temporary absence?

THE COURT: Let the record show while Miss Zacsek is attending to other matters in another department, Mr. Bird will represent these defendants for the time being.

MISS ZACSEK: May I have that association throughout this case, your Honor?

THE COURT: Yes.

MR. BIRD: I might not agree to that after the starting of the taking of the evidence, but during the selection of the jury it is perfectly agreeable. There may be a conflict of interests which will prevent me from doing so.

THE COURT: The association will continue until it is discontinued. It may be withdrawn by Mr. Bird at any time.

MR. BARNES: May we inquire if that substitution is for all purposes in the case or only during her absence?

THE COURT: Only during her absence.

MISS ZACSEK: Unfortunately, I have to be in a certain place for a certain time for another case, and I ask Mr. Bird to represent me during those moments.

MR. BARNES: It is all right with me. I just wanted to know if it were for all purposes.

THE COURT: It is only for the purpose of during such times as Miss Zacsek may be actually absent.

MISS ZACSEK: Yes.


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THE COURT: The record may so show.

(Further proceedings towards impanelment of a jury.)

THE COURT: I think we will take our recess at this time. All jurors in the courtroom will remember you are not to talk about the case, and do not form or express any opinion. In other words, keep your mind free and open so the only impression you get regarding this case is from the evidence you hear in the courtroom. The witnesses and everybody else will remain seated until all the jurors have left the courtroom. Return here at 1:45.

(Whereupon a recess was taken until 1:45 o'clock p. m. of the same day, Tuesday, October 13, 1942.)


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TUESDAY, OCTOBER 13, 1942; 1:45 O'CLOCK P. M.

THE COURT: The record will show all parties present.

MR. SCHUTZ: At this time, if the court please, I move the association of Mr. Bird, the Public Defender, as to the defendants I represent, to-wit, Henry Ynostroza —

THE COURT: We will have to get their consent to it.

MR. SCHUTZ (Continuing): — Gus Zammora, Rubin Robert Penia, Jack Melendez and Benny Alvarez, for the purpose of taking my place and acting in my stead during the time I will be absent in another department, pursuant to the understanding with Miss Zacsek's clients, with the same arrangement prevailing, that the Public Defender may withdraw from the association at such a time as he suggests or states.

THE COURT: I take it, that stipulation covers the period in which we are selecting a jury?

MR. SCHUTZ: Yes, your Honor.

THE COURT: Is that satisfactory to you boys?

(Answer in the affirmative by all defendants referred to.)

THE COURT: The record will show each of the defendants consents to the association of Mr. Bird during the period of selecting a jury. You may proceed.

(Further proceedings towards the impanelment of the jury, and during the afternoon session of October 15, 1942, the following proceedings were had:)


5

THE COURT: Do you want to take that matter up, Mr. Schutz, as to Mr. Coviello?

MR. SCHUTZ: Yes. At this time, representing the defendants I —

MISS ZACSEK: Your Honor, I suggest, since I have been guilty of being tardy too, that I associate with him for the purpose of having —

THE COURT: For the purpose of being tardy?

MISS ZACSEK: No, your Honor, for the purpose of carrying on. I think such an arrangement would be helpful to all parties, and certainly would expedite the matter of this court. I should be very happy to do that.

THE COURT: You can make that arrangement and we will carry it out all right. I want to be sure, however, we do not have to hold up the parade every time we have a recess, waiting for somebody to come in.

MR. COVIELLO: If your Honor please, I have been discussing —

THE COURT: At this time I understand Mr. Schutz wants to make a motion with reference to his clients and also with reference to the defendant Delgado.

MR. SCHUTZ: At this time I move to associate Mr. August Coviello with me in the defense of the clients I represent in this proceeding, during its entirety.

THE COURT: I will say, so the boys understand it, this means that the boys that are represented by Mr. Schutz are


6
also going to have Mr. Coviello for their attorney, and Mr. Delgado is also going to have Mr. Schutz for his lawyer; both lawyers for each and all of them. I am going to ask you boys to answer whether it is all right. I will call your names and you can say if it is all right. Henry Ynostroza?

DEFENDANT YNOSTROZA: Yes.

THE COURT: Mr. Zammora?

DEFENDANT ZAMMORA: Yes.

THE COURT: Rubin Robert Penia?

DEFENDANT PENIA: Yes, sir.

THE COURT: Mr. Delgado?

DEFENDANT DELGADO: Yes, sir.

THE COURT: That is all right, Mr. Melendez?

DEFENDANT MELENDEZ: Yes, sir.

THE COURT: Mr. Alvarez?

DEFENDANT ALVAREZ: Yes, sir.

THE COURT: That takes care of it. Let the record show all the defendants represented by Mr. Schutz and Mr. Coviello are now represented by both Mr. Schutz and Mr. Coviello.

MR. BARNES: I understand, from our standpoint, your Honor, that this is for all purposes of the trial?

THE COURT: For all purposes of the trial. There was an arrangement made with reference to some of the other clients — I won't take the time to take care of it, but you can take care of that at 3:45 if there is any arrangement


7
to be made with regard to the others.

MR. BARNES: So I may not have a misunderstanding, your Honor, I assume that that will have its natural consequence in connection with the matter of cross examination and also argument.

THE COURT: Well, I think —

MR. BARNES: Particularly cross examination.

THE COURT: I think we still have a situation where there would be an opportunity afforded for both cross examination and argument by both counsel.

MR. BARNES: Well,—

THE COURT: In other words, if "A" and "B" are defendants and two lawyers are representing both "A" and "B", one can cross examine for "A" and the other can cross examine for "B", and argue likewise.

MR. BARNES: I am wondering about that.

THE COURT: I haven't any doubt.

MR. BARNES: When "A's" lawyer "X" cross examines for him, he is also being cross examined for "B"?

THE COURT: Not necessarily.

MR. BARNES: Well, perhaps not. I haven't gone into that.

THE COURT: "A" might want to cross examine on subject matter "X", and then "B" might want to cross examine on subject matter "Y".

MR. BARNES: Just so long as I know where I am, that is


8
all.

MR. SCHUTZ: You are in Department 43 now.

THE COURT: If any person is going to have any trouble, the court is going to have the trouble, and I will take care of that.

MR. BARNES: I was just interested so I would not be making senseless objections. So I understand this rule covers the separation of subject matters and there won't be a duplication either of subject matters or —

THE COURT: No, I don't think we are going to have any unnecessary cross examination. I do not think we are going to run into that trouble. If we do, I will take care of it. So far as the daily transcript is concerned, the court will order a copy of the daily transcript for each counsel.

MISS ZACSEK: Thank you, your Honor.

THE COURT: And also one for the District Attorney.

MR. SHOEMAKER: May I inquire if Miss Zacsek has been associated with Mr. Coviello?

MISS ZACSEK: No, I am trying to do it.

MR. SHOEMAKER: That was before he got into the courtroom.

THE COURT: We will take care of it at 3:45.

(Further proceedings were thereupon had in regard to the impanelment of a jury.)

THE COURT: I think we will take our recess at this time. All jurors keep in mind you are not to talk about the case or form or express an opinion. Take a recess at this


9
time until 9:30 tomorrow morning.

(The jury thereupon left the courtroom.)

THE COURT: Do you want to take care of this association of counsel situation now?

MISS ZACSEK: May we pass that up until tomorrow morning, so we may have a little more time to think about it, your Honor?

THE COURT: Make up your mind. We will recess until tomorrow morning and see what the situation is.

(Whereupon an adjournment was taken until Friday, October 16, 1942, at 9:30 o'clock a. m.)


10

FRIDAY, OCTOBER 16, 1942; 9:30 O'CLOCK A. M.

THE COURT: In the case on trial the record will show the defendants, the jury and counsel present.

(Further proceedings in regard to impanelment of a jury.)

THE COURT: Defense peremptory.

MR. BIRD: I pass, your Honor.

MR. VAN TRESS: Pass.

MR. SCHUTZ: We accept the jury as now constituted.

MR. RAVIN: Pass.

MISS ZACSEK: Pass.

MR. BARNES: The People will pass their peremptory challenge.

THE COURT: The clerk will swear the jury thus far examined.

(Jury thereupon sworn to try the cause.)

THE COURT: In view of the possible duration of the trial, the court will direct the clerk to draw the names of three alternates.

(Proceedings were thereupon had in regard to the selection of three alternates.)

THE COURT: That seems to have exhausted the number of jurors we have. We are so close to the end of the day we could not get very far by continuing. I think we will take our recess at this time.

I want to say, particularly to those jurors who are now


11
in the box, and I will include Mrs. Terhune in that,— as far as those who are now in the box are concerned, you are the basic jury in this particular case. During the entire trial you will govern yourselves with the idea in mind that you are the judges of this case; any information you get about the case should be information you get here in the courtroom and nowhere else; do not talk about it and do not discuss it. I know it is a natural thing, when you get home, for somebody to say, "What kind of a case are you on? What is it all about?" and so on. You just tell them you have a hardboiled judge on the job who won't let you talk about the case, and tell them, "If you want to take it out on anybody, it is all right to take it out on the judge." If you see anything in the papers which has to do with this general proposition, please do not read it. Let us try this case in such a way that when we get through with it the verdict will express the honest and conscientious judgment of each individual juror; it is going to be a verdict he is going to stand by, one he is not ever going to be ashamed of, and there is not going to be any criticism of his conduct during the course of the trial. There is one thing I am going to suggest. Do not talk to any attorneys and do not talk to any of the witnesses in the case; do not talk to people around the corridors; go right on through when coming to the courtroom. The reason I mention that is that every once in a while we have an
12
unfortunate experience in which a juror, perfectly innocently I know,- they don't mean to do it,- California is a very sociable place, and we do not want for introductions, we stop and talk to people,— they are good Californians and we like them, but we run into this situation: It may so happen the person you are talking to so innocently may be a witnesa and may be an important witness to one side or the other, and then somebody may come in and say, "I saw Juror So and So talking to one of the witnesses." Then we have an embarrassing situation. I think you know what I am driving at. We can avoid it by being a little cautious during this trial. Take a recess now until 9:30 Monday morning.

(Whereupon an adjournment was taken until Monday, October 19, 1942, at 9:30 o'clock a. m.)


13

MONDAY, OCTOBER 19, 1942; 9:30 O'CLOCK A. M.

THE COURT: In the case on trial the record will show the jury thus far chosen and examined, counsel and defendants present. You may call two additional jurors, Mr. Clerk.

(Three alternate jurors were duly selected and sworn.)

THE COURT: We will take our morning recess at this time. The jurors will keep in mind the admonition which will be given you in more or less abbreviated form, perhaps, during the course of the recesses that we have. But during all recesses, whenever we have a recess, when you are outside the jury box itself, do not discuss the case, do not talk about it, do not form or express any opinion as to the guilt or innocence of any defendant or defendants, keeping in mind that the first time when you are at liberty to arrive at a conclusion as to guilt or innocence is when you retire to the jury room for the purpose of deliberating upon your verdict.

I might say for your information and counsel's that due to the death of Judge Bellard we will recess at our noon recess until tomorrow. In other words, we will not have an afternoon session. Take our morning recess at this time.

(Recess.)

THE COURT: I think we should have the indictment read.


14
I wonder if in the reading of the indictment we could get along without reading that entire list of names which means very little at the present time to the jury, perhaps.

MR. BIRD: I suggest that the clerk read the first name and say "and others", to include all the rest.

MR. SCHUTZ: We will join in that suggestion.

MISS ZACSEK: So stipulate.

MR. BARNES: We will stipulate also.

THE COURT: Just read the charging part of the indictment, if you will, Mr. Clerk.

(The clerk read the indictment.)

THE COURT: Before we proceed with the more formal part of the trial, the court would like to call the jury's attention to a few matters which I think may be of assistance to have mentioned at the outset and which, inevitably, would be brought to the jurors' attention when the occasion arises. I have already mentioned about the subject of objections.

Now, sometimes we have a situation in which a question has been asked and the court has ruled that it is not a proper question. Sometimes a question of that sort may suggest an idea or the possibility that something exists. You must not draw any inferences from the asking of the question that the matter suggested by the question may or may not be true. In other words, if a question is asked and not answered, you are to strike out the entire matter from your mind entirely. In the trial of a case the


15
attorneys on both sides question the witnesses and ask those questions which they desire to have answered. However, it sometimes happens that some question is not made entirely clear; the attorney may think he has brought it out, he may understand it, but it may not be clear to the jury or to the court. When that situation arises it is perfectly proper for the judge to ask a question, a proper question, and a juror may, after securing the court's permission, have a question to put to a witness. So if you run across a situation in which a witness has testified and something is not entirely clear and you would like to ask a further question of the witness, if you will just let me know we will have the question asked provided, however, that neither a juror nor the court can ask a question unless it is within the rules. We may have an objection. I have had the experience where I asked a question and the attorneys objected, and I sustained the objection because it was good. Sometimes also evidence will get into the record, a question will be answered on the basis of physical evidence, will get into the record, and we will find out afterwards it should not have been. Our remedy for that situation is to strike the evidence out. And whenever any evidence is stricken out it is entirely removed from the record and must be entirely eradicated from your minds, and must not be considered for any purpose.


16

I have been asked by jurors, and I want to answer the question right now, I will say this: If the jurors desire during the course of the trial, you may make notes as little memory-refreshers, because we all realize, no matter how good our memories are, there are always times when we do forget things; there may be something you want to make notes of. You may make notes and you may even take them to the jury room with you for the purpose of refreshing your memory or for any other purpose.

I have already mentioned that you are not to talk about the case or form any opinion until the case is finally submitted. I would like to include in that this proposition: That if you should notice in the newspaper any reference to anything which is remotely connected in any way with the matters we are here trying, just simply pass them by, don't read them. It does not happen very often, but once in a while as jurors are leaving the courtroom and getting on the elevator somebody, who would be better engaged in doing something else, will start to talk and perhaps will talk about the case you are trying. If that happens just quietly inform them that you are a juror on that case and they are to desist from making any comments of that sort. If the party persists and there is an officer close by, report the matter to the officer; if not, report the matter to the court.

Where we try a case in which we have two or more persons, it


17
sometimes happens there are bits of evidence, and sometimes very substantial bits, which apply to one defendant and do not apply to another. A good illustration of that is,— I am not referring to this particular case, because I do not know whether it exists in this case, but sometimes, let us say, after the arrest has been made, a defendant makes some statement, may make it to an officer, may make it to some acquaintance or other, but that is something which concerns him only. Where a statement is made by a defendant it is not binding upon and does not affect the case of his co-defendant unless it is a statement which was made by him in the course of a conspiracy, in pursuance of the object of the conspiracy, or the other instance is where it has been acquiesced or agreed to by the other defendant or is made in the presence of another defendant and has not been denied by him. In all other instances where the statement of a defendant is evidence against himself alone, you want to be careful to consider that evidence only as to him and not as bearing upon the guilt of another defendant.

During the course of the trial occasion will arise for counsel and no doubt for the court to make certain statements in connection with the subject of the admissibility of evidence and so forth. These statements between court and counsel are not evidence, and are not to be considered by you. As a matter of fact, we may make this broad statement, what attorneys say and what the judge says is not


18
evidence in any sense of the word. The law also provides, and it is a very wise provision, I think, in a case that is likely to be somewhat extended, that both sides may make what are known as opening statements. These opening statements are made by the District Attorney before he introduces any evidence. After the State has introduced its evidence, the defense has the privilege of making an opening statement. Now, this opening statement by the attorney is not evidence, but it is a statement of what the attorney expects the evidence will show, and is made for two purposes. One, that the jury may get sort of a general idea what the case is about, so that when bits of evidence come in they may be able to fit them into the picture and understand their materiality, relevancy and importance. Another purpose is, so that the judge will have some information as to what the evidence will probably be so that he can intelligently rule upon objections. I may say this in connection with this subject, too, which may be important or may not: Sometimes bits of evidence will come in which seem at the time to have little or no importance, but which are very important.


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I am going to ask the jury to give us your very best attention so that you won't overlook some of these small matters. Basically, we have to assume that evidence as it comes in has its importance, and while it may seem a small factor, it may be the one big factor which will turn the case. I think members of the Bar in the courtroom will recall cases in which the ultimate question of guilt or innocence has turned on as small a thing as the particular direction of a bullet hole.

You may make your opening statement, if you have one, Mr. Barnes.

MR. BARNES: May it please the court, counsel for the defense, my associate, Mr. Shoemaker, and ladies and gentlemen of the jury —

I wonder if I might ask your Honor, prior to going into this opening statement, if it would be proper to use the diagrams that we expect the witness to testify about?

THE COURT: I take it, you are basically making an offer of proof of the diagrams referred to, which have been placed upon the wall or upon the board, have been prepared by somebody who went down to the vicinity, and the person was a surveyor, and as far as it is known they are accurate scale drawings so far as they cover the objects shown on the drawings?

MR. BARNES: Yes, your Honor.

THE COURT: We will mark the drawings for identification.


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The one showing the larger area which is on the board — I am talking about the one to your left now, Mr. Barnes — as Exhibit 1, and the one which shows greater detail as to the buildings, as Exhibit 2, both for identification only.

MR. BARNES: For the purposes of the record I have put a No. 1 and No. 2 on each map respectively, in a circle with blue pencil.

(Opening statement by Mr. Barnes.)

BERT McATEE, called as a witness on behalf of the People, was duly sworn and testified as follows:

THE CLERK: What is your name, please?

A Bert McAtee.

THE CLERK: M-c-A-t-e-e?

A That is correct.

DIRECT EXAMINATION

BY MR. BARNES:

Q Mr. McAtee, what is your business or occupation, sir?

A I am Deputy County Surveyor for the County of Los Angeles.

Q And how long have you been connected with the Surveyor's office?

A Since February the 2nd, 1928.

Q You have had experience in the past surveying various


21
plots of ground, the locations of buildings, and so forth, have you?

A I have.

Q Prior to testifying today did you inspect and measure and prepare the diagram marked "1" in this case —

A I did.

Q (Continuing) — which I now show you?

A I did.

MR. BARNES: I wonder if your Honor has any suggestions so that all may see this, about where to put it up?

THE COURT: Well, you might move the blackboard stand over and set it on that blackboard stand for the time being.

(Map placed on blackboard stand referred to.)

Q BY MR. BARNES: Mr. McAtee, did you prepare this document, Exhibit 1 for identification?

A I did.

Q Will you take the pointer, please, and tell us what is represented upon that diagram?

A To the extreme west is Atlantic Boulevard running in a northeasterly direction; from Atlantic Boulevard coming southeasterly there is a traveled road —

Q What is the composition of that road?

A I believe at some time it had a little gravel put on it; it is about 22 feet in width, leading through and into Slauson Avenue.


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Q Now, off that road, near the place marked "Sleepy Lagoon", there is another road; what is that?

A That is just, well, more — I would say just a garden road; it is not hardly a regular road; just merely in the use of travel has made a road there; it has never been graded in any manner.

Q What is the composition, just dirt?

A Just dirt.

Q The dirt in that part of the county is what? What would you call it? How would you describe it?

A Well, there are some sections of this which is adobe, and others from the river bed is a little sandy; I would say that the most of it was sandy.

Q Sandy soil?

A Sandy loam, yes.

Q Sandy loam. There is a little spot marked "Sleepy Lagoon." What is that?

A That is an old reservoir, and I think it is still being used. I noticed an irrigation flume coming through there, coming down along this traveled road, and then an outlet or two from the Lagoon, along about in this point here (indicating on diagram.)

Q Is there a cement reservoir there?

A Yes, sir, there is.

MR. SHOEMAKER: Will you keep your voice up so juror No. 12 over in the corner can hear you?


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A Yes.

Q BY MR. BARNES: Then, following the road which branches off the larger one at the "Sleepy Lagoon", where does that lead?

A That leads around to this collection of houses within the red circle.

Q Now, surrounding that road, in August of this year, did you notice whether or not garden truck had been planted in that general vicinity?

A In a space, not in the entirety, but a good part of it was in truck garden.

Q And the rest was what?

A Had been cultivated and some not planted as yet; general crops.

Q Then, you finally got down to the circle, and you have shown some houses there in the circle; is that correct, Mr. McAtee?

A That is correct.

Q To what scale is this map drawn?

A 1 inch equals 50 feet; that is, 1 inch on this diagram is equal to 50 feet on the ground.

Q I notice that the smaller traveled road marked on this diagram branches out at the place where the houses are in the circle; do those roads end there or do they go on?

A This road makes a loop around this collection of


24
houses, back into a road going into here (indicating) somewhere; then, there is a road going northerly and one going southerly. The one going to the south leads back to Slauson Avenue.

Q Now, calling your attention, Mr. McAtee, to the diagram marked Exhibit 2. Have you represented on that diagram in larger scale the matters shown within the red circle on Exhibit 1?

A I have.

MR. BARNES: That is all with that. I will set this down.

MISS ZACSEK: I would suggest that you leave that particular map there, Mr. Barnes, since I am going to do a little cross examining on it.

MR. BARNES: It will be here. I have not finished with the direct examination as yet.

MISS ZACSEK: I know. I merely thought that you might want to know I wanted to use that other map.

Q BY MR. BARNES: Now, calling your attention to the map marked Exhibit 2 for identification, Mr. McAtee, you have drawn certain things there. What are they, please?

A To the extreme east —

Q Perhaps, if you stood up on the steps the jurors and everyone could see better.

A To the extreme east I have indicated a house, also a house here, a fence from that house. The fence over there


25
goes a little farther, but I just merely showed the start of it. This is a wooden pump house.

Q And it is marked "Pump house", is it?

A It is marked "Pump house." This is a concrete water tank, and so marked.

Q About how tall was the tank?

A Oh, I would say —

Q That is, how high?

A The tank is 15 feet tall.

Q Proceed, if you will, please.

A Here we have two power poles, and those two power poles were connected with a platform some 20 feet above the ground, and on that platform was stationed transformers which —

Q That is marked "Power poles" there; is that correct?

A Marked "Power poles" here at this spot.

Q By a little arrow pointing to each of the poles?

A To each of the poles, is right.

Q Yes.

A Here in brown, Vandyke color, are traveled roads not very well defined on the ground as to width, merely —

Q Sort of trails, are they?

A Just from use, travel is the only thing that has made them into roads. I do not think they have ever been graded. At this point I have indicated a house and fence. There is a gate at this point — it is not marked "Gate",


26
but there was a gate opening in; a bunk house at this point, a fence going over here; up in here a toilet, a wooden toilet at this point, with a little shield out in front of it, of wood, a fence, and a bunk house at this point, so marked, "Bunk house." These are castor trees with a fence —

Q That have castor beans on them, is that the type?

A That is the type; and a gate leading into the courtyard here. A house so marked at this point. More castor trees out here, with a fence coming around, angling at that point, coming up here at another angle; a peach tree at the corner of this house; a house at this point, so marked,


27
with a little fence, with a garden in it. A peach tree at this point; two poplar trees, one here, and so marked, that have been trimmed down so there is practically no foliage on it. Just now a little foliage coming out of those parts. A house here, so marked, with a fence.

Q To what scale is that Exhibit 2 drawn?

A One inch equals 4 feet; one inch on this map is equal to 4 feet on the ground.

MR. BARNES: Cross examine.

CROSS EXAMINATION

BY MR. BIRD:

Q Mr. McAtee, did you notice one house out there that had some gourds and things by way of ornaments that the other houses did not have?

A No, I really did not.

MR. BIRD: That is all.

MR. VAN TRESS: Is that all?

MR. BIRD: That is all.

CROSS EXAMINATION

BY MR. VAN TRESS:

Q When you went out there to see this property you were asked, I take it, by the District Attorney or the police that they wanted certain things represented on that map?

A Why, they told me that —

Q Did they ask you whether or not they wanted certain


28
things represented on that map?

A They told me —

THE COURT: They told you what kind of map they wanted, didn't they?

A They told me the collection of buildings they wanted to embrace within the map.

Q BY MR. VAN TRESS: Now, you have indicated two power poles. Did you observe whether or not there were any other power or telegraph poles in that vicinity?

A That is all that I noticed.

Q Would you say at this time there weren't any others or you just did not look for them?

A I did not notice any others than those two.

Q You were asked, were you not, either by the District Attorney or the police officers, to indicate on the map the power poles, if you found them?

A Those two in particular were pointed out as being necessary on the map.

Q I see. And you thought because those two poles were pointed out as being necessary to the map, that is the reason you may not have noticed any others in the vicinity?

A It could have been the reason.

Q Now, on this other map, which is indicated as No. 1, you have stated that you could come down that road from Atlantic Boulevard; is that right?

A That is correct.


29

Q Toward the group of houses; is that right?

A Yes, that is correct.

Q And that you could continue right on through and come out on Slauson; is that true?

A Yes, in quite a roundabout road, you could.

Q It could be done?

A Yes; it could be done, yes.

Q There were roads there that provided anybody in the machine wanted to go out to Slauson they did not have to turn around to go back to Atlantic, but they could have continued through on; is that right?

MR. BARNES: Objected to on the ground it is not proper cross examination.

THE COURT: Sustained. The witness has limited himself to the matters testified to as shown by the diagrams.

Q BY MR. VAN TRESS: You testified on direct examination that there was a road, and it went around the houses and then went on out to Slauson; that is true, isn't it?

A That is true.

Q You testified on cross examination there was another road that went south, after you passed this group of houses; is that true?

A That was the road to Slauson Avenue, the one going south.

Q Were there two roads to Slauson or one?

A The one coming from Atlantic, you could follow


30
through there to Slauson Avenue, the one that had indication of having been graveled at some time.

Q How about the other one?

A You could get to Slauson if you would take the bumps.

MISS ZACSEK: What was that?

A I say, you could get to Slauson if you would take the bumps. The road was terribly rutted and cut up.

Q BY MR. VAN TRESS: Was the road rutted back this group of houses that you have indicated here?

A No, it was not.

Q No ruts at all?

A Well, after you left the Sleepy Lagoon and the group of houses there was some minor ruts in it but not bad.

Q Now, up to the northwest corner of this map, which is marked No. 2 for identification, People's No. 2 for identification, a house up there on the northwest corner how far is that house from Sleepy Lagoon?

A Well, I would have to refer to the other map to scale it.

Q That is all right. You do that so we can get the distance.

THE COURT: May I just suggest, in view of the fact we have the scale, that all we have to do is to apply a measuring device to the map and we can find any distance we want to?


31

MR. VAN TRESS: Well, I would prefer that the witness do it, your Honor. He is an expert and he is a surveyor.

THE COURT: Well, I thought maybe you could use a ruler. I did not know.

MR. VAN TRESS: I might have to bring that other map out. By the highway, going along the highway.

A By the highway.

MR. BARNES: If the court please, the witness has one question propounded —

MR. VAN TRESS: I will withdraw the question.

THE COURT: Reframe it, because I think your other question was not the same as the present.

Q BY MR. VAN TRESS: From the Sleepy Lagoon down to that first house up in the northwest corner of People's Exhibit No. 2 for identification, what is the distance by the road?

A Approximately 3000 feet.

Q All right. Now, taking the bunk house, which you have indicated on People's No. 2 for identification, the upper bunk house?

A This one?

MR. VAN TRESS: May we mark that — how will we mark that, your Honor, in order not to confuse it with the other?

THE COURT: Suppose we simply put No. 1 in for the time being.

MR. VAN TRESS: All right.


32

THE COURT: Suppose you just put a number "1" in there, Mr. McAtee.

MR. BIRD: Make it rather large, please.


33

A And this is No. 2?

MR. VAN TRESS: All right, mark the other No. 2, if you please.

MR. BIRD: May I ask the figures be made very large? I cannot read them from here.

THE COURT: I will give Mr. McAtee an opportunity to do that during the recess.

A Yes, sir, I will do that, with a blue pencil.

MR. VAN TRESS: What was the question, Mr. Reporter?

(Question read.)

MR. BIRD: Make your figures about an inch high.

Q BY MR. VAN TRESS: What was the distance then by the highway from what you have indicated on the map as "Sleepy Lagoon"?

MR. BIRD: Thank you, Mr. McAtee.

MR. VAN TRESS: The distance along the highway from what you have indicated, "Sleepy Lagoon" to the bunk house which you have numbered No. 1 on People's No. 2 for identification.

A Of No. 2?

Q Of No. 1.

A No. 1?

Q Yes. What was the distance from "Sleepy Lagoon" by the highway down through to bunk house No. 1?

A That is approximately 2900 feet.

Q Now, is that from "Sleepy Lagoon"?


34

A From "Sleepy Lagoon" to the bunk house No. 1.

Q All right. How far was it from the "Sleepy Lagoon" to bunk house No. 2?

A Well, about 2200 feet.

Q Now, will you take the next house immediately, the bunk house No. 2 — or mark it No. 3, please, the diagram which you have marked "House", which is immediately southeast of the bunk house, will you mark that No. 3?

A Yes, No. 3, yes, sir.

Q Will you tell us how far that was from Sleepy Lagoon by the highway?

A Well, I will say offhand about 2100 feet; that is an approximation.

Q Down in the lower corner where you have a power pole on the west side of that map, would you mind marking that 3-A?

A The one to the right or the left?

Q The one to the left?

A 3-A.

Q 3-A. How far is that power pole from bunk house No. 2?

THE COURT: You mean in a straight line?

THE WITNESS: You mean in a direct line, or about —

Q BY MR. VAN TRESS: In a direct line, yes?

A That is about 162 feet.

Q All right. Now, would you mind marking the other


35
power pole 3-B?

(Witness does as requested.)

Q BY MR. VAN TRESS: How far is that in a direct line from bunk house No. 2?

THE COURT: Will a steel tape help you, Mr. McAtee?

THE WITNESS: What is it?

THE COURT: A steel tape help you instead of a ruler?

A No, this is all right — I will take it now. (Measuring.) 64 feet.

Q BY MR. VAN TRESS: How wide is the road between power pole 3-B over to the house you have marked 3?

A You mean at this point?

Q Yes, how wide is that highway?

THE COURT: He is indicating directly north of 3-B.

A Approximately 9 feet.

Q BY MR. VAN TRESS: How far is 3-B from the nearest southerly edge of that highway?

A At this point, you say?

Q No, take 3-B and go north to the southerly edge of that road?

A The edge of that same highway?

Q Yes?

A 6½ feet.

Q Would you mind taking the next house which is to the northeast of the one marked 3, that one, and mark it 4?

(Witness does as requested.)


36

Q BY MR. VAN TRESS: What is the distance from Sleepy Lagoon by the highway to that house No. 4?

A Well, I will have to check a new distance here. You are involving me in too many distances. You mean in a direct line?

Q By the highway?

A Approximately 2600 feet.

Q Now, would you mind taking the house northeast of No. 4 and mark that No. 5?

(Witness does as requested.)

Q BY MR. VAN TRESS: How far is that from Sleepy Lagoon by the highway?

A 3900 feet.

Q Down at the bottom you have something marked there, water tank —

A Pardon me, just a minute.

Q Pardon me.

A I will change that statement. About 2730 feet to the house marked 5.

Q Now, will you mark that which is designated as the water tank with a No. 6?

(Witness does as requested.)

Q BY MR. VAN TRESS: How far was that from the Sleepy Lagoon by the highway?

A I think about 2750 feet.

MR. VAN TRESS: Is your Honor going to take the recess


37
at the usual time?

THE COURT: Yes, I think we will take our recess right now.

MR. BARNES: Before your Honor adjourns may we have the record show that these estimates of distances have been indicated by the witness by using — by estimating with a ruler on the maps, Exhibits 1 and 2?

THE COURT: A ruler and tape and the witness has, by his manner of testifying and his manner of making measurements, indicated that he is not giving accurate distances but approximate distances only.

MR. BARNES: That has been done not from memory, but from —

THE COURT: By computation.

MR. BARNES: Yes, your Honor.

MR. VAN TRESS: I think the witness should testify whether or not he is giving accurate distances. I do not think the statement is proper by court or counsel either.

THE COURT: Well, I think it was; I think it was perfectly obvious.

MR. VAN TRESS: We can bring it out on further cross examination. We have not finished with this witness as yet.

THE COURT: May we adjourn now, Mr. Van Tress, please?

We are about to take our recess until 9:30 tomorrow morning. In adjourning at this time we do so out of respect to the memory of Hon. Charles D. Ballard, a member of this


38
Superior Court who has recently passed on. There are a great many things that might have been said in honor of the memory of Judge Ballard, who served this County for many years and was a very able and capable jurist. In speaking for the bench, and speaking for myself personally, it is with a deep sense of regret we mourn his passing and feel that we have lost a very able judge, a very amiable and lovable citizen. We will adjourn until 9:30 tomorrow morning.

(Whereupon an adjournment was taken until Tuesday, October 20, 1942, at 9:30 o'clock a. m.)


39

TUESDAY, OCTOBER 20, 1942; 9:30 O'CLOCK A. M.

THE COURT: The record will show all parties present. You may proceed, Mr. Van Tress.

BERT McATEE, resumed the stand:

MR. VAN TRESS: If the court please, I want to make a motion to strike before we go further with this witness. On page 37 —

THE COURT: 37?

MR. VAN TRESS: Page 37, Volume 1 of the Reporters' Transcript. I should like to strike from the record the remark made by the court on line 8, the court stated, "A ruler and tape measure — a rule and tape" — we have no objection to that staying in, but I move to strike the balance.

THE COURT: Motion denied.

MR. VAN TRESS: "And the witness has, by his manner" —

THE COURT: Motion denied, Mr. Van Tress. I can read.

MR. VAN TRESS: I haven't stated — I stated beginning at line 8; that would be down to and including line 11.

THE COURT: Motion denied again.

MR. VAN TRESS: We make a motion to strike further the statement made by the court on page 37, at line 14, on the ground it is invading the province of the jury.

THE COURT: Motion denied. The record will further show


40
that in the presence of the jury the measurement was taken and a mathematical computation was made by the witness on the back of an envelope, and in the court's presence. Is that right, Mr. McAtee?

THE WITNESS: That is right.

THE COURT: You may proceed.

CROSS EXAMINATION (resumed)

BY MR. VAN TRESS:

Q Now, there is indicated on People's 2 for identification a place called "Pump House" down at the bottom of the map. Would you mind marking that with, I believe, No. 7?

THE COURT: Do you want the blue pencil again?

THE WITNESS: I have a pencil.

(Blue pencil handed by the court to the witness, who thereupon marks on diagram.)

Q BY MR. VAN TRESS: This People's 2 for identification, did you make that map yourself?

A I did.

Q Did you actually go out and survey this territory that it purports to represent, or did you use some other source of information upon which you based this map?

A I made a field survey.

Q You surveyed the field itself?

A I did.

Q And you made notes at that time of the accurate


41
distances?

A I did.

Q Do you have those notes with you?

A I have.

Q Have the distances which you have given been accurate or only estimates?

A Only estimates.

THE COURT: Just a moment, Mr. Van Tress. I think the question is too general. There have been some distances given which were definite distances and other distances which the witness himself testified were approximations only. But I do not think you can lump all measurements into one question and then ask for a yes or no answer.

MR. VAN TRESS: Well, if I may, your Honor, I am only proceeding on the statement made by the court that from the manner or the way in which this witness testified —

THE COURT: Mr. Van Tress, you will refrain from making any further comments on that subject. I ruled upon it yesterday and I ruled upon it three times this morning. The record shows what the witness' answers were. The record shows that in some instances he gave us definite distances, and the most of the computations, in response to your questions, were the result of his applying a ruler to the map and multiplying by the factor, the scale upon which the map was built. That is computation, if I understanding the meaning of the word. You may proceed.


42

Q Now, based on your measurements that you actually made yourself, and which are accurate, can you tell us whether or not the measurement that you made from Sleepy Lagoon over to bunk house No. 2, the measurement you gave yesterday, was accurate or an estimate?

THE COURT: Just a moment, Mr. Van Tress. You must first ask him, ask the witness whether he made a separate measurement of the distances.

Q BY MR. VAN TRESS: Did you make any separate measurements of any particular objects?

A From the Lagoon?

Q Yes?

A Well, the whole field survey ties in together, and I can get an accurate distance from any point.

THE COURT: I think what we are driving at, Mr. McAtee — pardon me, Mr. Van Tress — what we are trying to get at is this: Did you make a measurement, for example, starting with the Sleepy Lagoon and going from there measure directly to bunk house No. 2 and make that as a definite, separate figure?

A No. I checked it from previous scale distances and continued it on to the bunk house.

Q What you did was first survey, I presume, your roads to start as a foundation and you got your distance from there, and then you measured from a certain point to where these buildings were located, so that the


43
measurements regarding buildings and distances are with respect to one another and with respect to certain other points rather than by starting from the Sleepy Lagoon?

A Well, if I may, I could make an explanation how the survey was made on the map.

THE COURT: Yes, all right.

A We had a point which is, I believe, along about —

MR. VAN TRESS: Would you mark —

A (Continuing) — about this point here. That is known as point A on our survey —

MR. VAN TRESS: Would you mark —

THE COURT: Supposing you write the word "Point A" there.

A I will get that a little more accurate. Point A is at this point. Would you like a larger A in there so you can see it better?

MR. VAN TRESS: I beg your pardon?

THE WITNESS: Would you like a larger A in there —

THE COURT: No, I think we will leave it as it is. Is that the point of the beginning of your survey?

A The point of the beginning of our survey.

Q BY MR. VAN TRESS: Are you able to measure then accurately from that point?

THE COURT: Mr. Van Tress, please. Let us get the explanation of the manner in which he made the survey, which is our subject matter first. I do not want you to


44
go into all the details, but give us generally how you worked, starting with point A.

A We had a point C, which approximately split the road at this point, the traveled road, merely as a line sight, not as to distance. We had a point out along about this point, which was point D. D was also in the center line of this road.

THE COURT: Those are both sighting lines?

A Both sighting lines. From point A we turned off at various angles and distances to the corners of the building, to the fences, to the various objects that we have shown here on the disgram, we turned off from A. We had one or two intermediate points set in here that we had to move up to catch the buildings; also an intermediate point in here on the line between A and B that we set upon the transit to turn angles and distances, these various buildings.

THE COURT: Mr. McAtee, may I ask this question also: In making your survey it is not necessary to measure from each object to each other object?

A No.

THE COURT: That is the reason we have the science of surveying so that a man won't have to run around with a tape measure all the time.

A Yes, sir.

THE COURT: In other words, you can stand on the shore of a lake at several points and make a survey of the lake


45
and tell us exactly how big the lake was across without running the tape measure across?

A That is right. These distances were not all measured. They were taken as what is known as stadia measurements, that is at a known interval across with the transit with the given subjects on the level road, which is known as stadia distance.


46

THE COURT: When we get all through taking your field notes and putting them on paper, the comparative separation distances between the various objects corresponds to the scale upon which the map is made?

A That is correct.

THE COURT: In other words, if we want to find the greatest length of house No. 4, the longest way, we would simply put a ruler across there and find how many inches and multiply by the scale factor?

A That is correct. The buildings were accurately measured with a tape, the window openings and objects recorded and platted thereon.

THE COURT: All right, Mr. Van Tress.

Q BY MR. VAN TRESS: How far was it from "A" to "B"?

MR. BARNES: We submit, your Honor,—

THE COURT: He has already answered it is not a measured distance, Mr. Van Tress. That was merely a sighting line. In other words, if you — correct me if I am wrong, Mr. McAtee,— I might draw a sighting line from where I am to, say, where Mr. Van Tress is, or I might use as a sighting line the further end of that last window; I could use either one and have the same effect?

A That is correct.

THE COURT: As long as I am in a straight line?

A That is correct.

Q BY MR. VAN TRESS: Could you give me the accurate


47
distance between "A" and "Sleepy Lagoon", or would it be merely an estimate?

A I could give you the scale distance. How close would you want it?

Q How close can you give it?

A I can possibly give it within — you mean by the road or across as the crow flies?

Q Well, let us say you give it by the road and also in going across.

A To what point on the Sleepy Lagoon?

Q Take the point at Sleepy Lagoon that is nearest to the road.

A Yes, I think I can do that.

Q Do I understand you are able to give us it accurately now?

A I can.

Q Thank you, if you please.

A 2590-5 feet.

Q That is from point "A" to "Sleepy Lagoon"?

A That is correct, by the road.

Q In feet, how much was that?

A That is what I gave you, feet, 2590.5.

MR. BARNES: May I inquire, your Honor, if that is as the crow flies or by the road?

THE COURT: By the road, he said.

A By the road.


48

Q BY MR. VAN TRESS: What would the distance be from the Sleepy Lagoon, by the road, down to No. "3-A", that power pole, that is, if you can give it accurately?

THE COURT: Well, was that accurately measured at the time or would it be one that would require calculation?

A That is a calculation that has been made, and which I can give accurate distances for.

THE COURT: All right.

Q BY MR. VAN TRESS: Mr. Witness, may I ask that if you use the ruler which you are now using, will the result be accurate or will it be merely an estimate?

A No, it will be, I will say, within one-tenth of a foot.

Q It will be that accurate?

A It will be that accurate.

Q Thank you.

A Do you want the center of the pole or the edge of the pole?

Q Well, we will use the center of the pole.

A The center of the pole. 2604.4 to the center of the pole.

Q Will you take the pole "3-B"; how close is that to the Sleepy Lagoon, or that portion of the Sleepy Lagoon which is closest to the highway?

MR. BARNES: We submit, your Honor, the question is immaterial.


49

MR. BARNES: We submit, your Honor, the question is immaterial.

THE COURT: Sustained.

MR. VAN TRESS: I would like to make an offer of proof and give the reason for it. I will approach the bench, if I may.

THE COURT: This is cross examination, Mr. Van Tress. It is not your witness. At the present time he has testified to the fact that he made the diagram and he has given certain distances. Now you are asking questions which are immaterial to that testimony. Until we have something more in the record, it seems to me little details as to whether the measurement should be to the center of the pole or the edge of the pole, questions of that sort —

MR. VAN TRESS: Well, eliminate —

THE COURT (Continuing): — might or might not be material. Until it is shown to be material, the court is not going to spend a lot of time with these matters. Especially in view of the fact it has already been shown any distance could be ascertained any time during the course of the trial by merely applying a ruler to get the distance. I do not think there is anything at the present time indicating in any way the importance of distances to a fractional part of a foot.


50

MR. VAN TRESS: May I approach the bench or ask the jury be excused, to explain the purpose of it?

THE COURT: No.

MR. VAN TRESS: I want to make an offer —

THE COURT: I do not think there is any occasion at the present time.

MR. VAN TRESS: I would like to make an offer of proof.

THE COURT: If it becomes material later on, and the record so shows you can recall the witness for further cross examination.

MR. VAN TRESS: I can show the materiality of it right now.

THE COURT: The materiality of it does not appear from the record thus far. You may proceed, Mr. Van Tress.

MR. VAN TRESS: I cannot bring it out all at once.

THE COURT: I hope I am talking loud enough so that you can hear. I do not know whether you are doing this deliberately, but I do not want any more of it. You may proceed now.

MR. VAN TRESS: In order that I do not get myself in contempt of your Honor, I would like to ask about some more distances. Is your Honor ruling —

THE COURT: I haven't any objection to your asking for distances. But when I have ruled on a matter definitely, that ends it as far as I am concerned, and it should end it as far as you are concerned. You have been practicing


51
in these courts long enough to know you should not persist in something which you know is entirely improper. If it is in contempt of court you are doing it yourself.

Q BY MR. VAN TRESS: Can you give the accurate distance from the Sleepy Lagoon, that is, the point nearest to the highway, over to the house marked No. 3, showing at the point where you have a gate marked as the entrance to the house there?

MR. BARNES: The question is objected to on the ground it is indefinite. It cannot be ascertained whether counsel is now referring to a direct distance or a distance by the road.

THE COURT: I think you better reframe the question so as to clear this up.

Q BY MR. VAN TRESS: What would be the easiest to give, the direct distance or the distance as the crow flies?

MR. BARNES: That is objected to on the ground it is irrelevant and immaterial.

THE COURT: Sustained.

Q BY MR. VAN TRESS: Can you give us the distance down the road from the Sleepy Lagoon over to the house marked No. 3, at what appears to be a gate at the southerly part of that house; that is, house No. 3?

A This is the southerly part of it here, and I see no gate at this southerly part.

Q May I ask what this represents?


52

A That is a door.

Q A door in the house?

A Yes.

Q Can you give us the distance from the Sleepy Lagoon, that is the part nearest to the highway, over to that door which appears —

A Would you like your distance at right angles from the door to the road?

Q Use the distance — the distance from the Sleepy Lagoon at the point nearest to the highway, up to that house.

THE COURT: Let us find out what portion of the house, Mr. Van Tress.

MR. VAN TRESS: I have indicated the doorway in there.

THE WITNESS: The center?

Q BY MR. VAN TRESS: The southern portion of No. 3.

THE COURT: Now, the witness wants to know whether —

THE WITNESS: What part of the road?

THE COURT: (Continuing) — which portion of the road you want it measured from.

MR. VAN TRESS: I take it he would leave the Sleepy Lagoon and come down the highway —

THE COURT: I do not think you get the point, Mr. Van Tress. If you go from the Sleepy Lagoon and you wanted to enter that doorway, there are a lot of places you could leave the road. If you leave the road at a different point


53
the distance becomes different.

Q BY MR. VAN TRESS: Let us assume you leave the highway at this point, now, opposite "A" that you have indicated; how far would it be from the Sleepy Lagoon down to a point opposite "A"?

THE COURT: You mean directly north of "A"?

MR. VAN TRESS: Yes, your Honor.

THE WITNESS: You mean to go to the door?

Q BY MR. VAN TRESS: Yes.

THE COURT: The witness is now indicating an intersecting line at right angles to the southeasterly line of the house.


54

A 2627 feet and 6/10.

Q BY MR. VAN TRESS: Now, can you measure down the highway from the Sleepy Lagoon, the highway portion that goes to the highway, down to this portion in the highway, and then immediately north to show how far that door would be in bunk house No. 2 from the Sleepy Lagoon?

A Let's get together here. You think about —

Q That would be about right, yes.

MR. BARNES: We respectfully submit, your Honor, it is merely a matter of mathematical computation.

THE COURT: I think it is perfectly obvious, but, technically, Mr. Van Tress is within his right of cross examination. I think, however, it is consuming a lot of time unnecessarily, because these matters can be so easily ascertained when they become material.

A I understand what you want is the dimension from that point —

MR. VAN TRESS: Well, from Sleepy Lagoon.

A Well, I have a difference from the lagoon to "A."

Q Well, if you can estimate the distance from the Sleepy Lagoon, I don't object to the means, if you arrive at that distance, so that we can arrive at the distance.

A 2640.7 feet.

Q Now, that which you have marked "Water Tank No. 6", how far would that be from Sleepy Lagoon, that is the nearest portion of the highway to Sleepy Lagoon?


55

MR. BARNES: That question is objected to on the grounds it is incompetent, irrelevant and immaterial.

THE COURT: Sustained as apparently immaterial.

Q BY MR. VAN TRESS: How far would the distance be from Sleepy Lagoon down to what you have indicated by No. 7, which is the pump house?

MR. BARNES: Same objection, if your Honor please,—

THE COURT: Same ruling.

MR. BARNES: Immaterial.

Q BY MR. VAN TRESS: And will you number the house there next to No. 7 as No. 8?

(Witness does as requested.)

Q BY MR. VAN TRESS: How far would it be from Sleepy Lagoon, the nearest portion of the highway to Sleepy Lagoon down to the house which you have indicated as 8?

MR. BARNES: That question is objected to.

THE COURT: That question is double now, Mr. Van Tress. But suppose you give us the distance on the ground from point "A", the point of beginning, to house 8, if you will, Mr. McAtee, and then all we have to do is to use the figures.

MR. VAN TRESS: Was there a ruling on my question?

THE COURT: Yes, it was a double question and the court asked one which is now pending. My question is, the distance from the point of beginning, point "A", to the house No. 8.

THE WITNESS: What part of the house?


56

THE COURT: The nearest and most westerly corner of house No. 8.

A 77 feet.

Q BY MR. VAN TRESS: What is the distance from point "A" to the nearest point of bunk house No. 7?

A 54 feet.

Q What is the nearest point, that is from point "A", to the nearest point of the water tank No. 6? What is the distance from point "A" to the nearest point of point 6?

A 37.8 feet.

Q Would you mind marking that house which is next to No. 8 with a figure 9?

(Witness does as requested.)

Q Will you please indicate what the distance is from point "A" to the nearest point of the house marked No. 9?

A 126 feet.

Q Up in the northwest corner there is a house without any marking. Will you mind marking that No. 10?

(Witness does as requested.)

Q Can you give us the distance of that house No. 10 from Sleepy Lagoon coming down by the highway?

THE COURT: From what point on the highway?

MR. BARNES: We submit, your Honor, that is a mere matter of calculation from the points indicated, and it is immaterial.

THE COURT: No, I think we have a different situation


57
there because we haven't any point fixed on the highway opposite house No. 10. I wonder if you could give us that now, if you will pardon me, Mr. Van Tress, I think we can use it as a basic figure in reference to that, mark some point on the highway leading to Sleepy Lagoon and give us the distance from that point to Sleepy Lagoon and then we can measure from that distance to the house. Take a point on the map say at right angles to the steps of house No. 10, Mr. McAtee, about there, about the center of the highway.

(Witness does as requested.)

THE COURT: Suppose you mark that with an "X-1", just as an artificial, intermediate point, and give us the distance from Sleepy Lagoon to point "X-1."

A 2745 feet.

THE COURT: I think it might be a good idea, if there is no objection on the part of counsel, to put the figures "2745" directly above point "X-1" and use that as a measure or a starting point, if you want to make any measurements later on.

MR. VAN TRESS: Now, from point —

THE COURT: You wanted the distance, Mr. Van Tress, to the house, now to that point?

MR. VAN TRESS: Yes, from "X-1."


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A To the porch?

THE COURT: Yes.

A To the porch is 19 feet.

Q BY MR. VAN TRESS: Can you give us the distance from "C" over to the porch of house 5?

A C is a line point, not a distance point.

Q Well, can you use that point from which to measure?

A No.

Q Or would you measure from "A"?

A No, we have an intermediate point along in here that we can measure that angle.

Q Can you place that intermediate point now?

A I think I can (marking on diagram).

MR. VAN TRESS: We could call that "E", I think.

THE COURT: It might be a good idea to label it as "X", being a measuring point and we will keep our measuring points straight.

MR. VAN TRESS: All right, you might mark that "X-2", then.

THE COURT: I think that would be a good idea, and then we can have a mark, without having to refer to the transcript for our points from which to measure.

Q BY MR. VAN TRESS: From point "A" over to "X-2", then would be how far?

A 83 feet and 3/100ths.

Q Then from "X-2" up to the steps of the house indicated


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No. 5 would be about how far from point "X-2"?

THE COURT: The most direct distance, I assume?

MR. VAN TRESS: Yes, the most direct distance. Yes, up there at the step.

A 55 feet.

Q From point "X-2" what would be the distance in a direct line, we will say, to the southeast corner of this house indicated as No.4 on People's No.2 for identification?

A 34-2/10ths feet.

Q Can you tell us in your survey how far from house No. 5 Slauson Avenue is from that point?

A Merely the fact that I clocked it with my speedometer as 4/10ths of a mile, approximately along about there.

MR. BARNES: May we have the record show when the witness indicated by the word "there" he indicated upon the map a place in the road —

THE COURT: Well, approximately where we have our point "C" at the extreme righth and of the diagram.

A That is right.

MISS ZACSEK: I am very sorry, I did not hear either the question or the answer.

THE COURT: The distance from point "C" on the diagram, Exhibit 2 to Slauson Avenue, the witness stated the only measurement he made was by his speedometer in his automobile, which made it 4/10ths of a mile.

MR. VAN TRESS: Point "C" is in the upper portion.


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MISS ZACSEK: But where is Slauson Avenue?

MR. VAN TRESS: Slauson Avenue is here, at this point.

A It is southeast.

Q Atlantic Boulevard would be northwest?

A Would be north and west.

Q How far is Atlantic Boulevard from, we will say, house No. 2, the southwest corner, if you can give that? How far would it be from bunk house No. 2, the southwest corner back to Atlantic Avenue?

A 4368 feet to the center line of the pavement on Atlantic.

MR. VAN TRESS: I have no further cross examination.

MR. BIRD: That is 4/10ths of a mile, how far would that be in feet?

THE COURT: Aren't you able to do that, 4/10ths of a mile —

MR. BARNES: 4/10ths of 5,280 feet.

MR. BIRD: That is how much —

A About 2112 feet.

MR. BIRD: What?

A About 2112 feet.

MR. BIRD: Thank you. I want to ask another question now, something I did not know anything about yesterday that I have learned since.

THE COURT: You may do so.

Q BY MR. BIRD: Did you see something in the neighborhood


61
of the house marked No. 3 in the nature of a platform, a dance floor or something of that kind?

A No, I did not.

Q Did you go through, around back of the house and into the yard at all?

A Yes, I did.

MR. BIRD: That is all.

BY MR. SCHUTZ:

Q In connection with your surveys of this area, you made no photographs of any kind?

A None whatsoever.

Q Did you observe whether photographs were being made during the course —

THE COURT: That is not cross examination, Mr. Schutz.

MR. SCHUTZ: Very well, your Honor. I have no further questions.

MISS ZACSEK: Whose turn is it, mine? Thank you very much.

BY MISS ZACSEK:

Q Mr. McAtee, you said that one could get from Sleepy Lagoon to Slauson Avenue?

A That is right.

Q You mentioned something about the road being terribly rutted and cut up?

A Well, that is the one road —

Q Which road is that?


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A That is the one coming in by the Sleepy Lagoon, carrying off of the traveled road and going from Atlantic, going by the lagoon —

Q Would you just use the pointer, please, on this map No. 1?

A Now, coming in from Atlantic Avenue, you can come down to this point, continue ahead, cross under a railroad crossing that is not shown here, and come out at Slauson Avenue on a fairly good road.

THE COURT: That road you have just indicated now is not continued on the diagram?

A Not continued on the diagram.

THE COURT: It breaks off a little below Sleepy Lagoon on the diagram.

Q BY MISS ZACSEK: Would you be so good as to take a colored pencil, if you have one, and if not I will let you have this red one, and mark a series of dotted lines or otherwise to indicate the continuation of the road where it crosses the railroad?

A Well, that would be a way out, far beyond my map.

MISS ZACSEK: I know, it must be, but just continue it in the general direction. I know this will be only generally an approximation, but nevertheless I would like to have it indicated as far as we have.

MR. BARNES: If the court please, the witness has stated to show those things counsel asked he would have to run off


63
the map, because the map is not large enough.

MISS ZACSEK: I understand that.

THE COURT: May I ask Mr. McAtee one question: So far as the area that you have indicated on your map up there is concerned, would the road that you mentioned, if you drew it on there, pursue its general course as it started there?


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In other words, would it follow the same general direction without any particular curves or bends?

A I would say it ran rather straight to down along in here somewhere.

THE COURT: So far as the diagram is concerned?

A Yes, sir.

Q From a prolongation of that line?

A That is correct.

MISS ZACSEK: I understand that correctly, and I am sure the jury did, but I will ask that this witness be so good as to make a dotted line or some other indication on that map, as far as it goes, to show the general line of the road, the prolongation of it, just above the printed words on the map which show to Slauson Avenue.

MR. BARNES: May I submit to the court, your Honor, that it is not proper for counsel to address me —

THE COURT: I do not think it is proper at this time, because we have here a diagram which has been prepared by the surveyor, and we are asking the witness to give merely an approximation as to a general location, which has already been described in the evidence, so that we know that that road is regularly a straight road, so far as this piece of paper is concerned, that it does not enter here nor include that area where the railroad track is, and we are going to land into a lot of confusion by putting marks on the diagram which are not the result of measurements.


65
and I think I will sustain the objection at this time to the diagram being marked up any further by mere estimates.

Q BY MISS ZACSEK: Mr. McAtee, now, you mentioned — strike that. Considering for a moment diagram No. 2, that portion of the drawing on that diagram marked "Traveled Road" and pointing in a northeasterly direction, what is that traveled road?

A It is merely a road that has been used by the people in that little vicinity to get in and out; not a graded road. It is merely by the use of travel only.

Q And that road, I think you said, if I remember correctly, goes to Slauson Avenue also?

A You can get around that way to Slauson Avenue.

Q It is a fact that somewhere along that traveled road, in a northeasterly direction, there are other houses, farmyards, where people dwell and live; is that right?

A Yes, there are several collections such as this scattered down in those fields.

Q As a matter of fact, Mr. McAtee, there are many roads through this entire Williams ranch, leading from one little scattered group of houses to another; isn't that right?

A That is right.

Q Leading from those little scattered groups of houses to various fields that are under cultivation; is that right?


66

A That is right.

Q In other words, there are roads which have been made by mere constant use and travel; is that correct?

A That is correct.

Q You mentioned roads, Mr. McAtee, — I am going to ask you to look at diagram No. 1, please, and ask you, first, the angle that appears in the drawing, which is marked "Traveled Road", which is at this point, and ask you to consider from this point to this point — I don't know how to describe it.

THE COURT: The first point being the bend in the road nearest the letter "N" indicating "North", and the second point being the bend directly to the southeast of point "1", or the first point.

Q BY MISS ZACSEK: And then a third point, which is a very sharp angle in the southerly area. Would you mark those, respectively, "A", "B" and "C", please?

A "A" —

Q Well, start out with the one nearest the lagoon, please, and mark those points "A", "B" and "C", respectively.

A We have one there (indicating); do you want that slipped in, "A", "B", "C" and "D"?

THE COURT: It would be a good idea to do that, Mr. McAtee, we may want to use four angles instead of three.

Q BY MISS ZACSEK: Now, Mr. McAtee, calling your attention to the land, the ground or earth, between points


67
"A" and "B"; you mentioned yesterday that there was cultivation and planting in that vicinity immediately to the left and right of the road; is that right?

A Well, I will tell you all I can recall. At this point there was some planting, and there was some planting in here (indicating).

MR. BARNES: May we have the record show the witness is indicating point "D"?

MISS ZACSEK: Point "D."

MR. BARNES: And point "B".

Q BY MISS ZACSEK: That is all you remember at this time?

A And I remembered over here there was somebody working in the field. Whether they were planting, or there was growing vegetation, I cannot say.


68

MR. BARNES: May we have the record show the point indicated by the witness — I find Miss Zacsek waving at me, your Honor. I refuse to stop by being waved down. I would like the record to show —

THE COURT: I think somebody should indicate what the witness is referring to.

MISS ZACSEK: I will, if I am giving an opportunity.

THE COURT: You did not do so.

MISS ZACSEK: I appreciate, when I am sunk, floundering I will ask the court for help. I would greatly appreciate it if Mr. Barnes would be so kind as to let me be on my own. When I flounder I will appeal to the court for help.

THE COURT: Miss Zacsek, I think the confusion arose from the fact when you asked the witness with regard to certain area you should indicate by your question something which will enable us, when we read the printed record, what area is referred to. The witness pointed to an area without referring to anything, and somebody should get it in there.

MISS ZACSEK: I will, if Mr. Barnes would just let me alone. I would have said: "Please put your pointer back there" —

THE COURT: Mr. Barnes is doing it for you.

MISS ZACSEK: Yes. And I figured to have the court help me —

MR. BARNES: May we have the record show what part the witness indicated?


69

THE COURT: All right, Miss Zacsek, state into the record what part was pointed out by the witness. I will let you do it.

MISS ZACSEK: Thank you very much.

Q Mr. McAtee, would you be so kind as to put your pointer —

THE COURT: Miss Zacsek, please, will you indicate, for the purpose of the record, the point indicated by the witness, without going over it again?

MISS ZACSEK: I wanted him to put his pointer —

THE COURT: Mr. Barnes, will you have the record show what the witness indicated?

MR. BARNES: When the witness indicated in the last place that he was indicating, he pointed to an area between "A" and "B", south and west of the park marked "Traveled road."

THE COURT: All right; you may proceed.

Q BY MISS ZACSEK: Now, you noticed that there were fields or, at least, some sort of cultivation between points "A" and "B"?

A I believe it was cultivated— this was all cultivated in here. Whether it was planted or not, I couldn't say.

Q No, I am talking about — not crops, the type of crops, only cultivation.

A That is correct, it was cultivated.

Q Did you see, Mr. McAtee, whether there was any land


70
cultivated between points "B" and "D", either to the north or south of that traveled road?

A Cultivated and planted in this area.

MISS ZACSEK: Indicating a point south of the traveled road between points "B", "C" and "D."

Q Is that correct?

A That is correct.

Q All right. Now, Mr. McAtee, I am going to ask you whether or not you recall whether there was any cultivation of land to the north of that traveled road at any point between "A" and "D"?

A I recall between "A" and "B", but I could not say between "B" and "D."

Q Now, when you spoke — by the way, when were you there?

A On four occasions, I believe, or three. August 7th and 10th of this year, August 18th of this year, and September 4th of this year.

Q You were there the first time on the 7th?

A The 7th.

Q And the ground was usually in the same condition on the 7th as it was on the other occasions that you visited there after, is that right?

A The last time, on September 4th, I did not go past this point. I just merely measured the distance from here to here.


71

Q Indicating the branching off road —

A Yes.

Q (Continuing) — from a point immediately south of the Sleepy Lagoon to where the traveled road forks to the east; is that correct?

A That is correct.

Q But calling your attention, Mr. McAtee, solely to the condition of the cultivation, the earth, was it in the same condition on the 7th as it was on the 18th of August?

A I would say it was.

Q Now, then, when you speak of cultivation, would you please describe it so the jury can gather what you mean by "cultivation"?

A Well, the most of this land that was not planted, had been marked off into irrigation furrows and the weeds removed, very smooth condition of soil.

Q Now, the irrigation furrows to which you refer, did you observe that the water from those irrigation furrows seeped down to the traveled road at points "A", "B", "C" and "D" on the map?

A I could not recall at just what points it seeped. I think the only time I had traveled — there was one little stretch between "A" and "B", and a little had seeped through the road at this point (indicating).


72

Q Isn't it a fact, Mr. McAtee, that seepage of water from those irrigation furrows were at points somewhere between "A" and "B" — By the way, let us have one further point on that map; let us have "E" at the forking of the road indicated on that map, exactly where you have your finger.

A Here?

Q Yes, where the traveled road ends — the road forks, between points "A" and "E", is that true, that from the irrigation furrows which you mentioned, coming from the north in a southerly direction between those points, large wallows of mud and water have been created?—

MR. BARNES: May we have —

Q BY MISS ZACSEK (Continuing): — in that area somewhere?

MR. BARNES: May I have that question read, your Honor? I do not know —

THE COURT: Yes.

MISS ZACSEK: I will withdraw it and reframe it.

THE COURT: I think the difficulty we are running into is: I do not see the question is material as to the condition of the road on the date the survey was made unless it affected the survey. If it affected the transactions on August 2nd, then the condition on August 7th would not be admissible unless it were first shown they were the same as on August 2nd. We are simply going to become confused


73
by detailed conditions of the highway which are claimed to have existed on the 2nd of August by putting in proof as to what they were on some other occasion.

MISS ZACSEK: That is the reason I asked this witness, may it please the court, whether or not the condition of the road was the same on August 7th as it was on the 18th.

THE COURT: That is true, Miss Zacsek.

MISS ZACSEK: It was approximately the same.

THE COURT: I think you still do not get the point. If the condition of that road on the 2nd of August is material, you cannot prove it by showing what the condition was on the 7th of August.

MISS ZACSEK: Well, your Honor, for the limited purpose of what this witness observed; he is a surveyor. I would like to have him indicate by the series of questions I propose to ask as to the wallows or the large holes in that road, which to this trained expert's eye would clearly have been made by water coming out of the furrows. It is likely if they were there on the 7th, those huge holes would have been there on the 2nd of August.

THE COURT: The rule is, if you want to prove the condition on the 2nd of August you must prove it by somebody who knows what the condition was on the 2nd of August, or after proving there was no change between the 2nd and the 7th. I think we are losing track of the fact, that while your evidence is unquestionably admissible as to the


74
condition on the 2nd of August, this witness has merely testified he went in there first on the 7th of August, and the fact he made a diagram.

MISS ZACSEK: That is right.

THE COURT: He has not testified as to the ground characteristics or the physical condition of the soil. It is not proper cross examination at this time.

MISS ZACSEK: May it please your Honor, the questions I desire to ask are to elaborate upon the witness' answer as follows: "I say, you could get to Slauson if you would take the bumps. The road was terribly rutted and cut up." The question was: "Was the road rutted back this group of houses that you have indicated here?"

MR. SHOEMAKER: What page is that?

MISS ZACSEK: Page 30, lines 7 to 11, inclusive.

"A— No, it was not." Then the next question is: "No ruts at all?"

MR. SHOEMAKER: That was developed upon cross examination, your Honor.

MISS ZACSEK: Yes.

THE COURT: I do not think that alters the situation.

MISS ZACSEK: What is that?

THE COURT: I do not think the fact it was brought out on cross examination precludes any other counsel from cross examining.

MISS ZACSEK: May it please the court, page 30, and the


75
next answer — I am particularly directing my questions to in order to elaborate that, because I consider it most material, as far as the answer — "Well, after you left the Sleepy Lagoon and the group of houses there was some minor ruts in it" —

MR. BARNES: We submit, your Honor,—


76

THE COURT: If that question had been objected to I would have sustained the objection. Nobody objected to it. I did not think it of sufficient importance to make an objection by the court. But this witness cannot prove, under the present state of the record, what the condition was on the 2nd of August.

MISS ZACSEK: But may we say this, in the interest of saving time? May I introduce into the record through this witness the condition of the road on August 7th?

THE COURT: No, that is exactly what I am holding. You cannot do that, because it would be purely conditioned upon your being able later to establish by the testimony it was the same on the two occasions. The only way you could prove the condition on the 2nd of August would be by direct testimony. The objection will have to be sustained as to the condition of the road on the 7th of August or any time subsequent thereto, at this time. I will permit you to recall the witness for further cross examination.

MISS ZACSEK: You will permit that, your Honor?

THE COURT: Yes, if that connection is established, or you can make this witness your own witness, as far as that is concerned.

MISS ZACSEK: Thank you very much, your Honor. On that point I will reserve the right to recall the witness after the preliminary foundation has been laid.

Q Now, Mr. McAtee, you spoke yesterday about fences,


77
and I believe your map, particularly your map No. 2, shows certain lines which are marked with the word "Fence." Now, calling your attention to the house on your diagram marked No. 3, and calling your attention to the word "Fence" which appears just south of — south and east of No. 3 house, do you recall what the material was of which that fence was made?

A As I recall, it was merely lath.

Q They were laths?

A Lath patched up in places; it was not a true design of any fence all the way around, more or less patched.

Q Yes. There was probably a stretch of several feet of boards upon which laths were nailed; is that correct?

A Yes.

Q And then there would be a post and then there would be another stretch of boards and some more laths?

A That is right.

Q Laths nailed on them; is that right?

A That is right.

Q Would you take your pointer, please, and indicate the laths, as far as you can remember them which constituted the fence around house No. 3?

A No, that would be impossible.

Q Then, I am going to ask you whether or not you can remember whether the laths appeared in the southerly portion — in front of that house to the south, southerly portion


78
just about the words "Castor trees"?

A I think that the most of this through here was a lath fence, as I recall it.

Q Weathered laths?

A Why, I think ordinary laths that is used for lath and plaster in houses, that type.

Q And they were weathered, weren't they?

A Nicely from the weather, yes.

Q Sort of a grayish cast that all laths take on when they have been in the air a while?

A I believe so. I would not say that extended all the way around. I did not take too much notice of the type of fence.

Q But you distinctly recall, at least, in front of house No. 3, in the line which is the most southerly line marked "Fence", that was lath; is that right?

A I couldn't say in what portion the fence was lath. I know I saw some lath in the fence. Whether it was all lath or not, I couldn't say.

Q When you saw the fence that we have been talking about, at least, the one immediately south of the house marked No. 3, was the fence, at least, in a state of repair or was a portion of the fence down on the ground?

A No, it was all in an upright position.

Q Considering that power pole marked "3-A" and "3-B" — power poles, rather, can you tell us now in what direction


79
the power wires traveled from that point?

A No, I could not; I didn't notice.

Q When you traversed the distance on August 7th from Atlantic Boulevard to the portion of the houses indicated on that map, did you find that the roads, on the traveled road, this dirt road, was difficult of travel because of its dust, dirt and rutted condition?

A I was never over that road between point "A" and the lagoon until August 18th.

Q Where did you come in from, Slauson?

A I came in the back road. I came in two different ways. I came in once from Industrial Avenue, and I came in once from Slauson.

Q And the third time from Atlantic?

A From Atlantic.

Q So the three trips that you made you came in from three different entrances into the ranch?

A That is right.

Q And at those times you came, of course, to the points where you have indicated on map No. 1 as houses, traveled road and Sleepy Lagoon; is that right?

A That is right.

Q Now, Mr. McAtee, this Sleepy Lagoon —


80

A I will correct that statement to four trips in there, the seventh and tenth.

Q I see. At any rate, you are confident that you entered through Imperial, Slauson, Atlantic Boulevard, on the four different trips that you made; is that right?

A Not Imperial; Industrial.

Q Industrial. Thank you for the correction. Is that right?

A That is right.

Q Considering the Sleepy Lagoon, can you give us a description of the lagoon itself a little more clearly than has appeared in this record, as to its topography? I mean, in height and so forth.

A The lines I have indicated is the water elevation at the time I took it, and all around this lagoon — it is a man-made reservoir — was an earth bank with a berm, possibly, 4 feet on top and the elevation of the berm or dyke around the reservoir was, possibly, 5 or 6 feet higher than the surrounding country, a little sloping and irregular there, but it would be 4 or 5 feet higher.

Q In other words, in order to get up to the lake one would have to go up a slope or incline?

A That is right.

Q Would you be so kind, Mr. McAtee, as to mark the distances from that juncture in the road near the word "2" to the nearest point of the lagoon itself, in distance?


81

MR. SHOEMAKER: What was the last part of the question?

MISS ZACSEK: "In distance."

MR. SHOEMAKER: May we have the whole question read, your Honor?

THE COURT: The distance from the road to the Sleepy Lagoon.

A Well, it is about 60 feet from the water's edge to the edge of the road, the nearest edge of the road.

Q BY MISS ZACSEK: Now, that 60 feet distance, is that such that an automobile could travel up from that road to the edge of the lagoon?

A At this point I indicated there is a rather flat stretch for about, possibly, 35 feet, back from the road, that I parked my car in when I was there, very flat, before you hit the slope up to the top berm on the dyke.

MR. BIRD: May the record show what the witness is indicating, please?

THE COURT: The section of terrain between the road and the Sleepy Lagoon.

MR. BIRD: Just south of the Sleepy Lagoon?

THE COURT: South of the Sleepy Lagoon, yes.

THE WITNESS: Yes, that is right.

Q BY MISS ZACSEK: To that portion of the road marked on the map as "Traveled Road", between the juncture of that "Traveled Road" and point "A" —

MISS ZACSEK: At the court's suggestion, I now ask leave


82
to withdraw this witness for a moment in order to put on proof out of turn, that the condition was approximately the same on the 2nd of August as it was on the 7th of August, and then I can finish —

THE COURT: No, you can do that later on. I do not like to break in one part of a side and inject in between something else. In other words, that would be defense proof entirely out of order.

MISS ZACSEK: Very well. That is all for the present, thank you.

THE COURT: I think we will take our recess.

MR. BIRD: I would like to frame an unobjectionable question.

THE COURT: Do you think you can frame an unobjectionable question?

MR. BIRD: I will try to. I do not know whether I can do it or not.

CROSS EXAMINATION (resumed)

BY MR. BIRD:

Q When you were there on August 7th did you see any evidences along the road south and southeast of the Sleepy Lagoon of recently dried mud holes?

A I was there on August 18th and September 4th only.

Q You did not come out by that road to Slauson Avenue?

A Not past point "E."

MR. BARNES: May we have the record show what point he


83
means by past "E", whether he means east or west of point "E"?

A Between point "E" and the lagoon.

MR. BIRD: All right. Thank you.

THE COURT: We will take our morning recess at this time. During the recess the jury will heed the admonition heretofore given: not to talk about the case or form or express any opinion.

(Recess.)


84

THE COURT: The record will show all parties present. You may proceed, Miss Zacsek.

Q BY MISS ZACSEK: When you were — I don't know - whether this question will be admissible, but perhaps I can frame it so it will be — When you were there, on August 18th I think you said you left the point marked "Houses" on map No. 1, and proceeded towards the Sleepy Lagoon on what is marked in your map as the traveled road; is that right?

A That is right.

Q Now, as you traveled that at any point from point "E" to "A", did you find holes across the road and completely embracing the outer edges and beyond the road, deep holes say 2 or 3 feet in depth, that seemed to you to be holes caused by water, and they were dry?

A Nothing nearly that deep.

Q How deep would you say?

A Well, I would say possibly 3 or 4 inches deep.

Q 3 or 4 inches deep. Did you find any such holes that were wet on the 18th?

A One small spot. I couldn't say just where it was. I think it was between point "A" and "B."

Q All right, now, did you observe whether any of these irrigation furrows which you have described as lying north and south of the traveled road, as having indications of water escaping from those furrows and crossing the traveled


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road onto the ground?

A No, I did not.

MISS ZACSEK: That is all, Mr. McAtee. Thank you.

THE COURT: Redirect.

REDIRECT EXAMINATION

BY MR. BARNES:

Q Calling your attention to Exhibit 2, Mr. McAtee, the one on the board behind you, can you tell us the general nature of the ground adjacent to the brown portion marked "Traveled Road", as to whether it was flat or hilly?

A That whole country is entirely flat around that collection of houses.

Q The part marked "Traveled Road" is outlined with a series of dashes. Was there any well-defined outline to the road?

A No.

Q You have put it that way on this map purely for convenience, is that it?

A They seemed to be more defined wheel tracks made in there than other places, but it was not what you would call a well-defined road at any point.

Q Did you find wheel tracks in the triangular portion, for instance, in which the power poles were located?

A Yes, I did.

Q And also in the portion between house No. 10 and house No. 3 north of the traveled road?


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A I did.

Q And in other places, here and there on the map outside of the portion marked "Traveled road"?

A That is right.

Q Is it true that with regard to Exhibit 1 from point "E" to the Sleepy Lagoon that you did not cover that road until August 18th?

A That is correct.

Q You had not been over it on your first trip then on the 7th of August?

A I had not.

Q With regard to the roads east of Exhibit 2, which roads are not shown on Exhibit 2, but lie somewhere east of that territory, how would you describe those roads as to whether they were well-defined or more or less trails?

A Very poorly defined, one road running into the industrial, and I came through that way at the edge of a cultivated field, and the irrigation water was pretty well flowed over it the day I went there. I had pretty much trouble getting through. The one running to the southeast or southerly to Slauson Avenue was very rough, quite deep holes in it.

Q One further question, Mr. McAtee, with regard to the material, if any, planted on the territory north and south of the traveled road, on Exhibit 1, between Sleepy Lagoon and the spot marked "E", did you pay particular


87
attention to what was planted there and whether it was being irrigated or not at the times you were there making your survey?

A I did not.

Q The principal object you had in view was to note the distances and directions of roads as the same appears on Exhibit 1; is that correct?

A That is correct.

MR. BARNES: That is all, Mr. McAtee.

THE COURT: Any further questions?

MR. VAN TRESS: No recross examination.

MR. BIRD: No further questions on my part.

MISS ZACSEK: No questions.

THE COURT: That is all, Mr. McAtee.

THE WITNESS: Thank you, your Honor.

MR. SHOEMAKER: We will call Mr. Teodulo Diaz.

MR. BARNES: We may have to have an interpreter for him; I am not sure. He speaks broken English.

TEODULO DIAZ, called as a witness on behalf of the People, was duly sworn and testified as follows:

THE CLERK: What is your name, please?

A Teodulo Diaz.

MISS ZACSEK: May it please the court, I think all


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counsel in concert desire to move the court for an exclusion of the witnesses, and we now so move.

MR. BARNES: I think counsel is referring to all counsel for the defendants.

MISS ZACSEK: Yes, thank you, Mr. Barnes, yes. I am speaking solely for the defendants.

THE COURT: I will take that matter up latter. I do not think it is something that has to be decided on right now. Suppose we take it up just before we finally take our recess, after the jury has been excused.

MISS ZACSEK: Thank you.

MR. SCHUTZ: May we have this witness' name?

A JUROR: I do not think the jury heard that name.

THE COURT: I have it T-e-o-d-u-s.

MR. SHOEMAKER: T-e-o-d-u-l-o, the first name, and the last name, Diaz, D-i-a-z.


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MISS ZACSEK: I might offer to stipulate on behalf of my clients, and perhaps counsel will —

THE COURT: Just a minute, just a minute. There will be no offer of stipulation in the presence of the jury. I will go into that in more detail and there is a very good reason for it.

MISS ZACSEK: I see. Thank you.

DIRECT EXAMINATION

BY MR. SHOEMAKER:

Q Mr. Diaz.

A Yes, sir.

Q You understand English?

A Well, not very well. If you will give me an interpreter I will do better.

Q We will try it and see how you get along.

A All right.

Q Where do you live, Mr. Diaz?

A 5508 East Slauson Avenue.

MR. SCHUTZ: I am sorry, I cannot hear these answers. May we have the witness — I notice he is not using the loud speaker.

THE COURT: Just pull that up near your mouth.

A 5508 East Slauson Avenue. Do you understand that now?

THE COURT: Yes, that is pretty good.

MR. SHOEMAKER: Try and talk into the microphone, Mr. Diaz, just like that when you answer questions.


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Q How long have you lived in Los Angeles County?

A In Los Angeles County since the summer of 1927.

Q Since 1927?

A Yes, sir.

Q What kind of work do you do?

A Well, most farming work, most of the time.

Q Are you the father of a young man named Jose Diaz?

A Yes, sir.

Q Is he now dead?

A Now dead?

Q Is he dead now?

A Yes, sir.

Q When did he die, Mr. Diaz?

A The 2nd day of August this year.

Q The 2nd day of August this year?

A Yes, sir.

Q Where were you at that time?

A Saratoga, California.

Q In Santa Clara County?

A In Saratoga, California.

Q That was in Santa Clara County?

A Yes, sir.

Q When did you come back to Los Angeles County?

A When I am back, I am back on Monday.

Q Monday?

A Yes, one day after my boy, you know.


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Q That would be Monday, August 3, 1942?

A Yes, sir.

Q And at that time did you see your son some place?

A Yes, sir.

Q Where did you see him?

A Over here in this building.

Q In the morgue in this building?

A Yes, sir.

Q How old was he at that time?

A How old?

Q Yes?

A He was born December 9, 1919.

Q Where was he born?

A In Mexico.

Q What province or state?

A The State of Durango.

Q The State of Durango, Mexico?

A Yes, sir.

Q When did you bring your boy to the United States?

A 1922.

Q 1922?

A Yes.

Q When did you leave your home prior to the death of your son, when you went to Santa Clara County?

A One week before.

Q One week before?


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A It was the 25th of July.

Q Was your son's name Jose Diaz?

A Jose Diaz.

Q Does Jose in Spanish mean Joe in English?

A Yes, sir.

Q Where did your son live at the time you left for Santa Clara County?

A Well, with the same family.

Q He did live with your family?

A Yes, sir.

Q Did he live there with you and your wife and some other children?

A Yes, sir.

Q What did Jose do, was he working some place?

A Yes, sir, he worked in the Sunny Sally Packing Company

Q That is, he was working in a packing plant?

A Yes, packing vegetables.

Q At what place?

A Over here in the new market, I don't know the address.

Q In what town, where did he work, in what town?

A Well, in Vernon, West Vernon.

MR. SHOEMAKER: The jury does not understand. Did you get that answer, Mr. Reporter?

(Answer read.)

A In the C.M.D. District.

Q Is that in the Vernon District?


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A Yes, it is in the Vernon.

Q That is the Central Manufacturers' District?

A Yes, maybe.

Q Identified by those initials?

A I don't know what the letters are.

Q The C. M. D. means Central Manufacturing District; is that right?

A Yes, maybe it is.

Q Now, was Joe working regularly at that packing company when you went away?

MR. VAN TRESS: We object to that as incompetent, irrelevant and immaterial.

THE COURT: I think the objection is good, it calls for a conclusion of the witness becuase he was not here and also probably predicated upon hearsay. Sustained.

Q BY MR. SHOEMAKER: You stated you went away from Los Angeles to Santa Clara County about a week before your boy died?

A Yes, sir.

Q Is that right?

A Yes, sir.

Q Now, how long had Joe been living at your house with you and your family before you went away to Santa Clara County?

A I don't understand.

MR. SHOEMAKER: Read the question, if you can, Mr.


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Kennelly — I will withdraw the question.

Q How long had your son Jose been living with you before you went up to Santa Clara County?

A All his life.

Q How long had he been working for this packing company?

A Well, I don't know.

MISS ZACSEK: That is objected to as incompetent, irrelevant and immaterial, neither tending to prove nor disprove any of the issues in this case.

THE COURT: Overruled. You may answer.

A I don't remember exactly, but my boy, he started working in December — in December, maybe in December.

Q BY MR. SHOEMAKER: Last December?

A Yes, sir.

Q Had he been working there regularly since last December?

A Yes, sir.

MR. VAN TRESS: We object to that as calling for a conclusion of the witness — we ask that the answer be stricken as calling for a conclusion of the witness.

THE COURT: I think it does call for a conclusion of the witness. Sustained on that ground.

Q BY MR. SHOEMAKER: Do you know whether or not Jose had been regularly working at that packing plant since last December?

MR. VAN TRESS: We object to that as calling for a


95
conclusion of the witness.

THE COURT: I do not think the question calls for a conclusion, but the difficulty we are running into is, the witness may answer that yes and still it may not mean that he knows of his own knowledge. The point of the court's ruling was there is nothing to show that this witness knew or has any knowledge whether or not the boy was working.

MR. SHOEMAKER: Well, I will reframe the question.

Q State whether or not your son Jose Diaz was regularly employed, to your knowledge, previous to his death.

MR. VAN TRESS: We object to that as no proper foundation; it is too remote, calling for a conclusion of the witness and it is incompetent, irrelevant and immaterial.

THE COURT: I think it still calls for a conclusion of the witness, even though the form of the question seems to obviate it, but we know that people say yes, I know that so and so was working at such and such a place. Well, how do you know? Well, he told me so.


96

MR. BARNES: May we submit, your Honor, it is one of those classes of things having to do with a family relation, that a witness would necessarily know. For instance, my wife probably would be able to testify that I have been regularly working for several months.

THE COURT: She could only testify to her belief that you were working.

MR. BARNES: That may be it.

Q BY MR. SHOEMAKER: You may state whether or not your son Jose, to your knowledge, contributed to the support of your family.

MR. VAN TRESS: Objected to as incompetent, irrelevant and immaterial.

THE COURT: Overruled. You may answer.

MR. BIRD: Objected to as incompetent, irrelevant and immaterial.

THE COURT: In other words, you mean did he pay board at home? Did Jose pay board at home?

A No, sir.

MR. SHOEMAKER: He did other things, your Honor.

MR. BIRD: I object to that as calling —

A No, he didn't pay board; he gave me money.

MR. BIRD: I move the testimony of counsel be stricken.

MR. SHOEMAKER: That may go out.

THE COURT: That statement of Mr. Shoemaker, the jury will understand, it is a statement to the court, correcting


97
the court, and properly so.

MISS ZACSEK: I move to strike the witness' last statement on the ground it is a volunteer statement.

THE COURT: The motion is denied.

Q BY MR. SHOEMAKER: Did your son, to your knowledge, help support your family in any way?

MR. VAN TRESS: Objected to as calling —

MR. BIRD: Objected to as incompetent, irrelevant and immaterial.

MR. VAN TRESS: Calling for a conclusion.

THE COURT: Overruled.

A What date?

Q BY MR. SHOEMAKER: Did your boy help support your family in any way?

A Yes, sir.

MR. VAN TRESS: I move to strike the answer on the ground it is incompetent, irrelevant, immaterial, and a conclusion of the witness.

THE COURT: Motion denied.

Q BY MR. SHOEMAKER: Mr. Diaz, when you went away from your home to Santa Clara County, about a week before your son died, state whether or not at that time he was healthy and well.

A Yes, sir, he was healthy and well, because he had a certificate of the doctor to go to the Army about a week after he died.


98

MR. VAN TRESS: I ask that that be stricken out.

THE COURT: "Because" and so forth will be stricken.

Q BY MR. SHOEMAKER: I will show you a photograph and ask you to look at it, please, Mr. Diaz, and state whether or not you recognize that picture (handing photograph to the witness).

A Yes, sir.

Q Is that a photograph of your son as you saw him in the morgue?

A Well, when I saw him he was covered to here.

Q He was covered up to his neck when you saw him?

A Yes, sir.

Q Is that photograph of his face and his features as you saw him in the morgue on the 3rd of August, 1942?

A Yes, sir.

MR. SHOEMAKER: We offer this photograph in evidence, your Honor.

THE COURT: Marked 3 in evidence.

MISS ZACSEK: May I ask this witness one question on voir dire, your Honor?

THE COURT: No. The exhibit is already in evidence.

MR. SHOEMAKER: You may cross examine.

CROSS EXAMINATION

BY MR. BIRD:

Q Mr. Diaz, is this address where Jose lived with you during his life, is that on the Williams ranch?


99

A I don't understand very well.

Q This place where you lived with your boy, was that on the Williams ranch?

A Yes, that is the Williams ranch.

Q Was it in this same group of buildings where they were holding the dance that night that your son met his death, did you live in one of those houses close to where the dance was held?

A Well, not too close to where the party was.

MR. BIRD: I see. That is all.

MR. VAN TRESS: No questions.

Q BY MISS ZACSEK: How close?

MR. BARNES: Objected to, your Honor, as not proper cross examination. This witness was not there at the time the dance occurred.

THE COURT: I think the objection is good as to its not being cross examination. I think also it calls for a conclusion on his part where the dance was held, if he was not at the dance at the time.

MR. BIRD: I know it does, your Honor.

THE COURT: I think we can get at it in another way, if there is any significance to it, however, or you can find out just where he was living.

MR. BIRD: I thought it would be too difficult to do it, your Honor, because he does not speak very good English. I think we will let it go, because there are a


100
lot of other witnesses.

MISS ZACSEK: Maybe I can do it, your Honor. I will try it, at least.

Q Mr. Diaz, do you know where Mrs. Delgadillo lives?

A Yes, ma'am.

Q You live near Mrs. Delgadillo?

A I live where?

Q You live near her house?

A Well, not too near, but maybe about 600 feet, something like that.

Q You live about 600 feet from the Delgadillo house?

A Yes, ma'am.

Q You live 600 feet away from the Sleepy Lagoon?

A No, no, from the Delgadillo house, the south side.

Q The south side?

A Yes, ma'am.

Q A road from your house to the Delgadillo house?

A Yes, ma'am.

Q You work as a farmer on the Williams ranch?

A Yes, ma'am.

Q That picture you saw of your boy, when you saw him did they have his face washed clean?

A When I saw him in the morgue?

Q Yes.

A Yes, he was clean.

Q This picture of your boy shows his face was not clean?


101

A Was not clean.

MR. BARNES: Objected to, if the court please, upon that ground —

THE COURT: Sustained as calling for a conclusion.

THE WITNESS: I know his face was —

MR. SHOEMAKER: Just a minute. You don't have to answer that question.

Q BY MISS ZACSEK: Mr. Diaz, when you saw your boy in the morgue —

A Uh-huh.

Q — his face looked like that, dirty?

A Well, it looked like that but he was washed.

Q Washed?

A Washed.

Q No dirt?

A No dirt.

Q No blood?

A They have washed it.

Q Nice and clean?

A Yes.

MR. BARNES: Just a moment, if the court please. Objected to as argumentative. He has said this is a photograph of the body he saw in the morgue.

THE COURT: Yes, that may be true although on cross examination it is permitted. Overruled.

Q BY MISS ZACSEK: These marks on the picture under his


102
eyes and on his cheek and chin, and under his nose, you saw black marks there; when you saw your boy he had no such marks?

A Well, his face was washed.

THE COURT: I don't know that we all got that answer, Mr. Kennelly. Will you read it?

(Answer read.)

A Well, he had marks but was washed up, clean-faced, no dirt and no blood.

THE COURT: Mr. Diaz, when you saw your boy downstairs did you see marks on his face?

A Oh, yes, sir.

THE COURT: Where were the marks?

A Well, one just little one hole here, here and go through here.

Q Indicating from one cheek to the other?

A And his face, I don't know how to say that, was swollen.

Q Swollen?

A Yes, both sides.

Q BY MISS ZACSEK: You only saw his face?

A Only his face; he was covered to here.

Q How about his hands?

A No, only the face; he was covered to here.

Q Did you say you have other boys and girls in your family?


103

A Yes, ma'am.

Q How many boys?

A How many boys?

Q Yes.

A Five more.

Q Five more boys?

A Yes, ma'am.

Q How many girls?

A Four.

MISS ZACSEK: That is all, thank you.

MR. BIRD: I have no further questions.

MR. SCHUTZ: I have no further questions.

THE COURT: Any redirect?

MR. SHOEMAKER: That is all, your Honor.

THE COURT: That is all.

LINO DIAZ, called as a witness on behalf of the People, was duly sworn and testified as follows:

THE CLERK: State your name, please.

A Lino Diaz.

DIRECT EXAMINATION

BY MR. BARNES:

Q Lino, how old are you?

A Twenty years old.


104

Q You are one of the sons of Mr. Diaz who was just on the stand?

A Yes, sir, that is right.

Q Were you related to Joe Diaz?

A Yes, sir, he was my brother.

Q Calling your attention to August 2nd, Sunday morning, August 2nd, did you see your brother that morning?

A I seen him during the morning; it was Saturday, in the afternoon, August 1st.

Q Well, I was directing your attention now to Sunday.

A Oh.

Q The day something happened?

A Yes, I seen him.

Q Did you see him Sunday morning?

A It was about 1:30 when I first saw him.

Q Where was he when you first saw him, Lino?

A He was left on the Delgadillo house, to the lefthand.

Q If you will turn around here I will show you a map on the board, Exhibit 2 in this case. Do you understand this map? If you don't, I am going to explain it to you. The top is north, the bottom is south; this side is west and the righthand side as you look at the map is east, and the west, you see, is Atlantic Boulevard running out this way?

A That is right.

Q These dark spaces here indicate houses. They are


105
marked with the word "House." We marked that house No. 10. We have not told who lives in it. It is marked No. 10. This little place marked "Bunk house" is marked No. 1, this small place marked "Bunk house" is No. 2. This house here is marked No. 3. There are two power poles indicated upon the map. There is a water tank down here, indicated water tank, marked 6. The pump house marked No. 7, another house marked No. 8 here, another 9 there, and so forth. Do you understand that map generally?

A Yes, sir, I do.

Q Can you point to the place on that map where the Delgadillos lived?

A I think this is the one.

Q And you have indicated upon the map house marked No. 3, have you? Speak out loud. You shake your head, but the man here, the reporter, has to write what you say.

A Yes, sir.

Q Now, if you will keep your voice up a little, Lino, because these lawyers have to hear too, so talk right up, please.

A All right.

Q When you saw your brother about 1:30 in the morning, or the reabouts, was he on the ground somewhere?

A Yes, sir, he was, right here on the road, he was lying with his face up.

Q He was lying on the road with his face up?


106

A He was lying right here on the road, a hole right there made by probably rain for the past years, and there was a hole there about right there, - I am not too sure, - and he was facing up.

Q Now, you have indicated the approximate place. You say you are not sure. Am I pointing to the place now on the map?

A Yes, sir.

MR. BARNES: May we have that marked "LD-1", if your Honor please?

THE COURT: You may so mark it.

MR. BIRD: I would like to have the record show that point is in the middle of the road due north of the western-most power pole which is labeled "3-A" on the map.

THE COURT: Well, being already marked on the diagram, —

MR. BIRD: Yes, it is already marked, but I would like to have that additional reference.

THE COURT: You are correct about that, though.

Q BY MR. BARNES: Now, when you pointed out to that place marked "LD-1", Lino, I do not suppose you measured the distance from the power poles that night, did you?

A No, I did not.

Q That is just your approximation of where your brother was?

A That is my general idea by looking at the power poles, I have an idea that this is the road that goes


107
between — I mean right between these two power poles, so it was to the lefthand side of the power poles.

Q It was to the lefthand side of the power poles?

A That is right.

Q Now, what called your attention to your brother there that night?

A When I first saw him he was — well, he could not speak at all, and he was badly beaten up, and I noticed that his pockets were inside out.

Q You noticed the pockets of his clothes were inside out?

A That is right.

Q All the way inside out?

A Completely inside out, like this (illustrating).

Q Like that. Did you notice whether or not all of his pockets were inside out?

A No, because he was lying on his back. I did not turn him around to notice if his other back pockets were inside out.

Q Was he alive at that time, Lino?

A Yes, sir, he was unconscious but he was breathing.

Q You could see him breathe?

A Yes.

Q Did you try to speak to him?

A I tried to but he could not answer.

Q How was he dressed?


108

A He had on gray pants, as I remember;— I don't remember — it was a blue shirt, that is all I remember.

Q In any event, it was a pants and shirt?

A That is right.

Q No coat?

A I don't remember seeing a coat.

Q You would not say definitely about the coat?

A I would not.

Q Where had you been just before you saw your brother there?

A I was in bed, in my house.

Q Where do you live, Lino?

A At that same address, 5508 East Slauson Avenue.

Q Is that house shown on this map?

A I don't think it is.

Q With regard to the Delgadillo house marked No. 3 here, is the house you live in west or east?

A It is this way.

Q It is east of that place. How far would you say, just in round figures?

A About 600 feet.

Q Are you married?

A Yes, sir.

Q Were you and your wife at home that night before you went down to the place where Joe was?

A Yes, sir.


109

Q What caused you to go to the place there?

MR. VAN TRESS: I object to that, if the court please, as calling for a conclusion of the witness, incompetent, irrelevant and immaterial.

THE COURT: Overruled. You may answer.

A I was in bed and then Maria Albino came up from their house to my house and called us and asked —

MR. SCHUTZ: Just a moment. We object to what anyone said to the witness.

THE COURT: To whatever was said the objection is sustained.

MR. BARNES: Don't tell us what Miss Albino said to you, but Maria Albino came to the house, did she?

A Yes, she called me.

Q And you heard your name called?

A Yes, sir.

Q After Maria Albino came to the house or called your name, then did you go somewhere?

A I went exactly where my brother was lying.

Q You went out to this place on the road and you saw your brother there?

A That is right.

Q Now, did you see any blood upon him?

A Yes, sir, there was blood on both sides of his cheek and blood coming out, very little blood, on his mouth.

Q I show you here Exhibit 3 in this case (handing


110
photograph to the witness). Do you recognize that picture?

A Yes, sir.

Q Is that your brother Joe that you have been telling us about?

A That is right.

Q Do you notice whether or not there is any peculiarity or any difference in his face in that picture than what his face was normally?

A Yes, his face is completely swollen up— well, he was not like that before.

MR. BARNES: I have another picture I would ask to have marked.

THE COURT: 4 for identification at this time.

MR. BARNES: 4 for identification, your Honor. I will put a "4" in a circle in a corner with a blue pencil.

Q I show you Exhibit 4, a picture, Lino (handing photograph to the witness). Will you state whether or not that is a likeness of your brother Joe that you have been talking about in life?

MR. VAN TRESS: Just a moment. We will object to that as incompetent, irrelevant, immaterial; not within the issues in this case, and calling for a conclusion of the witness.

THE COURT: Overruled.

MR. VAN TRESS: No proper foundation laid.


111

THE COURT: Overruled. You may answer.

A The picture shows the same characteristics that he had before he —

THE COURT: What did he look like when he was alive, that is what we want to know.

A Exactly.

MR. BARNES: At this time we offer this picture in evidence.

MR. VAN TRESS: We will object to it on the ground it is incompetent, irrelevant, immaterial; no proper foundation laid.

MISS ZACSEK: I would like to object to it on the ground that there is no showing in this record when that picture was taken.

MR. BARNES: We submit, it would not make any difference.

THE COURT: Both objections are overruled. Marked 4 in evidence.

MR. VAN TRESS: I move to strike out No. 4, and object on the grounds it is incompetent, irrelevant and immaterial.

THE COURT: Motion denied.

MR. VAN TRESS: Not within the issues, and no proper foundation laid, and calling for a conclusion.

THE COURT: The motion will be denied. In this court an objection as to the foundation is considered by the court as not indicating any ground for the objection unless the lack of foundation is indicated by the objection. The court


112
cannot indulge in speculation as to what is in counsel's mind. I am just saying that as an indication for any future objections along that line. However, in this particular instance I have in mind the witness having stated this is the way the man looked in his lifetime, we have a sufficient foundation, regardless of who took the photograph or when it was taken. You may proceed.

Q BY MR. BARNES: Did your brother live in the same house with you, Lino?

A He lived there prior to —

Q What?

A He lived there before I got married and has been living — had been living there ever since.

Q Well, by that you mean you lived at some place else than he did at the time of his death?

A After I got married I lived in another house, yes, but he was living at the same place where I lived.

Q How far did he live from you at the time of his death?

A Oh, about from here to the bookcase over there.

Q Approximately not over 30 feet?

A About 30 feet.

Q About that far?

A Yes, sir.

Q He lived next door to you, then?

A That is right.


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Q Did you see him often during the two weeks before his death?

A Yes.

MR. VAN TRESS: Just a moment. We ask the answer be stricken until we have an opportunity to object, as incompetent, irrelevant and immaterial.

THE COURT: The objection is overruled. There is nothing to indicate anything as to any ground of incompetency, immaterialty or irrelevancy.

MR. BARNES: You may answer the question.

THE COURT: The answer is already in. The motion was to strike for the purpose of the objection, and Mr. Van Tress stated his objection, and I overruled the objection. The answer may remain in the record, however.

MR. BARNES: What was the answer, Mr. Reporter?

(Answer read.)


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Q How often did you see him, just approximately, during the two weeks prior to his death?

A Every day.

Q Will you state what the condition of his health was?

A His physical condition was perfect, as far as I am concerned.

Q As far as you know?

A As far as I know.

Q He was not sick?

A No, never.

Q Do you know where he worked?

A Yes, he worked at the Sunny Sally Packing House.

Q That packing house is where?

A Central Manufacturing Distributors at the end of Leonas Boulevard, where that railroad ends — I mean where that street car comes to an end.

Q Did you work there?

A I worked there before I got operated on for appendicitis; I was working there steady.

Q With your brother?

A Yes — no, he was working — he came to work after I, to take my place, when I went to the hospital.

Q Are you familiar with the pay days at the Sunny Sally Packing House?

A Yes, sir.

Q When was their pay days?


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A On Tuesdays.

Q Now, when you went to see your brother as he was lying in the road at the place you have marked "LD-1", on Exhibit 2, did you see any automobiles there in that vicinity?

A There were two that I remember of. One was a 1934 V-8 sedan, and another, a Plymouth, 1939 or 1940 coupe.

Q And about, just roughly, where were they located, Lino?

A I would say about right here (indicating on diagram).

Q Just hold your pointer there and we will mark that.

MR. BARNES: May we mark that "LD-2", your Honor?

THE COURT: So marked.

Q BY MR. BARNES: Were those automobiles close together or far apart?

A Not very far apart.

Q About how far, just roughly?

A About 15 feet.

Q Did you notice anything about them as you saw them there that night?

A Yes.

Q Describe them to us.

A The windows were all broken up and the tires were completely damaged. The Plymouth was more damaged than the other car, that I remember of.

MR. BARNES: May I mark three photographs as Exhibits 5,


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6 and 7, if the court please —

THE COURT: They will be so marked, for identification.

MR. BARNES: For identification. May the record show I am marking them in blue pencil on the back?

MR. BIRD: Which one is being marked 4 — I mean 5? Is there any way I can identify them in the notes I am making?

MR. BARNES: Yes, I will hand them to you, and then you can make your own notes.

(Photographs examined by counsel for defendants.)

MR. BARNES: Before proceeding, your Honor, I notice that there is some writing in pen and ink on the cover of the picture, Exhibit 4. May we have an order for the clerk to cover that with —

THE COURT: Yes, if you will, Mr. Moore.

Q BY MR. BARNES: Now, Mr. Diaz, I am going to show you three photographs marked 5, 6 and 7 in this case; I will show you them in that order, 5, 6 and 7 (handing photographs to the witness). Do you recognize the automobiles shown in those pictures?

A Yes, sir. They are the same ones I seen that night.

Q When you say they are the same ones you saw that night, you are referring to the two automobiles that you saw at the place marked "LD-2"?

A That is right.

Q I call your attention to the windows and the tires and the windshields, and I will ask you whether or not the


117
windows, windshields and tires were in the same condition that night that you saw them as shown in those photographs?

MR. VAN TRESS: Object to the form of the question, if the court please, in that I think there should be, with all due respect to Mr. Barnes — whether or not those pictures fairly represent the cars as he saw them or whether it is a fair representation —

THE COURT: I think either form would be permissible. Overruled.

A They are the same except for the V-8, I don't remember seeing it on — without any tires on. I don't remember that exactly.

Q BY MR. BARNES: Except for the tires on the V-8?

A I don't remember seeing it without any tires.

Q According to your recollection there was a tire on the V-8?

A I don't remember.

Q I see. In other words, you don't remember whether or not there was a rear tire on the V-8, as shown in Exhibit 5; is that right?

A That is correct.

Q Aside from that, will you state whether or not the automobiles shown in Exhibits 5, 6 and 7 are a fair representation of those automobiles as you saw them that night when your brother was lying in the road, when you saw the automobiles at the place marked "LD-2"?


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A Yes, they are.

MR. BARNES: We offer them in evidence.

THE COURT: I think we should get something into the record as to which is which.

MR. BARNES: For the purposes of the record I can indicate which is the Ford and which is the —

THE COURT: Why not ask the witness?

MR. BARNES: I beg your pardon, your Honor.

Q In Exhibit 5, is that car shown there the Ford or the other car?

A That is the Ford, the V-8.

Q In Exhibit 6, what make of car is that one that is shown?

A Plymouth.

Q And Exhibit 7, what make of car?

A Plymouth.

Q So that Exhibits 6 and 7 are two pictures of the Plymouth car; is that correct?

A That is correct.

MR. BARNES: We offer them in evidence.

THE COURT: So marked, 5, 6 and 7.

MR. BARNES: At this time, if the court please, may we ask to pass to the jurors the three pictures of the automobiles and the two pictures of the deceased?

THE COURT: You may do so.

(Exhibits referred to examined by the jurors.)


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Q BY MR. BARNES: Mr. Lino Diaz, were you invited to a party at the Delgadillo's house for a party to be held the evening of August 1st?

MR. VAN TRESS: I object to that as incompetent, irrelevant and immaterial.

THE COURT: Overruled.

A I was.

Q BY MR. BARNES: How about the other members of your family, were they invited?

MR. VAN TRESS: I object to that as calling for a conclusion and hearsay.

THE COURT: Not necessarily. You may answer.

A They were all invited as a whole.

Q BY MR. BARNES: Calling your attention now to your brother again, as he lay there in the road, did you remain there that evening until you saw an ambulance?

A Well, I stayed there until the Sheriff's office said that —

MR. VAN TRESS: Just a moment. If you are going into a conversation, I object to that as hearsay.

THE COURT: It may be hearsay; it is rather difficult to tell. It may be a verbal act or hearsay.

THE WITNESS: I am trying to explain that —

THE COURT: Were the Sheriff's officers there when you left?

A Yes.


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Q BY MR. BARNES: Was there an ambulance there when you left, Lino?

A No, I went on Atlantic Boulevard as the nearest way to get there. That is why I stayed there until —

Q Did you see an ambulance there that night, Lino?

A Yes.

Q Did you see it arrive?

A I did. We were there before the ambulance got there.

MR. SHOEMAKER: Keep your voice up, Lino, so we can all hear you back here; speak loud.

MR. BARNES: I better stand back here. I think that will help the witness talk up a little.

Q Did you see your brother taken anywhere in an ambulance, Lino?

A Yes, I did.

Q Did you go with him?

A Yes.

Q Did the ambulance take anyone besides your brother?

A No.

Q That ambulance just took your brother; is that right?

A My brother, that is all.

Q Where was he taken, Lino?

A To the General Hospital.

Q You went in the ambulance with him?

A That is right.


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Q Were you in the back end of the ambulance where he was?

A No, I was in front.

Q When you arrived at the hospital did you see your brother taken out of the ambulance?

A Yes, I did.

Q And did you notice then whether he was breathing or not?

A He was.

Q Did you try to talk to him then?

A I did try to talk to him.

Q Did you get any response from him at all?

A No.

Q Then where did you go when you arrived at the hospital, Lino?

A I went to the emergency receiving office to answer some questions that they had to ask.

Q About how long was it before you saw your brother again?

A I seen him in about four or five minutes.

Q Where was he when you saw him again, Lino?

A I don't recall what floor it was, but it was up on the — from the fifth floor up.

Q Somewhere up in the building?

A Yes.

Q Was he alive or dead then?


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A He was dead then.

Q Did you notice at any time after seeing your brother lying in the road there, anything about his hip pocket at all? Later on did you notice that?

A No, because he was laying face down.

Q I know, but after he was lying face down — after you went with him to the hospital, after he passed away, did you notice anything about his pockets?

A No.

Q Did you ever see his wallet again?

A No.

MR. VAN TRESS: Just a minute.

Q BY MR. BARNES: Did you look for it?

MR. VAN TRESS: Just a moment.

MISS ZACSEK: Just a moment. That is objected to as —

THE COURT: Objection sustained to the following question and the answer is stricken. It assumes he had a wallet.

Q BY MR. BARNES: Do you know whether he had a wallet?

A Yes.

MR. VAN TRESS: Just a moment. I object to that —

THE COURT: I think you may ask the witness whether he saw his brother's wallet at any time.

MR. BARNES: All right, your Honor.

Q Did you ever see your brother's wallet?

A Yes, sir.

Q Do you know where he was accustomed to carry it?


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A In his righthand pocket.

Q In his right hip pocket of his pants?

A Yes, sir.

Q Did you make a search for your brother's wallet?

A No, I did not.

MR. BARNES: Cross examine.

MR. BIRD: No questions.

MR. VAN TRESS: No questions.

MR. SCHUTZ: No questions on behalf of the defendants I represent.

CROSS EXAMINATION

BY MR. RAVIN:

Q When did you see your brother prior to finding his body that morning?

A Saturday afternoon.

Q That is, you did not see him from Saturday afternoon until you found his body early Sunday morning?

A 1:30 Sunday morning.

MR. RAVIN: No further questions.

CROSS EXAMINATION

BY MISS ZACSEK:

Q You saw your brother Saturday afternoon at what time, please?

A It must have been about 2:00 o'clock in the afternoon.

Q What was he wearing at that time?

A I don't recall.


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Q Do you remember anything at all as to what he was wearing?

A Not that afternoon.

Q Was he working —

A Was he what?

Q (Continuing) — that day?

A No, that was his day off.

Q Was he around the house in overalls, perhaps?

A Yes, he was there almost all morning.

Q Or denims?

A He was there all morning until —

THE COURT: I think the witness missed the question of clothing. He said he was there. I do not know whether he caught the latter part about the clothing.

Q BY MISS ZACSEK: Mr. Diaz, did your brother wear overalls, slacks, denims, or just work clothes around the house that day when you saw him?

A No.

MR. BARNES: That has been answered. The witness said he does not recall what he wore.

THE COURT: He might still be able to say he did not wear a particular thing, even if not able to remember what he did wear.

A He did not wear overalls; that is one thing I do know.

Q BY MISS ZACSEK: You saw him last that afternoon


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about 2:00 o'clock?

A About that time.

Q And then you did not see him at any time again until 1:30?

A No, I did not.

Q Now, at 1:30, you say, when you saw him he was then lying in the road on his back?

A That is right.

Q Was there a light?

A What do you mean "light"?

Q Just a minute.

A There is not a light there; it is a farm; there is no light whatsoever.

Q There was no light there?

A Not out in the yard.

Q It was quite dark?

A Not very dark.

Q You say that —

A The lights from the house did not reach clear up to where he was lying.

Q So, there was no light there except the light of the sky or stars, if any; is that right?

A The inside lights — the only lights there were — were across the street where the party was being held.

Q But you also said, Mr. Diaz, that the lights from the house did not reach to the road?


126

A That is right. But yet you can see the light, couldn't you?

Q I don't know. I wasn't there.

A That is what I am saying.

Q All right. Now, look, Mr. Diaz. You told me there was a light in the Delgadillo house, and you told me that the light did not reach the road?

A Not to where he was lying.

Q So it was dark where he was lying; is that right?

A That is right.

Q Did you notice whether there was a moon that night at 1:30 in the morning?

A I don't recall.

Q Did you notice whether the sky seemed to have the radiance of moonlight in it?

MR. BARNES: I submit that calls for a conclusion and opinion of the witness. It has been asked —

THE WITNESS: I answered that before, didn't I? I don't recall whether there was a moon there.

Q BY MISS ZACSEK: Well, I know, but, you see, you might have a light even though you cannot see the moon; there might be a mist or fog and the moon behind it would make the sky light?

A I don't recall the weather conditions at all.

MR. BARNES: We object —

Q BY MISS ZACSEK: You did not —


127

MR. BARNES: Just a minute. We object to counsel arguing with the witness. I object to the question on that ground, it is argumentative.

THE COURT: I think I will allow the answer to stay in, in spite of the objection to the question.

Q BY MISS ZACSEK: When you came to where your brother was lying did you go right over to him?

A Yes, I did.

Q Did you touch him?

A No, I did not touch him. I tried to talk to him.

Q Did you kneel down or bend down close to his body?

A I bent down; that is all I did.

Q Did you in anywise touch him?

A No, not that I remember of.

Q Did you put your hand under his shoulder or neck or anything to help him in any way?

MR. BARNES: That is objected to on the ground it is argumentative.

MISS ZACSEK: I submit, if the court please —

THE COURT: The latter portion is. You may ask him if he touched him in any way.

Q BY MISS ZACSEK: Did you in any way put your arm around or under his shoulder or around or near his head?

A No, we did not — I did not. I did not touch him at all.

Q Who was present there with you other than your


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brother?

A There was a group of people there.

Q Quite a group?

A Yes.

Q Several people, the Delgadillos, Coronados and others?

A Yes.

Q You say he was lying on his back. What position were his arms?

A I don't remember.

Q Were his eyes open or closed?

A No, his eyes were not quite closed; they were a little bit open.

Q Did he have on a tie?

A No tie.

Q Open shirt?

A I don't remember if it was a sports shirt or a dress shirt.

Q At any rate, it was open, as yours is now?

A Yes, I think it was.

MR. BIRD: May the record show that? I cannot see the witness.

THE COURT: The top button not buttoned.

MR. BIRD: Thank you, your Honor.

MISS ZACSEK: The witness is wearing a shirt with a collar attached and the first button is open, showing the base of the throat.


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Q You say his shirt was blue?

A I think it was; I don't remember exactly.

Q You don't know?

A Not exactly, but I think it was blue.

Q What was the color of the pants?

A I think it was gray.

Q Well, you were familiar with your brother's clothing?

A Yes, they were gray.

Q You were familiar with his shirt?

A No, not with his shirts.

Q When you say a pants' pocket or both pants' pockets were turned inside out — A— The two front pockets were. I don't remember about the others because he was lying on his back.

Q They were both turned inside out?

A Yes, they were.

Q You noticed that?

A I noticed that.


130

Q And you noticed that?

A I noticed that.

Q Did you notice the condition of your brother's hands?

A The condition?

Q Yes.

A No, I did not notice the condition of his hands. I paid most attention to his face.

Q His face was swollen, and you tell us there was a little blood coming from his mouth?

A A little, and on both sides of his cheek.

Q There were two marks, one on each cheek, that were bloody; is that right?

A That is right.

Q Otherwise there was some swelling on his face?

A That is right.

Q Now, you can tell us nothing about the condition of his hands at all; is that correct?

A I didn't pay much attention to the hands. I didn't notice them.

Q And you say you have no recollection whether or not he wore a coat?

A No, I don't.

Q Did anybody — were those people that were around there, this group of people, they were there before you came down, were they?


131

A Yes, they were.

Q Did you notice whether anybody put their arms around your brother in any way?

A No.

Q Touched him while you were there?

A No.

Q Until the ambulance came?

A No, nobody touched him. They thought it would be better to leave him —

MR. SCHUTZ: Just a moment, as to what people thought, we will ask that be stricken.

THE COURT: It may be stricken.

MR. BARNES: We submit, if your Honor please, if it was said it was part of the res gestae.

THE COURT: It will be stricken.

THE WITNESS: They said it would be better —

THE COURT: Don't tell us what they said.

A Well, then, is it all right —

THE COURT: You didn't see anybody touch him, that is the idea?

A No.

MISS ZACSEK: That is all. Thank you.

MR. BIRD: May I ask a couple of questions?

THE COURT: All right, Mr. Bird.

Q BY MR. BIRD: When did you first notice the color of your brother's shirt, while he was lying there on the


132
ground when you first came over, or some later time?

A While he was lying there.

Q You could tell in the light that was available there what color it was?

A Why, yes, I bent down and I could see.

Q Was his blue shirt of a tint which would look light in semi-darkness or which would look dark in semi-darkness?

A Look light.

MR. BIRD: Thank you.

MR. RAVIN: I have a further question.

MISS ZACSEK: I would like to ask one further question when Mr. Ravin is through, if I may.

BY MR. RAVIN:

Q When did you quit work for the Sunny Sally people?

A December 4th or 5th, I don't remember.

Q You had no occasion to go back to that place, did you?

A I went back after I got well.

Q Well, when was that?

A January 2nd.

Q Were you working in August?

A In August, yes, sir.

Q Were you working for the Sunny Sally people then?

A No.

Q Whom were you working for then?

A At a farm here.


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Q When did you quit work for the last time for the Sunny Sally people?

A About February.

Q You had no occasion to go back to that plant since February?

A I have been there several times, but not to work.

MR. RAFIN: No further questions.

BY MISS ZACSEK:

Q To get back to this shirt for a moment, Mr. Diaz, did you notice the shirt again after your brother was taken into the ambulance or after he was taken into the hospital?

A No, I didn't. I paid most attention to him than his clothing.

Q Of course, you would do that, Mr. Diaz, but can you remember now anything that would help us here as to the color of that shirt after you saw it under the electric light?

A No, I don't.

MISS ZACSEK: All right. Thank you.

REDIRECT EXAMINATION

BY MR. BARNES:

Q Lino, you were asked questions on cross examination as to whether or not when you bent down you touched your brother, and you said you didn't.

A No.

Q Did you have a particular reason for that?


134

MR. SCHUTZ: Just a moment. That is objected to as calling for a conclusion of the witness.

THE COURT: Sustained.

Q BY MR. BARNES: Was anything said there at the time you bent down with regard to whether or not you should touch your brother?

MR. SCHUTZ: That is objected to as he arsay.

THE COURT: The same ruling.

MISS ZACSEK: That is objected to, if the court please, —

Q BY MR. BARNES: When you went back to work for the Sunny Sally people in January, did your brother Joe Diaz work there also?

A Yes, sir.

Q Do you recognize any of these defendants as having seen them before?

A The two Carpio boys.

MR. BIRD: Objected to as not proper redirect, your Honor.

THE COURT: I think the objection is good. However, I will permit counsel to reopen the direct for the purpose of asking the question.

A The two Carpio boys.

Q BY MR. BARNES: Which two are they? Will you point them out in the courtroom, please, where they sit?

A The third from the first row and the fourth from the righthand side.


135

Q You are referring now to the front row of defendants, the third and fourth boys from the righthand side, as you look at them?

A That is right.

MR. BARNES: May we have the record show the witness has indicated Eugene Carpio and Joe Carpio?

THE COURT: The record will so show.

Q BY MR. BARNES: Do you know, of your own knowledge, whether or not they ever worked where your brother worked?

A They worked there.

Q Where?

A At Sunny Sally.

Q While your brother worked there?

A That is right.

MR. BARNES: That is all, Lino.

MR. VAN TRESS: I have no further questions.

MR. BIRD: I have no further questions.

MISS ZACSEK: Nothing further.

Q BY MR. RAVIN: What was the last time you saw the Carpio brothers?

A I don't know the exact date. It was before I quit work there at Sunny Sally.

Q It was the place where you were working then, is it not?

A It was the same packing house.

MR. RAVIN: That is all.


136

MR. BARNES: That is all, Lino.

THE COURT: We are so close to our recess time, instead of calling another witness we will take a recess at this time. The court will remain in session, however, for these other matters. The jury will be excused to return here at 1:45. Keep in mind the admonition not to talk about the case or form or express any opinion. Everybody remain seated until the jury has left the courtroom.

(The jurors left the courtroom and the following proceedings were had in their absence:)

MR. BIRD: By the way, there is a motion to take up, your Honor, before the court finally adjourns.

THE COURT: That is why I told you to stay here. Is there anything further you want to say in regard to this matter of exclusion of witnesses?

MISS ZACSEK: Yes, your Honor. On behalf of the defendants, and all of them, we jointly move the court to exclude all witnesses who are to testify in this action.

MR. BARNES: That, I take it, is a motion to exclude the defense witnesses as well as the prosecution witnesses?

MISS ZACSEK: All witnesses.

MR. BIRD: With the exception, of course, of one or two investigators whom the District Attorney will need for personal assistance during the trial. We always make that exception.

MISS ZACSEK: Yes, of course.


137

THE COURT: Well, with that exception, all witnesses will be excused. I think, however, that we probably should have the witnesses notified by somebody who can speak Spanish, because there are probably a number of these that do not understand English.

MR. SCHUTZ: May it please the court, I would suggest that you do not want to do that in the presence of the jury.

THE COURT: Well, there is no objection to doing it in the presence of the jury. They will find it out before we get along very far.

MR. SCHUTZ: I would suggest we call an interpreter for the afternoon session.

THE COURT: I think so. At this time the court announces to all witnesses, other than the investigators required by the District Attorney, — I think we should exclude the — that all witnesses other than these investigators will stay out of the courtroom until they are called. If there are any special arrangements you may want where we could keep these witnesses, I would be glad to make it, but unfortunately we haven't any special place. If the District Attorney wants to keep his witnesses down in the District Attorney's office, to come up on call, that will be satisfactory.

MR. VAN TRESS: May I inquire how many investigators will be present? We are going to ask, unless they are not


138
all necessary, that some of them be excluded.

MISS ZACSEK: We will join in that motion.

MR. BARNES: We probably will not use as witnesses over two of them, your Honor, and we would ask, because of the number of witnesses and defendants involved, that we be permitted to have Mr. Brown and Mr. McVine with us.

MISS ZACSEK: We have no objection.

MR. SCHUTZ: No objection to that.

MR. BARNES: As to the others, they will not be witnesses, and the order does not apply to them.

THE COURT: All right. With reference to this question of offers to stipulate: we run into that quite frequently, and counsel and attorneys and opposing counsel offer to stipulate to this and that and the other thing. The Appellate Court has criticised us very severely, and the obvious reason is that somebody may offer to stipulate to something that he does not want to stipulate to, and the stipulation is offered, and he has to refuse, and you can realize where we would get in a very short time if somebody wanted to take advantage of the situation. Now, any stipulation should be taken up outside of the presence of the jury, and not place counsel in a necessarily embarrassing position. I had that very idea in mind, and I am leaving it as just a suggestion to counsel.

I have another idea in mind, and I will suggest this to counsel also, that we have already referred to one of the


139
houses as the Delgadillo house. It is going to be rather difficult for the jurors probably to remember which house is, which, and it may be that counsel can agree, after we get far enough into the evidence, to have these houses labelled by putting the word "Delgadillo" on the Delgadillo house.

MR. BARNES: We will agree to that now.

MISS ZACSEK: We will agree to it.

MR. BIRD: I suggest we put "D-e-l" and we can make the letters big enough so that they can all be seen.

MR. BARNES: They can be seen here.

THE COURT: I don't care how you do it, but it will be a convenience to the jury and it will refresh our memories from time to time.

MR. BIRD: I haven't any objection to Mr. Barnes doing it with a blue pencil right now, if he has the pencil.

MR. BARNES: The jury will probably want to know about it, and I suggest we do it when we come back at 1:45.

THE COURT: Well, we do not want to mark on this diagram until we are reasonably certain what we are marking. We do not want to be putting marks on the diagram and then having to erase them.

MR. BARNES: I think we are all satisfied that is the Delgadillo house, your Honor.

THE COURT: All right. We will take a recess until 1:45.

(Whereupon a recess was taken until 1:45 o'clock p. m. of the same day, Tuesday, October 20, 1942.)


140

TUESDAY, OCTOBER 20, 1942; 1:45 O'CLOCK P. M.

THE COURT: The record will show the jurors, counsel and the defendants present. We do not have the interpreter here yet, have we?

MR. BARNES: We do not need an interpreter for the next witness.

THE COURT: If there are any witnesses in the courtroom they are ordered to leave the courtroom. All witnesses will leave the courtroom. There was an order made excluding all witnesses.

MR. BARNES: Shall we proceed, your Honor?

THE COURT: You may proceed.

MR. BARNES: Dr. Webb.

FRANK R. WEBB, called as a witness on behalf of the People, being first duly sworn, testified as follows:

THE CLERK: State your name, please.

A Frank R. Webb.

THE COURT: Do you want the microphone, Doctor?

THE WITNESS: Yes, sir.

DIRECT EXAMINATION

BY MR. BARNES:

Q What is your business or profession, Doctor?


141

A Physician and surgeon; Chief Autopsy Surgeon for Los Angeles County.

Q Where have you studied your profession?

A I am a graduate from Columbia University, New York City, in 1902, and have been practicing my profession since then.

MR. BIRD: We will stipulate to the doctor's qualifications. There are one or two little matters Mr. Barnes wants to put on notwithstanding the stipulation, but we won't require full proof thereof, your Honor.

MR. SCHUTZ: We join in such stipulation.

MR. BIRD: Mr. Barnes has told me what he wants to put on and that is satisfactory.

MR. BARNES: Do you mean it is satisfactory to stipulate?

MR. BIRD: It is satisfactory that the doctor is a duly authorized and acting physician —

MISS ZACSEK: Oh, yes.

MR. BIRD (Continuing): — that he has been for a number of years the Autopsy Surgeon of this County and has performed thousands of autopsies. I think that covers everything.

MR. BARNES: Yes, we will so stipulate.

MR. SCHUTZ: So stipulate.

THE COURT: Well, the record will show the stipulation.

Q BY MR. BARNES: Doctor, I show you Exhibit 3 in this case, a picture of Jose Diaz (handing photograph to witness).


142
Did you perform an autopsy on the body of Jose Diaz in the morgue?

A I did, in the Los Angeles County Morgue on the 3rd day of August, 1942.

Q What did your autopsy disclose when you made it — by the way, let me ask you this. I withdraw that question for the moment. When you made the autopsy, Doctor, did you prepare, at the time the matters were fresh in your memory, notes of your autopsy findings?

A The notes were made immediately after the autopsy was done and were fresh in my mind at the time.

Q And by refreshing your memory from your notes can you tell us what you autopsy findings were with regard to the body of Jose Diaz as shown in the photograph, Exhibit 3?

A I can.

Q If you will, please, tell us.

A My examination showed the party to be a Mexican of the male race, age twenty-two years; height 5 feet 6 inches, weight 126 pounds; black hair, brown eyes and dark complexion. Further examination showed the backs of both hands to be contused and somewhat swollen with abrasion of the knuckles of the little and ring finger on the left hand, and the second finger of the right hand. The facial features were swollen and there was contusion over the left side of the lower lip and also the upper lip; there was contusion over the prominence of both cheeks and abrasions over the outer


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angle, the right angle of the mouth. The left ear was quite markedly contused, and there was extensive ecchymosis of the scalp over the left side of the head. Upon opening the skull the brain was found to be contused and there was a profuse subdural hemorrhage. The base of the skull was fractured, the fracture line running along the lesser wing of the sphenoid bone on the left side. The general physical condition was normal. Chemical analysis of the blood showed 0.12 per cent alcohol.

THE COURT: Is that .012 or .12?

A 0.12.

Q BY MR. BARNES: From the chemical analysis of the blood were you able to tell whether or not Jose Diaz was intoxicated?

A Our margin of intoxication is generally accepted as 0.15. This was 0.12, which would bring it under that margin, not above it.

Q Now, you spoke of ecchymosis. What is ecchymosis?

A It is a severe bruising with hemorrhage into the loose tissues.

Q And you spoke of a contusion. Can you tell us a little plainer what that is?

A A contusion is bruising which may be just a redness or it may be even a black and blue mark.

Q You spoke of the sphenoid bone in the skull. Can you tell us where that is, Doctor?


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A I can demonstrate that or I can tell you.

Q Have you brought with you a human skull?

A I have.

Q Can you use that for the purposes of illustrating where the sphenoid bone is?

A Yes.

Q Would you bring it out, please?

THE COURT: Let me ask the doctor a question, so we won't get away from it.

MR. BARNES: Yes.

THE COURT: You again repeated .12 and .15; in both instances you should put a zero in front of it?

A No, we put the zero, then the point and then the number.

THE COURT: I see.

A It is 0.12.

THE COURT: I see.

THE WITNESS: Now, you want me to demonstrate this to the jury?

Q BY MR. BARNES: Yes, if you will, please. Keep your voice up.

A All right.

MR. SHOEMAKER: Perhaps you can step down in front of the jury.

Q BY MR. BARNES: Yes, if you will point to the sphenoid bone, using that skull to illustrate where the


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A The beginning was over here at the side of the skull, and it was continued over just beyond the center line, which would give it about 2½ or 3 inches in length.

Q You spoke, Doctor, of a swelling of the face. Can you describe the swelling of the face to us?

A Well, as described here, I said that the facial features were swollen, and there was a contusion over the left side of the lower lip and also the upper lip, and over the prominence of both cheek bones. Now, the entire features of the face had a swollen appearance, but at these definite points which I mentioned it was more severe and more pronounced; not the swelling, but the black and blue appearance, than over the entire face.

Q With regard to the swelling of the face, from what you saw there at the autopsy, did you form any opinion as to whether or not that swelling could have been caused by blows in the face with fists?

A I have seen similar cases where blows in the face by fists have caused a similar appearance.

Q With regard to the fracture, did you form any opinion as to whether or not the fracture would probably be caused by blows of a fist or with some blunt instrument?

MISS ZACSEK: That is objected to as calling for a conclusion and opinion of the witness, your Honor.

THE COURT: Overruled; that is what we have experts for.

A The appearance on the left side of the head of the


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ecchymosis of the scalp and the crushing effect on the left ear indicated to me that some other instrument than a fist had been used to bring that injury about.

Q BY MR. BARNES: Would you expect to find a fracture of that kind caused by a blow of the fist?

A It would have to be a powerful fist to bring about a fracture of that type. I have seen cases of concussion of the brain, but not fractures from fist blows.

Q Have you made autopsies on the bodies of persons who received injuries in the prize ring and subsequently died from that?

A I have seen cases of that type where they have had concussion of the brain and cerebral hemorrhage, but not a fracture of the skull.

MR. VAN TRESS: We ask that that be stricken, if the court please, because it is a known fact that people in the prize ring wear padded gloves. It would not be a fair comparison.

THE COURT: Well, I do not think that alters the situation very much. It is a matter of common knowledge the amount of padding on there is not very extensive.

Q BY MR. BARNES: Doctor, you mentioned there was a profuse hemorrhage of the brain. Did you form an opinion as to the cause of the hemorrhage?

A The cause of the hemorrhage, in my opinion, was due to trauma or injury to the head, injury that has been described.


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Q With regard to the swelling appearing upon the face, what would you say, in your judgment, would be the effect upon the brain of blows upon the face with fists sufficient to produce the injury which you saw there, as far as the hemorrhage in the brain is concerned?

MR. BIRD: I object to it as being a compound question and also hypothetical in view of the fact that the actual injury was not caused by mere fist blows, as testified by this witness.

THE COURT: Objection overruled. You may answer, Doctor.

A In my opinion the fist blows on the face could bring about a cerebral hemorrhage such as this was, but I attributed it more to the injury on the side of the head, which was more severe.

Q What would you have expected to find, Doctor, had there been a blow of a blunt instrument, and only a blow of a blunt instrument upon the head, as far as the brain is concerned; what injury to the brain would you have expected to find?

A You would probably find, as already noted, a subdural hemorrhage over the surface of the brain.

Q Would you have expected to find it as extensive as you found it in this case, just with that one blow alone?

A It is possible. You could not place a limitation on


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the amount there of that hemorrhage.

Q Ordinarily do you find where a blow has been received upon the head on one side, something known as a contra coup on the other side?

A That is very evident in many cases.

Q What is that?

A It is simply that the brain which lies inside of the closed skull is driven to the opposite side of the skull and meets the resistance of the hard bony wall where it comes in contact with that bony wall is what causes the contra coup. The illustration given for that is if you place a marble in a pasteboard box and you hit the side of the box, you drive the marble to the opposite side and they hit against the wall on the opposite side of the box. The same with the brain inside of the skull.

Q So ordinarily when one blow, just one blow is given on the head, the brain on the part of the head opposite to that is the part that shows the contra coup?

A That is the contra coup, although both areas just under the blow and at the distant point from the blow will oftentimes show the contusion.

Q Now, the brain in this case, I think you described it as a profuse hemorrhage. What would you say as to the extent of the hemorrhage, as to whether it was localized in one spot, or whether it covered the entire brain?

A It seemed to be generalized over the entire brain.


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There was a profuse hemorrhage and I could not localize it to any one definite point.

Q What do you mean by hemorrhage of the brain, Doctor?

A Hemorrhage over the brain is subdural hemorrhage. That is what I refer to, not hemorrhage within the brain substance, but hemorrhage over the surface of the brain.

Q Can you tell us what it looks like? Can you describe it to us, that we have not seen one?

A When you remove the skull cap, that is the bony structure and expose the brain lying within its membranes. The brain's membrane, the strongest and heaviest membrane is what we call the dura mater, which is quite firmly attached to the surface of the inside of the skull. A limited space exists between that membrane and the brain itself, which is known as the subdural space. It is filled with a cerebral spinal fluid, which is a clear liquid substance and acts as sort of a buffer for the brain. Now, in the case of a hemorrhage, you see that hemorrhage between this dura mater and the surface of the skull and the brain itself. That is what we call a subdural hemorrhage. If the hemorrhage is within the brain we describe it as a cranial hemorrhage, but not as a subdural.

Q What does the hemorrhage itself then consist of, blood in that matter that is between the outer layer and the inner layer?

A Free blood, free from the blood vessels lying loosely


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between this membrane and the brain.

Q And that is what you found in this case?

A Exactly.

Q Now, Doctor, have you had experience with people who have had subdural hemorrhages, profuse subdural hemorrhages prior to this time?

A I have examined a great many of such type of cases.

Q And what, in your opinion, would have been the effect upon Jose Diaz had he failed to die but lived through this injury, as far as the subdural hemorrhage is concerned?


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MR. BIRD: Objected to as hypothetical and immaterial, your Honor.

THE COURT: Overruled.

A I could not place the limitation to the damage, because that cannot be determined until months later, but a large hemorrhage like that, if a person survives, usually forms a blood clot over the brain, causing more or less pressure, causing oftentimes adhesion to the brain and the outer membranes, resulting in an epileptic condition or in degeneration of the brain tissue and subsequent paralysis.

Q BY MR. BARNES: Will you state then, Doctor, whether or not had Jose Diaz lived, you would have expected to find permanent physical injury upon him?

A With the profuse hemorrhage that was present there I would expect to find some permanent injury.

Q And would you expect that permanent injury to have been serious or mild?

A That is pretty difficult to state, though this hemorrhage was so profuse that I would consider it a very serious proposition and expect serious injury.

Q Had he lived would you state whether or not he would have been confined to a hospital?

MR. VAN TRESS: I object to that —

THE COURT: The objection is sustained.

Q BY MR. BARNES: Had he lived, will you state whether or not you would have expected that he would have had to


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have had hospitalization?

MR. VAN TESS: I object to that —

MR. COVIELLO: Just a moment. If your Honor please, I don't see the materiality of it.

THE COURT: Sustained as to that.

Q BY MR. BARNES: Had he lived, will you state whether or not he would, in your judgment, have been incapacitated for any time?

MR. COVIELLO: Objected to on behalf of Delgado as incompetent, irrelevant, immaterial; not tending to prove or disprove any issue of the case.

THE COURT: Overruled. I am permitting the testimony, gentlemen, on the theory that it tends to shed light on the severity and degree of injury inflicted, but for no other purpose.

A I would expect injury to result, and more or less permanent injury. The degree to which that would develop is something that I think would be impossible to state.

Q BY MR. BARNES: Will you state whether or not such a condition of the brain would ordinarily produce unconsciousness?

A It would.

Q And, in your judgment, for what period of time would that injury to the brain be likely to continue in unconsciousness in the event of recovery?

MR. SCHUTZ: If the court please, I object to that upon


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the grounds it really calls for conjecture and speculation.

THE COURT: I don't think so.

MR. COVIELLO: Assuming something not in evidence.

THE COURT: I think it is a matter of expert opinion. I think this is all admissible on the limited theory tending to show the severity and degree of injury.

MR. BARNES: That is the purpose for which it is offered.

THE COURT: I think the doctor would state, if it were asked, that injuries of this sort would not in every instance invariably result in death; is that correct, Doctor?

A Not necessarily.

THE COURT: You may proceed.

MR. SCHUTZ: If the court please, I do not want to be captious, but in view of the limited purpose of the inquiry, I can appreciate the court's ruling, but I rather thought that even medical men could not be asked to indulge in speculation or to tell accurately how long a man would suffer from any injury.

THE COURT: I do not think a doctor would endeavor to put it down in hours and minutes, but he would have some idea from the nature of the injury as to what the period of incapacity by reason of unconsciousness would be, and what the period might be as to the future history of the patient. I think to that degree the doctor may testify. You may


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proceed.

Q BY MR. BARNES: Would you tell us about how long you would expect such a one to be unconscious in the event that he ever did recover?

A That type of case remains in an unconscious or comatose condition frequently for an entire week or ten days.

Q In connection with your examination of the body of Jose Diaz, did you notice anything about the hair on the left side of the face, Doctor, in the vicinity of the place where a blow may have been struck, causing the fracture?

MR. COVIELLO: Now, I object, if your Honor please, on behalf of Delgado as leading and suggestive.

THE COURT: Overruled.

A He had black hair and exceptionally heavy, heavy hair, thick hairy head.

Q BY MR. BARNES: What, in your judgment, would be the effect of that hair with regard to the matter of cushioning a blow by a blunt instrument?

MR. VAN TRESS: That does not call for expert testimony, if the court please. We object to it on that ground.

THE COURT: I think in that form that is probably true. I think it is a matter of common knowledge, anything with resiliency interposed between the blow and the head towards which it is directed would have a tendency to absorb some


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of the force. I think you would have to get at something which required expert knowledge. Sustained on the grounds assigned.

Q BY MR. BARNES: Now, eliminating from consideration the matter of the fracture, Doctor, can you tell us what, in your judgment, the extent of the injury to the brain would be from what you saw in the body of Jose Diaz, eliminating the matter of fracture?

A Well, if I eliminated the fracture, I would have to eliminate the injury to the left side of the head. The injury to the face, it was possible to bring on a concussion of the brain, possible to bring on a hemorrhage, but to eliminate the fracture, after having found it and giving the other as the entire cause of the trouble, I do not think could be done. The two are too closely associated.

Q I see. In other words, as you looked at it there, it was —

A A combination.

Q I beg pardon?

A A combination of the injuries.

Q A combination of the injuries, yes. By the way, Doctor, could you point on my head to the place where, in your judgment, the blow was struck that caused the fracture?

A This prominence at this point here, and corresponding to the upper part of the ear.

MISS ZACSEK: Let us fix for the record, the doctor's


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finger now shows extended in a direct line from his wrist beginning at the point known commonly as the cheek bone, just to the left of the eye socket but pointing in a generally upward direction just about —

THE COURT: I do not think it would be upward, Miss Zacsek. It is upward merely because Mr. Barnes has his head bent forward.

MISS ZACSEK: Thank you, your Honor; that is correct. In a direct line just from the outer socket of the eye to the point just below the tip of the left ear, traversing the lower part of the temple; is that correct?

A That is correct.

Q BY MR. BARNES: That would be the upper portion of the ear and not the lower tip of the ear?

A That is correct.

MISS ZACSEK: Just about a quarter — a little less than a quarter of an inch from the upper tip of the ear.

THE COURT: Doctor, that bony prominence of that cheek, directly below the eye, which leads back here to a small bone and continued as a part of that, is generally known as what?

A Sphenoid.

MR. BIRD: What was that answer?

(Answer read.)

Q BY MR. BARNES: By the way, Doctor, with regard to the autopsy picture, Exhibit 3, I notice in the neck on the


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right side there is a place that has been sewed. That was a part of the embalming process, was it?

A It was.

Q That did not have anything to do with the injury which you found when the body was examined?

A No, sir, it had nothing to do with the injury. It is a part of the embalming.

Q When was the picture, Exhibit 3, taken, do you know, Doctor, with regard to — not the time, but before or after embalming?

A After embalming.

Q And after embalming is the body washed?

A It is washed prior to the embalming.

Q Now, what, in your opinion, then, was the cause of death of Joe Diaz?

A In my opinion, from my findings, I gave as the immediate cause of death contusion of the brain and suhdural hemorrhage due to basal fracture of the skull.

MR. BARNES: Cross examine.

MR. BIRD: No questions.

MR. VAN TRESS: No questions.

CROSS EXAMINATION

BY MR. SCHUTZ:

Q Dr. Webb, conceding that the examination and the findings of death are correct, is it not a fact that if this decedent, Joe Diaz, had fallen to the ground, taking


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into account there appeared to be no mark corresponding to that which would be produced by an instrument, isn't it a fact, taking those things into account, that if this decedent had fallen to the ground and struck his head on the ground or on rock-like substance, that the selfsame fracture could have been produced by that condition?

A I took that into consideration in examining the case. If you will observe the contour of the skull, you will find it is more eminent or protruding above this marked area of injury, and it would be that protruding portion that would have hit the ground if he had fallen on a smooth surface. Therefore, I concluded it was not due to a fall to the ground.

Q However, Doctor, I specifically stated, you will recall, in connection with the form of injury, whether this injury could have been produced by falling to the ground or in connection with a rock-like surface, although I refer not necessarily to a pavement, street or flat ground, but a place where rocks are found, where there are jagged rocks, where there was some rocky formation present?

A That is possible. The head could have hit a protruding rock or something else other than a smooth surface.

Q All right. Now, Doctor, you had occasion to observe, I suppose, the hands; they were likewise contused and swollen?


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A They were.

Q In your opinion, Doctor, would you — can you state if those contusions and that swelling resulted from blows administered by the deceased?

MR. BARNES: May we have that question read please? I am not sure I understood it. I think counsel said "blows administered by the deceased."

THE COURT: That is what he said.

MR. SCHUTZ: That is what I said.

THE COURT: In referring to the marks on the hands, as to whether they could have been produced by blows the deceased had struck.

MR. BARNES: I got the word "contusions" evidently mixed up with "fist."

THE COURT: You may answer, Doctor.

A The condition of the hands would indicate that they had been used in the apparent delivery of blows. You see similar contusions in cases of fighting with the fists.

Q BY MR. SCHUTZ: Now, Doctor, when you refer to contusion, in deference to my very limited knowledge, do I understand correctly that when a person is struck a blow upon the head that that — any blow can produce what you call a concussion of the brain?

A Not any blow, but a blow that is a severe blow will frequently cause concussion or contusion.

Q That is to say, a severe blow of the fist would


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likewise cause such contusion; is that true, Doctor?

A If it is a good, heavy, strong fist, it could.

Q Now, in other words, may I inquire, then, when two persons engage in the prize ring in a bout, if the blows struck in the course of that bout, assuming that these blows are struck about the head without any appreciable deflection, those blows could likewise produce concussion; is that correct?

MR. BARNES: I object to the form of that question. That is objected to on the ground it is irrelevant and no foundation laid for it in the evidence; it is an improper hypothetical question.

THE COURT: I think the question is directed to a point that irrespective of the question of the prize ring — I think the question, basically, is whether certain conditions could be produced by blows by the fists. I think I will permit the doctor to answer the question.

MR. BARNES: May I point out one thing? The nature of the question indicated that the blow would cause contusions. As to whether it could cause contusions, I have no objection. It is the wording of the question, primarily, that I have in mind.

THE COURT: I understood the question called for as to whether it could — perhaps we better have it read again.

(Question read.)

THE COURT: You may answer.


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A You say those blows could cause concussion. That is where I would agree with you. It is not usually just one blow, but it is a number of blows that brings about that condition.

Q BY MR. SCHUTZ: Well, all I was trying to arrive at, Doctor, was whether in your opinion those blows; as such, sufficiently severe, could produce what you term concussion.

A It could.

MR. SCHUTZ: Thank you very much, No further questions of this witness.

CROSS EXAMINATION

BY MR. RAVIN:

Q Doctor, would the chemical analysis which you made of the blood indicate to you that the deceased had done a considerable amount of drinking?

A I wouldn't say considerable. He had been drinking, but he was not to the point where I considered it intoxication.

MR. RAVIN: No further questions.

CROSS EXAMINATION

BY MR. COVIELLO:

Q Doctor, I would like to ask a question regarding the left ear. Have you observed People's Exhibit 3 for identification —

MR. SHOEMAKER: It is in evidence.


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Q BY MR. COVIELLO: Have you a copy of it there?

A I have a copy of it in my —

Q Is the one you are holding in your hand an exact copy?

A Yes.

MR. COVIELLO: Which is the exhibit, Mr. Barnes?

MR. BARNES: It is marked on the back. You are holding the exhibit that is in evidence.

Q BY MR. COVIELLO: I ask you to observe People's Exhibit 3, particularly the left ear, calling attention to a place around the left ear — I think in the photograph was crushed, the upper portion of the left ear, and right above there I notice there is evidently quite a bit of hair alongside the temple and near the left ear there.

A Yes, and likewise an abrasion there of the skin.

Q Now, aside from People's Exhibit 3, which is the photograph that I am holding, were there any other photographs taken, so far as you know, showing the left side of the head more fully than what appears on this photograph?

A No, I don't recall any other photographs being taken.

Q I take it, from your testimony, that it is your opinion that a blunt instrument of some kind was used or had been used in effecting or causing some injuries on this man's left side of the head?


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A It is my opinion that some instrument was used, a crushing injury to the left side of the head, but not on the face. Furthermore, that instrument must have been blunt, otherwise it would have cut into the flesh more deeply than was found.

Q Doctor, is it possible for you to tell us from your examination of the injuries there, especially at the time you performed the autopsy, what sort of an instrument could have been used to effect or cause these injuries? May I add to the question whether it was a metal instrument or of wood or other substance?

A I think a metal instrument probably would have had more of a macerating effect upon the soft tissues. Wood would not appear to have quite so much macerating effect. It is more typical of a wood blow or injury.

Q Could the injury to the left ear have been caused by the blow from a closed or clenched fist?

A It is possible, yes.

Q I would like to ask you, Doctor, Mr. Barnes asked you to indicate on the left side of his head about where that injury was that you observed on the head of the deceased. Now, I will ask you to observe my left ear, immediately along the left side of the forehead or the head here; can you tell whether or not there is any injury apparent to you, any former injury to the left ear appearing on my head now?


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MR. BARNES: We submit, that is not proper cross examination, your Honor.

THE COURT: Objection sustained.

Q BY MR. COVIELLO: Was the part of the left ear — any part of the left ear here that you see in People's Exhibit 3 for identification —

MR. SHOEMAKER: It is in evidence, Mr. Coviello.

MR. COVIELLO: In evidence?

MR. SHOEMAKER: Yes.

MR. BARNES: Yes.

Q BY MR. COVIELLO: Any part of the left ear in Defendant's Exhibit 3 in evidence cut, that is, cut open?

A I think you would find the upper portion of it not cut but broken open.

Q Was there bleeding from those breaks?

A Well, that I couldn't say. The blood had been washed away when I examined the case. It must have been from an injury of that kind.

Q Were you present, Doctor, when this photograph, People's Exhibit 3 in evidence, was taken?

A I was.

Q Could you tell us, please, when this photograph was taken, from your record?

A This photograph was taken by my assistant on the 3rd day of August, 1942, at — just prior to the autopsy, which would be about 11 o'clock on the 3rd of August.


166

Q How many hours, Doctor, would that be, approximately, from the time of death?

MR. BARNES: Just a moment. We submit there is no foundation laid for that in this: That it has not yet appeared that the doctor knows the time of death.

THE COURT: I think we ought to ask the doctor a preliminary question, whether from what he saw on the 3rd of August he was able to make any determination as to the time of death.

A My record shows the time of death at 4 a. m. on the 2nd day of August.

THE COURT: That was given you by somebody?

A That is my morgue report, by the man that brought in the body.

THE COURT: From an autopsy standpoint was there anything that enabled you to fix the time of death?

A No, sir. The body had been embalmed and there was no evidence of disintegration.

Q BY MR. COVIELLO: Doctor, was there any bleeding or any evidence of bleeding in the canal or inside of the left ear?

A Yes, there was some blood in the left ear, which made me think the fracture had extended down to that, but it must have been external bleeding and not from the fracture.

Q Was there any ecchymosis around the left or right eye?


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A At the outer angle of the eye and extending back along the scalp.

Q Doctor, in the course of your examination, at the time you took the autopsy there or performed the autopsy, did you observe the hands of the deceased?

A I did.

Q Particularly the knuckles?

A I did.

Q Were the knuckles bruised in any way?

A There was abrasion on the knuckles, as stated in my report, knuckles of middle and ring finger on left hand and the second finger on the right hand.

Q From your observation of the bruises you observed on the knuckles of the deceased, the hands of the deceased, can you tell us whether you are able to form an opinion as to how those bruises on the hands of the deceased and knuckles of the deceased were caused?

A The swelling was similar to such as you see when a person applies blows with the fist. As far as the abrasions go, I could not state. They could come from any cause.

Q Now, again calling your attention to People's Exhibit 3 in evidence, I notice some dark spots here, particularly under the left nostril of the nose on the upper lip; can you tell us what that indicated to you?

A That indicated abrasions from some blow or injury


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delivered to those parts.

Q May I ask whether there was any bleeding of the nose, as far as you observed, from the head of the deceased?

A That had been washed away when I saw the body.

Q Calling your attention to the dark spot here that appears in the corner of the lower right lip there, could you tell us what that indicates to you or what it indicated at that time?

A That the lip had been broken open due to some force applied, as the lips were markedly swollen.

Q Doctor, calling your attention to this dark spot that appears there on the right cheek bone of the deceased, in People's Exhibit 3, can you tell us what that black spot is or was?

A An abrasion of the skin.

Q Was there any blood on that?

A Washed away when I saw it.

Q Did I hear you say "washed away"?

A Had been washed away.

Q Before the picture had been taken?

A Yes, sir.

MR. COVIELLO: No further questions.

CROSS EXAMINATION

BY MISS ZACSEK:

Q Well, Doctor, before the picture was taken, the blood having been washed away, would you please describe


169
what these two lines are appearing both to the left and right of the nostrils?

A Those are abrasions where the skin has been partially broken through. A raw surface, in other words.

Q Doctor, would you be so kind as to point to some spot on my head where you believe the point of impact was that caused the fracture?

A In my opinion, it was at the side here near the prominence of the cheek, following back along the course of that sphenoid bone.

Q In other words, the high —

A High eminence.

Q High point of the cheek bone; is that right?

A Yes.

Q Doctor, you said you found 0.12 of alcohol contained in the blood of this deceased. Does your record show when that examination was made?

A That blood was removed as soon as the body was brought in at 7:30 on the 2nd.

Q 7:30 in the morning?

A No,— yes, 7:30 in the morning. He died at 4 a. m. and was brought in at 7:30. He died at 4 a. m.

Q Now, Doctor, it is true, is it not, that alcohol in the blood and brain oxidizes?

A If a person is living, can inhale or absorb oxygen, it will cause oxidation. But in a deceased there is very


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little change until disintegration or putrefaction takes place.

Q So it would be very difficult for you to make an assertion that would be correct or approximately correct as to whether or not a person was intoxicated in their lifetime, unless you knew the time element between the time that the person had consumed alcohol and the time the person had stopped taking alcohol and the time that he died; isn't that correct?

MR. BARNES: May we have that question read?

MISS ZACSEK: I think we can reframe it.

MR. BARNES: I am not sure I understood it. I may have an objection. I wanted to be sure.

MISS ZACSEK: In order to avoid any objection, I will reframe it.

THE COURT: All right.

Q BY MISS ZACSEK: Doctor, assuming an individual consumes alcohol or alcoholic beverages, and assuming that they become intoxicated because of such indulgence, and assuming further that the blood stream and the brain has a certain content, let us say, .015, which you described was the point of intoxication, now, Doctor, assuming that an individual ceased imbibing alcohol after the blood was, say, .015 and lived for a period of time, say, two and one-half hours, three hours, wouldn't oxidation of the blood take place at that time?


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A Every hour that a person lives,- and we are interested in the amount of blood at the time of injury, if such can be obtained — every hour they live after that, the alcohol content diminishes, but it takes at least eighteen to twenty hours to eliminate the alcohol from the body, to show a negative result.

Q Yes.

A A few hours makes very little difference.

Q Could you tell us in figures what the average elimination is per hour by reason of oxidization?

A You cannot place that on a uniform basis. The absorption takes place during the first thirty minutes, or first hour, according to the individual, and reaches its highest point. Then a gradual diminution takes place from that point in a curve, as you would place it, like that, and you could not say that it disappears one-eighteenth every hour; it would vary slightly.

Q And also it varies according to the nature of each individual, doesn't it?

A The oxidizing power will vary with different individuals to a certain extent, but not enough to be very markedly perceptible.

Q Well, isn't it true also of intoxication, that each individual's reaction to intoxication is individual?

MR. BARNES: We submit that that is not proper cross examination.


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THE COURT: You are getting beyond the subject matter.

MISS ZACSEK: Yes, all right. Besides, it is a matter of common knowledge.

Q Now, Doctor, you spoke of a contra coup, and you gave us the illustration of a marble in a box. Now, Doctor, can we take some other illustration, which would more nearly resemble the texture of the brain content, let us say a jar of preserved fruit? The texture of the brain is a very soft texture, is it not?

A It is.


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Q So it is very much like, say a preserved pear or preserved peach; is that right?

THE COURT: If you would put it in a jar it would be rather a hard thing.

MISS ZACSEK: What?

THE COURT: If you would put it up in a jar it would be rather a hard thing.

MISS ZACSEK: Well, no, no, I did not mean that, your Honor. I meant if you preserve a pear or a peach, cut it in half, put it in some syrup and put it in a glass jar and put the top on, you have a glass of preserved fruit. Your fruit is about the same consistency, roughly speaking as brain texture, is that right?

MR. BARNES: That is objected to on the ground it is too indefinite.

THE COURT: I will let the doctor answer it. I don't know how much he knows about preserved fruit, but we will find out.

THE WITNESS: I was trying to decide between a peach and a pear, which I preferred.

MISS ZACSEK: Well, they are pretty much alike, Doctor.

MR. BARNES: My wife's are not alike, your Honor.

MISS ZACSEK: How?

MR. BARNES: I say I can tell the difference between my wife's peaches and her pears.

THE COURT: Well, I was under the impression there was a


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difference in texture between the two fruits myself, but maybe I am limited in experience. Let's stick to the peaches.

MISS ZACSEK: All right, let's stick to the peaches. Certainly I maintain a peach is much more likely to resemble a brain texture of gray matter than a marble.

Q Now, Doctor, it is true, isn't it, that a preserved peach, a jar, are very much of the same soft consistency as brain texture; isn't that right?

A We will say it is quite similar.

Q Now, a good illustration, which I want to explain to the jury, and perhaps if I am wrong you will correct me: If you take a jar of fruit, that is in your hands, bearing in mind this contra coup, as you have explained it to the jury, isn't it true that if you take that jar with tightly packed peaches in syrup, and shook it violently, that you could shatter that fruit within the jar?

MR. BARNES: That question is objected to on the ground that no foundation is laid for it.

THE COURT: I do not think the doctor is qualified as an expert on preserves. The objection is sustained.

Q BY MISS ZACSEK: Well, all right, let's take then the matter of the brain, isn't it true that if you take the brain, as you have described it, being very soft tissue floating in a fluid, and held or surrounded by membrane, and then enclosed in bone, that that is a loose floating soft matter enclosed in the bone, that is right, isn't it?


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A It is —

Q All right, now.

MR. BARNES: Just a minute. Let the doctor finish his answer.

MISS ZACSEK: I think he said, "It is" and ended, but I am sorry.

MR. BARNES: He said, "It is."

THE COURT: Miss Zacsek, in view of the fact you had that floating, the doctor might want to make some comment on that.

MISS ZACSEK: Yes.

A The amount of fluid is not very great, and you would hardly say it was floating in that fluid. It is bathed in that fluid, and that fluid does act as a slight buffer. It is a very fine layer of fluid.

MISS ZACSEK: I stand corrected.

THE COURT: Doctor, roughly speaking, about how much space is there between the dura mater and the brain itself?

A Not over 1/8th of an inch.

THE COURT: You may proceed.

MISS ZACSEK: Floating was a very bad choice, I am sure, as you say.

Q There is enough fluid there, about 1/8th inch, so that there is constant lubrication; is that right?

A Well, it acts as a buffer and, to a certain extent, carries moisture to the brain tissue.


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Q Now, assuming that you could take a head and shake it as I have illustrated before, and continue shaking, you could fracture the brain, and shatter the brain content by contra coup?

A Oh, yes. We see brain tissue shattered in many of these automobile cases.

Q Yes. That could also happen with force applied with one sharp blow; isn't that right?

A A blow on the head could do the same thing, certainly.

Q A blow on the face could do it, couldn't it?

A Not so likely to be transmitted from the face as it would be from the side of the head.

Q But it could do it, couldn't it, Doctor, speaking of the contra coup?

A Yes, yes, it could do it.

Q Yes. For example force applied with just the right amount of both force and speed by being applied to say the point of the chin could cause this brain to have a contra coup at the back of the head; isn't that right?

A It would.

Q To the back of the head, and the back of the head would suddenly show a burst of blood, and you would have this subdural hemorrhage; isn't that right?

A That is possible.

Q Well, it is likely, isn't it, if we had the correct application of force to the point of the chin that you have


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made with a contra coup, you would have the injury to the back of the head, wouldn't you?

A You would expect to find that contra coup at the point opposite the point of the contact.


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Q That is why I indicated, if the force was applied to the point of the chin, then the contra coup would appear at the base of the skull; isn't that right?

A No, it would appear in the parietal lobes of the brain, because the transmission of that force would be through the articulation of the jaw with the temporal bone, and it would be in that area that you would get that contra coup.

Q Anyway, it would be away from the point of impact; is that right?

A It would.

Q Now, you said, I believe,— strike that out. In other words, it is really the force of the brain moving within its fluid and within its bone content, and then suddenly being stopped, the bone stopped and the brain still moving, and then that force, that is the cessation of force finally being carried to that gray matter, that is what caused the contra coup and the shattering, isn't it?

MR. BARNES: We submit that question is unintelligible, if the court please.

THE COURT: Maybe the doctor knows what Miss Zacsek is getting at.

MISS ZACSEK: I could stay with my fruit and I could have illustrated it fine, but this way I am sort of lost.

A Well, it is the impact against the resistance of the bony wall of the skull that causes the contra coup of the


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brain.

Q Yes, but it is the moving, in other words, the brain moves along within its walls and fluid, and then if the bone is suddenly stopped and the brain is still moving, which it would, it would then come against that bone, wouldn't it?

A The resistance of that bone.

Q Yes, and that is what causes it?

A The contra coup.

Q The hemorrhaging or your shattering of the brain and your subsequent injury, isn't that right?

A It is.

Q All right. Now, bearing that in mind, Doctor, is that the reason why you state you could not localize what caused this subdural hemorrhage?

A I could not localize any definite broken blood vessel, because there are many minute blood vessels over the surface of the brain, and I could not isolate any one particular vessel that was ruptured. That is the reason I did not localize the hemorrhage.

Q Now, all these questions that were asked of you on direct examination really as to what could happen, assuming that Jose Diaz had lived, tell me, Doctor, can you see subdural hemorrhage through the X-ray?

A You may get a shadowing and a definite space between the density of the brain and the density of the bony wall


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and localize it. Subdural hemorrhages have been located by X-ray prior to operation.

Q Can you tell from the X-rays sufficiently, or even from spinal punctures to get the blood content of the spinal fluid, whether or not or, rather, the extent of the injury to the brain?

A You cannot determine the extent of the injury to the brain until some time following the accident when certain developments show what injury has been done.

Q So that it would be very difficult, wouldn't it, to say exactly what the ultimate upshot might have been to Jose Diaz had he lived?

A You cannot make a definite prognosis but you can state as to the severity.

Q Yes; that is it, you cannot make a definite prognosis, that is right.

A Not a definite prognosis, but you can state the severity.

Q Now, Doctor, I am very, very confused by this, and that is why I asked you. You pointed out this —

THE COURT: We are running rather far. We are running so far over our recess time already, I think we had better take a recess. We will take our recess now and resume after we return, and we will take a recess at this time until 3 o'clock. The jury will keep in mind the admonition not to talk about the case or form or express


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any opinion. May I ask counsel to remain just a moment after the jury has retired?

(The jurors left the courtroom and the following proceedings were had in their absence:)

THE COURT: Just a moment, gentlemen. May I ask counsel something? The jurors have suggested that it would help them considerably if they had an alphabetical list of the defendants. Does anybody know of any reason why it should not be had?

MISS ZACSEK: No. Not only that, but I join in that request, and if there is going to be one I would like to have a copy, too.

MR. BIRD: I would like to have the jury have all the help they can to segregate the sheep from the goats.

MISS ZACSEK: Meaning us?

MR. BIRD: Oh, no, no.

THE COURT: I remember some old statement about "If the cap fits," and so forth.

MISS ZACSEK: That is why I took it up.

MR. BARNES: If the court please, we considered it and we suggest now that we prepare a chart of the names and have it placed up here, as to where each of the defendants sits.

MR. SCHUTZ: I would not particularly approve of that.

THE COURT: There is some question as to whether or not that might not be subject to possible criticism, but you


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may have—

MR. BARNES: We can prepare a list in alphabetical order.

THE COURT: Have you any objection to an alphabetical list?

MR. VAN TRESS: No, we haven't any objection to that.

MR. BIRD: I might suggest that Mr. Barnes, when he has the list made up, arrange it in some form similar to the way the defendants are seated.

MR. BARNES: We will be glad to do that.

THE COURT: All right.

MISS ZACSEK: Could you provide us a copy, Mr. Barnes? If you do we will be grateful.

MR. BARNES: Absolutely, six copies, and in addition to that one for the court.

THE COURT: I would appreciate that.

MR. BARNES: How about the clerk?

THE COURT: I think a few extra copies would help us, because we can use them.

MR. BARNES: All right, and then we will see that they are prepared tomorrow morning.

(Short recess.)

THE COURT: The record will show all parties present. You may proceed.

Q BY MISS ZACSEK: Doctor, I think you said something on direct examination to the effect that the blow that


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was administered was administered — the blow, rather, that caused the fracture was administered by some blunt instrument, otherwise the cutting of the flesh would have been deeper; is that right?

A If it would have been a sharp-edged instrument it would have cut into the flesh more.

Q More. As a matter of fact, there wasn't any cut at all, was there?

A There was an abrasion over the ear and at the outer angle of the eye.

Q But no cut?

A No cut; it was an abrasion which I attributed to a blunt instrument rather than a sharp instrument.

Q An abrasion could be caused by, as we say, knuckles?

A Yes, it could, but this line of injury had such a direct course and of a narrower type that I attributed it to some instrument rather than the bare bruising that a fist would cause, and, well,—

Q Well, I did not say fist, Doctor, I said a knuckle — a knuckle. If the —

MR. BARNES: I think counsel interrupted the witness. The doctor started to say, "Well," and counsel interrupted.

MISS ZACSEK: Will you conclude your sentence, please?

A If it was a knuckle, I do not think you could deliver a blow with a single knuckle over an area like that without involving the entire fist.


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Q Well, Doctor, a fist, as it seems, even of my own, doubled up like this, there seems to be a high point; it seems to be sort of rounded, and the middle finger seems to be higher than the knuckle there or than any other point; isn't that right?

A That is very true, but if you try to strike a blow with that fist you will find the other knuckle would be involved as well as that prominent knuckle.

Q Would they?

A Yes, ma'am.

Q Well, I don't know, let's see —

A Don't hit me too hard.

Q I am not going to hit you at all. Of course, that is a hard surface —

A Yes, but you give a blow sufficient to cause injury such as found in this case, with severe bruising, you would find that the knuckle would bury itself into the tissues and would involve all the knuckles rather than one.

Q So, then, it is your opinion, Doctor, that a fist closed, delivering a blow with sufficient force to cause a fracture, could not produce, by reason of one knuckle, an abrasion on any given high point of the cheek bone; is that right?

MR. BARNES: That is objected to —

THE COURT: That was not what the doctor said. You are putting words in the doctor's mouth. He was referring to


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this particular injury.

MISS ZACSEK: Yes.

Q Well, the injury was on the high point of the cheek bone; is that right?

A Yes, as shown in the —

Q Just under the socket of the eye.

MR. BARNES: Just a moment. If the court please, counsel is limiting in her question to one portion of what the doctor said. He did not say that the injury was to the high point of the cheek bone. He said it began there and extended over to the top of the ear, in his opinion. We submit the question as propounded lacks foundation. It is not what the doctor said and not what he found.

THE COURT: Well, whenever you predicate a question upon a previous answer of the witness, you should use the previous answer of the witness and not the modification of it, if you are going to ask for an explanation.

Q BY MISS ZACSEK: Doctor, you said a question or two — in answer to a question or two before this last one, that there was a direct line of injury, in other words, the fracture had a definite line beginning with the high point of the cheek bone and traversing the temple and continuing for a distance of 2½ to 3 inches; is that correct?

A No, it went inward from the cheek bone, not following along the temple; it followed along what we call the sphenoid. It would have involved other bones if it had


186
passed horizontally back from the point of contact, but it was inward, the way it extended.

Q But inwardly in a straight line?

A Practically a straight line.

Q Inwardly?

A Yes, ma'am.

Q The bone underneath the cheek bone and temple, that is right, that is the sphenoid?

A Yes.

Q And it is still a straight line inwardly?

A A straight line, yes.

Q Now, that fracture did not start at any point except the high point of the cheek bone?

A Inside of that point it started, yes.

Q Yes, inside of that point, and it traveled in a given straight line inwardly?

A Exactly.

Q Is the bone particularly thin, this sphenoid bone?

A Not particularly thin, although it is not as heavy as some of the other bones of the skull.

Q Then did the line follow the line of least resistance?

MR. BARNES: That is objected to as calling for a conclusion of the witness, and no foundation laid for that.

MR. VAN TRESS: He is qualified.

THE COURT: I am not quite sure as to what the question means myself. Suppose you reframe it.


187

Q BY MISS ZACSEK: The blow started at this high point of the cheek bone and followed along this straight line inwardly and along the sphenoid, which you said was thinner than any of the other bones of the head?

THE COURT: Oh, no. Just a moment. The doctor did not say that. He did not say the sphenoid was thinner than any other bone in the head, did you, Doctor?

A No. I said it was not one of the heavy bones of the head, but it is not the thinnest bone.

Q BY MISS ZACSEK: It is not the thinnest bone of the head?

A Well, the formation of the lesser ring there in articulation with the frontal, I would consider fairly heavy and resistant, as compared with some other parts of the brain, such as the temporal region where the bone is usually much thinner.

Q Now, the line suggested, such as you have indicated, to get back to this line of least resistance, the phrase which I have used, would the crack follow any particular course or would it follow the — what would cause it to follow along in a straight line?

A The figuring of the course of a fracture of the skull and why it should take a particular course is a very difficult thing to determine on account of the curvatures and angles found, but it usually follows the course of the


188
force of the blow.

MR. SHOEMAKER: May we have the last answer read? He is talking without the instrument again. Will you read the last answer, Mr. Kennelly?

(Answer read.)

Q BY MISS ZACSEK: Then it follows, doesn't it, Doctor, that the course of this force is the determined line that you found in the fracture in the skull of Diaz?

MR. BARNES: We submit that that question is too indefinite, if the court please.

THE COURT: Well, it is a statement and not a question. Sustained.

Q BY MISS ZACSEK: Isn't it true then, Doctor, following what you have said, that the force, whatever it was that was applied to the cheek bone, being in a certain angle or direction, was the determining factor as to the line that the fracture took?

A I would say the application of the force was a very important factor in determining the course of the line of fracture.

Q Doctor, there were no cuts on the scalp; is that right?

A What is that?

Q There were no cuts on the scalp?

A No. He had an exceptionally heavy head of hair and it acted more or less as a buffer along the side of the head


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there.

Q Isn't it true that all Mexicans have exceptionally heavy heads of hair?

MR. BARNES: That is objected to upon the ground it is not within the province of proper cross examination.

THE COURT: I think it is immaterial, anyhow.

Q BY MISS ZACSEK: At any rate you found no cut or no indications on the scalp that would indicate any connection with this fracture which you have told us about?

A No cuts but ecchymosis or bruising was evident.

Q And that ecchymosis of the —

A Scalp.

Q — scalp could have been caused by any number of things; isn't that right?

A Any application of force could cause it.

Q That is right. And any instrument that would have an edge would have left a mark on that cheek bone of Jose Diaz that you could have seen in your autopsy; isn't that right?

MR. BARNES: That is objected to on the ground that it assumes that a blow would be struck by the edge of the instrument having the edge. No foundation laid for that question.

THE COURT: I think that is the difficulty, the mere fact the instrument has an edge does not mean that the edge struck the blow.

MISS ZACSEK: Very well. I will withdraw it and reframd


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it.

Q The instrument could have been any number of objects, couldn't it?

A I don't know from an injury that way that I could state definitely what instrument was used. The only statement I made was that if the sharp edge of an instrument hit the head it would have cut the flesh more deeply.

Q That is right.

A A blunt instrument would have been more likely to cause an abrasion or a laceration of the skin rather than cutting.


191

Q Now, Doctor, a further question. You mentioned the prize ring — the question was asked you on direct examination. In the prize ring when men received repeated blows on the face, their face also swells, does it?

A It does.

Q And the nose bleeds occasionally?

A Yes.

Q Lips are cut occasionally?

A Yes.

Q Sometimes the leather of the glove causes abrasions on the flesh so that the skin is actually brushed right off; isn't that right?

A Very true.

Q Did you find any marks about the body of Jose Diaz other than what you have told us?

A No, there didn't seem to be any surface injuries to the body or limbs except as described on the hands and head.

MISS ZACSEK: Thank you, Doctor. That is all.

MR. BIRD: One matter is not clear to me. May I ask a question?

THE COURT: Yes, you may, Mr. Bird.

CROSS EXAMINATION

BY MR. BIRD:

Q This analysis as to the alcoholic content, that was an analysis made of blood from the brain, or does it have


192
to be blood from the brain?

A Blood is drawn from the body as soon as the body is brought in, before any embalming fluid or foreign substance is added.

Q Would it make any difference what part of the body the blood was drawn from for the purposes of this analysis?

A Absolutely not.

MR. BIRD: That is all. Thank you.

MR. BARNES: May I ask one question? I am not sure that this is proper redirect, although it may be. May I ask it, in any event? If it is not —

THE COURT: You may ask the question, if it is a proper question, on the theory of either direct or redirect.

REDIRECT EXAMINATION

BY MR. BARNES:

Q Doctor, from what you saw of the face of Jose Diaz, did you form an opinion as to whether or not there had been many or few blows struck upon the face to cause those injuries which you saw there?

THE COURT: You may answer.

A It was my opinion that there were many blows delivered to cause the swelling of the face and the condition of it.

Q BY MR. BARNES: When you say "many", can you give us an estimate of what you mean by "many", whether it means two or three, or ten or twelve or —


193

A I would rather think probably ten, or around there, would be more likely than two or three.

MR. BARNES: That is all, Doctor.

MISS ZACSEK: May I ask one further question?

MR. RAVIN: Let us take it in order.

MR. BIRD: I do not have any further questions.

RECROSS EXAMINATION

BY MR. VAN TRESS:

Q Doctor, as I understand, you stated the injuries on the face could have been caused by a fall to the ground and the same bruises caused thereby?

MR. BARNES: I object to that on the ground it is assuming facts not in evidence, and immaterial.

THE COURT: It is absolutely immaterial to inquire as to what a witness' previous testimony is. That is why we have a daily transcript.

MR. VAN TRESS: I will reframe it.

Q Do you know of your own knowledge whether or not the appearance of the face of the deceased was caused by the application of blows or by the face coming in contact with the ground, such as a fall?

A The distribution of the blows over the face indicated to me evidence of fist blows rather than striking the ground or what you might call a plane surface.

Q Now, assuming the surface was not a plane, but was rough or uneven, would you still say that what appears on


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the face were caused by blows?

A I would say, then, that he must have fallen not once but several times to get the distribution of the bruised areas over that area.

Q Assuming that he fell not once but more than once, he could still have received those bruises from falling, could he not?

A The application of force could bring on those bruises.

MR. VAN TRESS: That is all. Thank you.

RECROSS EXAMINATION

BY MR. SCHUTZ:

Q If a trauma is sustained — withdraw that. With relation to the blow on the lefthand side of the subject's face which produced the fracture, is it possible if a single blow were delivered, there would be a radiation or, say, a spreading of the traumatic area so as to produce both contusion and swelling?

MR. BARNES: We submit that is not proper recross examination.

MR. SCHUTZ: In view of the doctor's declaration —

THE COURT: I am not so much concerned about that. I think the question ought to be reframed somewhat, because it is confusing in the form in which it is put.

MR. SCHUTZ: I will reframe it.


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Q Assuming that a single blow produced the fracture of the sphenoid bone that you have testified to, proceeding upon that assumption would that blow in and of itself have a tendency to produce both swelling and ecchymosis over an area radiating away from the actual impacted point of the blow?

A It would radiate from that point of contact. But in this case it was so extensive in a straight line that it differed from the ordinary radiation from a single blow.

Q My question is whether it would be radiating from the impacted area, that is, the area which was hit, or where the trauma actually took place?

A It would.

MR. SCHUTZ: Thank you, Doctor. I have no further questions.

MR. COVIELLO: I have no further questions.

RECROSS EXAMINATION

BY MISS ZACSEK:

Q Doctor, can you state whether or not there were many or few blows dealt out by the deceased which caused the condition of the swelling of the hands and the abrasions or contusion of the knuckles?

A One severe blow with the fist could sometimes produce similar swelling or abrasion of the knuckles. Again, other times it may be a number of blows of the fist to produce that condition. I could not separate one from another.


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Q I see. Just one last question. I believe you stated any application of force to that cheek bone could have produced that injury; is that right?

A Could have produced injury of that area, yes.

MISS ZACSEK: Thank you.

THE COURT: Anything further?

MISS ZACSEK: That is all.

MR. BARNES: If it is back to us, I have one question, in view of Mr. Schutz's question.

REDIRECT EXAMINATION

By MR. BARNES:

Q Doctor, in your opinion would the injury on the side of the head, which you have described as probably being caused by a blunt instrument and in the manner that you illustrated heretofore when you used me as a subject, account for the other injuries and swelling about the face that you see in this picture of Jose Diaz?

MR. SCHUTZ: We submit that is not proper direct or redirect examination. The doctor has testified to many blows being struck, which had made — where a blunt instrument hit the face.

THE COURT: I am not drawing the lines very closely as to direct and redirect examination.

MR. SCHUTZ: I appreciate that.

THE COURT: I think the question is a proper question to be asked, and the doctor may answer it.


197

MR. BARNES: I had in mind particularly the cross examination of Mr. Schutz when he asked something about the radiation of a blow and the subsequent swelling from it.

Q I am directing your attention now, Doctor, to the face as you saw it at the time of your autopsy. Do you in your opinion believe that those various injuries to the face, as you saw it there, could have been caused by just one blow on the head?

A No, sir, they could not.

THE COURT: Anything further?

MR. BARNES: That is all, your Honor.

THE COURT: All right, the doctor will be excused.

MR. COVIELLO: Just a moment, please. I understood this question really is a question on redirect. If that is the purpose of it we would like to cross examine a little further on it.

THE COURT: You can cross on that particular subject.

RECROSS EXAMINATION

BY MR. COVIELLO:

Q Doctor, a moment ago when — or earlier this afternoon, I asked you to describe the dark spot or place — what the dark spot was on the right cheek bone, or immediately near the right cheek bone, on the right side of the deceased, and you told us, I think, that that was blood or had been a bruise and where the blood had been washed away?

A The blood had been washed away, but the darkness is


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due to an abrasion where the skin has been slightly abraded from its surface.

Q When Mr. Barnes asked you about the place, it appeared to you from your examination that the deceased had received a number of blows or more than several blows, in other words, on the head. Do you have in mind that the blows that the district attorney referred to were blows with a fist or with the hand or with any weapon, or any metal or wooden object of any kind?

A The only indication of an object or instrument being used was on the side of the head. The place on the face had the indication of fist blows.

Q When you told us that there was evidence of many blows, did you mean by that answer there could have been many blows of the fist inflicted on the head of the deceased?

A Yes, sir.

Q Doctor, did it appear to you that the deceased had been punched in the face?

A The nose was not bleeding when I saw it, although it was somewhat swollen. The cheeks and lips showed more evidence of swelling than other parts of the face.

Q Calling your attention to the mouth and the teeth, or the interior of the mouth, may I ask you whether or not you observed there were any injuries in the interior of the mouth around the teeth?

A I did not observe any injuries to the teeth.


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Q Did the nose indicate that it had been washed before this People's Exhibit 3 in evidence had been taken?

MR. BARNES: Your Honor, we submit —

THE COURT: That has been gone over at least twice, Mr. Coviello.

MR. COVIELLO: I will reframe the question.

THE COURT: I know, but our examination was limited to the number of injuries to the hand, and should be limited to that.

MR. COVIELLO: I will reframe the question.

Q Aside from the injury or bruise to the right — over the right cheek bone, the right side, you found there was evidence of blood having been washed from that injury, was there any evidence of any other washing of blood from any other portions of the deceased's head?

A The entire body, face and features had been throughly washed before this photograph was taken and before I made my examination. The dark spots shown there are not due to hemorrhage; they are due to abrasions in the skin.

Q Doctor, is it not true if the deceased had received a solid blow or a hard blow immediately over the left ear, there would have been internal hemorrhage of the inner ear, left ear?

A Not necessarily. There would have been hemorrhage from it, but not necessarily internal; external hemorrhage.


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Q Well, in sum and substance when you told us in answer to the district attorney's question about the blows, the evidende of of many blows, those blows that you referred to in your answer could have been inflicted with a fist and not in any other manner?

A I referred to what appeared to be fist blows.

MR. COVIELLO: Nothing further.

THE COURT: That will be all, Doctor.

THE WITNESS: Thank you, Judge.

(Witness excused.)

MR. SHOEMAKER: Call Juanita Gonzales.

MISS JUANITA GONZALES, called as a witness on behalf of the People, was duly sworn and testified as follows:

THE CLERK: State your name, please.

A Juanita Gonzales.

DIRECT EXAMINATION

BY MR. SHOEMAKER:

Q Miss Gonzales, if you will use this microphone, talk right into it like you would talk into a telephone. Can you reach it all right?

A Yes, sir.

Q You will have to get your mouth in front of it just like you talk into a telephone. How old are you, Miss


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Gonzales?

A Fifteen.

Q Fifteen?

A Yes, sir.

Q When was your fifteenth birthday?

A September 26th.

Q September 26th?

A Yes, sir.

Q This year?

A Yes, sir.

THE COURT: Last year, I think.

Q BY MR. SHOEMAKER: You live with your mother at what address?

A 2103 East 37th Street.

Q 2103 East 37th Street?

A Yes, sir.

Q You will have to talk as plainly as you can; talk right into that, please. Will you put your mouth in front of it, please?

(Witness does as requested.)

Q That is right. What class are you in in school?

A B-9.

Q Where do you go to school?

A I used to go to Vernon City.

Q Where do you go now?

A I don't go to school.


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Q You were in B-9 in the Vernon City School?

A Yes, sir.

Q How long have you lived at 2103 East 37th Street?

A I think for five years; I don't know; I am not so sure.

Q Are you sometimes known as Jennie?

A Yes, sir.

Q Do you have a sister named Josephine?

A Yes, sir.

Q Is Josephine two years older than you?

A No, she is one year older.

Q I beg your pardon?

A She is sixteen.

Q She is sixteen?

A Yes, sir.

Q Are you familiar with the locality at the corner of Vernon Avenue and Long Beach Avenue in the City of Los Angeles?

A You mean do I hang around with them?

MR. SHOEMAKER: What was that answer, Mr. Reporter?

(Answer read.)

Q I asked you if you are familiar with that neighborhood?

A Yes, sir.

Q What is your answer?

A Yes.

Q Have you been down there frequently?


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A Yes.

Q Have you been there in company with other people?

A Yes.

Q I mean, have you been there with boys and girls?

A I have been there with boys and girls.

Q Have you given any name to that locality?

A No.

Q What do you call that place?

A We call it the 38th Street Gang.

MR. SHOEMAKER: What was the answer, Mr. Reporter?

(Answer read.)

Q What is it you call the 38th Street Gang?

A The gang, that is all.

Q A gang of what?

A Boys and girls.

Q A gang of boys and girls?

A Yes.

Q How long have you been acquainted with that gang of boys and girls?

A I just went out with them that night.

Q What night was that?

A Saturday.

Q The 1st day of August, 1942?

A Yes, sir.

Q Had you been around with any members of that gang before that?


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A No, sir.

Q Had you heard of that gang before that evening?

A Yes, sir.

Q You had?

A Yes.

Q How long had you known about it?

MR. VAN TRESS: I object to that as incompetent, irrelevant and immaterial. It is hearsay as far as the defendants whom I represent are concerned.

MR. SCHUTZ: As far as the defendants I represent are concerned, I object to it as hearsay.

MR. VAN TRESS: It does not tend to prove this conspiracy.

THE COURT: Overruled. It may be purely preliminary. You could hardly prove a conspiracy until you are able to show a person knew the ostensible members of the conspiracy.


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MR. VAN TRESS: And the further objection it is not evidence in pursuance of the purpose of a conspiracy.

THE COURT: I don't know of any rule that says the evidence must be in pursuance of the conspiracy.

MR. SCHUTZ: May I add, if the court please, I believe the question was how long she knew of the existence of this organization. That would not tend to prove or disprove any issues of fact here, whether it be related to a conspiracy or to the crimes alleged to have been committed.

THE COURT: It might be preliminary to the next question which might go into further detail.

MR. SCHUTZ: I will have to forbear until the next question.

MR. BARNES: It would also have a bearing, if the court please, on the status of this particular witness.

MR. VAN TRESS: I would like to state this, if the court please, I would like to approach the bench for that purpose.

THE COURT: I think of a further reason, it might bear upon the possibility of Section 1111 of the Penal Code.

MR. BARNES: That is one of the things we had in mind.

THE COURT: That, of itself, would make it admissible.

MR. BARNES: As it also might — counsel has stated the status of this witness may be involved as one thing — I would rather make the statement, if I may at the bench.

THE COURT: I do not think it is necessary. I think it is perfectly, obviously admissible.


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MR. SHOEMAKER: Will you read the question, Mr. Reporter?

MR. VAN TRESS: This witness should be advised as to her constitutional rights, if the court please, because this line of questioning is attempting to use this witness not as a member of this alleged gang, and if this prosecution is successful in doing that, anything that this witness says may be used against her. She is subject to arrest and a charge of murder just the same as these defendants.

THE COURT: We will cross our bridges when we get to them. We haven't gotten to that point yet.

MR. SHOEMAKER: Will you read the question, Mr. Reporter?

(Question read.)

MR. SHOEMAKER: Did you hear the question?

A No, sir.

Q How long have you known about it?

A What?

THE COURT: I think the "it" —

A For quite a while.

Q BY MR. SHOEMAKER: How long would you say, several years?

A No.

Q How long?

(The witness shook her head in the negative.)

MR. SHOEMAKER: You shook your head?

A Yes, sir.

Q Had you known about the 38th Street gang as long as


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six months prior to August 1, 1942?

A Yes.

Q As much as a year?

A No.

Q What is that?

A No, not as much as a year.

MR. SHOEMAKER: What is the answer, Mr. Kennelly?

(Answer read.)

Q BY MR. SHOEMAKER: Some time between six months and a year; is that right? What is your answer?

A I don't know.

MR. SHOEMAKER: You shake your head?

A Yes.

Q On Saturday, August 1, 1942, did you go to the vicinity of Sleepy Lagoon?

A I refuse to testify.

MR. SHOEMAKER: What is her answer?

(Answer read.)

MR. VAN TRESS: What was the answer, Mr. Reporter?

(Answer reread.)

Q BY MR. SHOEMAKER: Upon what grounds do you refuse to testify?

A On the grounds you may charge me for the murder of Joe Diaz, like you done to the boys.

MR. SHOEMAKER: What is the answer, Mr. Kennelly?

(Answer read.)


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MR. SHOEMAKER: Will you read the last question I asked, Mr. Kennelly?

(Question read.)

MR. SHOEMAKER: I will withdraw the question.

Q Where were you on the evening of Saturday, August 1, 1942?

A Again I refuse to testify.

MR. SHOEMAKER: I cannot hear the witness.

(Answer read.)

Q BY MR. SHOEMAKER: On what ground?

A On the same ground I told you, you may charge me with the murder of Joe Diaz as you charged the boys.

MR. SHOEMAKER: If the court please, we request that the witness be directed to answer the question.

THE COURT: I think the answer is one which may tend to incriminate her on the alleged offense, so directing an answer which would have the tendency of showing a possible association, I do not think the court should force the witness to answer.

MR. SHOEMAKER: At this stage of the case, if your Honor please, without it appearing that this witness is directly or indirectly involved criminally in this case, would it not be proper to require the witness to give testimony and to answer these questions?

THE COURT: I do not think so. The rule is quite definite in that the answer must connect the individual or


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it would have a tendency to do so, and a question which would merely place the witness upon the scene of an alleged offense would be evidence tending to connect the witness with that offense and that would be one which the witness could refuse to answer.

MR. SHOEMAKER: But if the witness merely seeks refuge from questions to obtain the advantage of refusing to answer questions merely by resort to that usual answer of refusing to answer a question on the ground it might incriminate her, are we confronted with the impossibility of obtaining that testimony?

THE COURT: You are confronted with exactly that situation, if the answer is one which, upon its face, could be used against the witness, in the event of her prosecution for the offense under consideration which would be the crime presented here by this indictment.

MR. SHOEMAKER: Very well. I will ask some other questions.

MISS ZACSEK: I would like at this time, if I may address the court, and request the court, in order to clear this record, to advise this witness as to her constitutional rights.

THE COURT: She has not shown herself in need of advice up to the present time.

MISS ZACSEK: Well, that is not the reason of my question. I would like the record to show, because there will be, of course, continuation of questions and objections, and so forth,


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and I would like at this stage,- I think that the court's ruling is fine,- I mean it is lovely,- but I would wish the court to address the witness and explain to her, in language she can understand,- after all, she is a child, she is here on the witness stand, she is surrounded by hostile forces to her, at least.

MR. BARNES: That is not a fact, your Honor. She is not surrounded by any hostile forces. The fact she is —

THE COURT: Not only that, but I think it is perfectly—

MR. SHOEMAKER: She is called her —

THE COURT: Gentlemen, please. I think it is quite evident that from some source or other, this witness has acquired the knowledge of her right to refuse to answer if the question is one which tends to incriminate her. I think that is particularly obvious from the fact that the simple question of inquiry as to where she was on a particular evening is one which she refused to answer upon that ground. It is a question which is just on the border line between those questions which the court would say the witness need not answer and those which the witness would be required to answer. I got the impression from the witness' answer that she has been very well informed as to her constitutional rights.

MR. SHOEMAKER: May we inquire by whom she was so advised?

THE COURT: I do not think it is necessary and I do not think it would be proper.


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We have arrived at our recess time and we will take our recess until 9:30 tomorrow morning. The jury will keep in mind the admonition heretofore given, not to talk about the case or form or express any opinion.

(Whereupon an adjournment was taken until Wednesday, October 21, 1942, at 9:30 o'clock a. m.)


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WEDNESDAY, OCTOBER 21, 1942; 9:30 O'CLOCK A. M.

(The following proceedings were had in the absence of the jurors:)

THE COURT: In the case on trial I specifically requested the bailiff not to bring the jury down at this time, because of what I am going to say in connection with this proceeding. Whether intentionally or not, yesterday while the last witness was on the stand one of defense counsel was nodding his head in a manner which may or may not have been a signal to the witness. I am giving counsel the benefit of a doubt at this time. If that happens again something is going to happen very seriously to any person who does that.

MR. SHOEMAKER: I want to say for the record each time before the witness answered a question during the conclusion of yesterday afternoon's session she was looking down at defense counsel, obviously; whether or not she was receiving signals I have reason to believe that certain things were going on.

THE COURT: I had the situation in mind. I have no doubt as to the ability to establish just exactly what happened. I have this in mind, however, — I want to be just as fair as I can in the matter of counsel: Sometimes I have seen persons innocently nodding in synchronization with the witness' testimony involuntarily and it may look


213
like a signal. However, I think, after cautioning, if it is repeated we will know it is intentional.

There is another thing I want stopped very definitely, and that is when we take a recess I want these defendants — there are a large number of them — taken to the prisoners' room and I do not want anybody to stop those prisoners and try to talk to them. If counsel want to talk to their clients they will have to do it at some other time.

MISS ZACSEK: In that connection, does the court object if we take money from their relatives or friends in the courtroom?

THE COURT: Yes; I do not want anything of that sort. I want the defendants to go uninterruptedly to the prisoners' room. If their relatives or anybody else is so anxious to communicate with the defendants they may do so during visiting hours.

Another thing. I do not want any congregations in the hallway in which counsel and witnesses or in which counsel and relatives go into huddles. In other words, after the sessions if there must be conferences have them in your office. I do not want any more discussion of matters concerning this trial in the elevators. You will have to bear in mind that witnesses and jurors go down the elevators. I have cautioned the jury, and I am cautioning counsel now.

One other thing has come to my attention, that two of counsel for the defense have declared an intention to interpose


214
obstructive tactics during the course of this trial. I will take care of that if it happens. You may call the jury.

(The following proceedings were had in the presence of the jury:)


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(The jurors returned into the courtroom and resumed their seats in the jury-box.)

THE COURT: The record in the case of People vs. Zammora and others will show the jury, counsel and defendants present. We had a witness on the stand at the time of adjournment.

MR. SHOEMAKER: Yes, Juanita Gonzales, your Honor.

THE COURT: As a memorandum, Mr. Reporter, also, the court will request that what was stated to counsel be incorporated in the record and a copy furnished to each counsel.

MR. BARNES: May it please the court, I want to apologize for not having that list prepared this morning. Unfortunately, due to the pressure of business on the case, I have not yet been able to have it prepared.

THE COURT: We can get it as quickly as we can.

MR. BARNES: I will try and get it today sometime.

JAUNITA GONZALES, recalled:

MR. SHOEMAKER: Juanita, if you will pull your chair over a little bit this way, please, and put the microphone right up where you can talk into it, we can hear you better.


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DIRECT EXAMINATION

BY MR. SHOEMAKER:

Q Juanita, do you know where the Williams ranch is located?

A I told you yesterday I refuse to testify.

MR. BARNES: We cannot hear.

MR. SHOEMAKER: I cannot hear, if your Honor please.

(Answer read.)

THE COURT: You can answer that question.

THE WITNESS: Where it is located?

MR. SHOEMAKER: Yes. Do you know where it is located?

A By the Sleepy Lagoon.

Q Do you know where the Sleepy Lagoon is?

A Yes.

Q Have you been there?

A Yes.

Q How many times have you been there?

MR. SHOEMAKER: What is the answer?

THE REPORTER: I did not hear it either.

THE COURT: "My uncle lives by it."

Q BY MR. SHOEMAKER: How close does your uncle live to the Sleepy Lagoon? Juanita, for your help, let me call your attention to the fact that we have in evidence in this case two maps, one known as Exhibit 1, which is on the floor to your right, which shows Sleepy Lagoon. I will stand back, if I can, out of the way of the jury. Do you


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see this map, Juanita, marked No. 1?

A Yes.

Q Now, in order that you may understand the directions, north is toward the top where it is marked "N"; do you see that?

A Yes.

Q And east is to the right where it is marked "E"; south is to the bottom where it is marked "S"; west is to your left where it is marked "W," just like any map that you looked at on the wall, so far as directions are concerned. Now, there is marked on this map something called "Sleepy Lagoon" and then there is a traveled road indicated through the field there to a group of houses in a circle. Do you see that? You nod your head. Will you speak up so the reporter can hear you?

A Yes.

MR. SHOEMAKER: He has to take down everything you say, so you have to talk up so he can hear you.

Q Now, this map shows a road running southeasterly and northwesterly along the Sleepy Lagoon. Where is it that your uncle lives with reference to that Sleepy Lagoon?

A Towards the north.

Q Towards the north. How far from the Sleepy Lagoon?

A Not so far from the Sleepy Lagoon.

Q How far?

A It isn't far from the Sleepy Lagoon; it is close


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to it.

Q Close to it?

A Yes.

Q Would you say a quarter of a mile, half mile or what?

A It ain't a mile from there.

Q It is a mile?

A No, it isn't.

Q Not a mile?

A No.

Q Pretty close to a mile?

A Yes.

Q And does he work on the farm there some place?

A No.

Q What does your uncle do?

A He works but I don't know where.

Q He doesn't work on the Williams ranch?

A No.

Q All right. Now, how many times up to August 1, 1942, had you been to the Sleepy Lagoon?

MR. VAN TRESS: I object to that as incompetent, irrelevant and immaterial.

MR. SHOEMAKER: Just preliminary generally.

THE COURT: Overruled.

A How many times have I been there?

Q BY MR. SHOEMAKER: How many times, yes.


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A I don't remember.

Q Well, many times?

A Not a lot of times.

Q A dozen times?

A No.

Q Then or twelve times?

A Around there.

Q Is that about right?

A Yes.

Q When you nod your head the reporter does not get it.

A I say yes.

Q That is right. Now, did you go out to the Sleepy Lagoon on the evening of August 1, 1942?

MISS ZACSEK: That is objected to, may it please the court, as it seeks to ask the very question the court ruled upon yesterday.

MR. SHOEMAKER: If the court please, I doubt if it lies in the mouth of the defense counsel to object to that question.

THE COURT: It is really a question of personal privilege for the witness, and it does not relate to the competency. I think you should allow counsel to finish his question, however. I don't know whether Mr. Shoemaker had finished his question.

MR. SHOEMAKER: Will you read it as far as I went, Mr. Kennelly?


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MISS ZACSEK: Well, I object because I was certain that counsel had completed his question.

THE COURT: The question is one of personal privilege of the witness, and does not relate to the competency of the testimony in any way.

MR. SHOEMAKER: And it does not lie in the mouth of defense counsel to make the objection. Will you read the question, Mr. Kennelly, as far as I had gone?

(Question read.)

MR. SHOEMAKER: You may answer that.

MR. BIRD: If the court please, I will ask, the witness having previously been instructed to answer the question, that she be instructed now she is not required by the court to answer this one.

THE COURT: If there is any question asked you, Miss Gonzales, which you think may tend to convict you of any crime, you may refuse to answer that question. If there are any questions that I think do not come within that rule and you should object to answering them, I will tell you.

MR. SHOEMAKER: Do you understand the question, Juanita?

A No.

MR. SHOEMAKER: You don't understand it?

A No.

MR. SHOEMAKER: You shake your head.

A No.

MR. SHOEMAKER: May I repeat the question, your Honor?

THE COURT: Yes.


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Q On the night of Saturday, August 1, 1942, did you go to the Sleepy Lagoon?

A Yes.

Q Who did you go with?

A Jack Melendez and John Matuz.

Q Jack Melendez and who else?

A John Matuz.

Q John Matuz?

A Yes.

Q Who else?

A And a boy named Manuel.

Q A boy named Manuel?

A Yes. I don't know his last name.

Q Would you know him if you saw him?

A Yes.

Q Now, do you see Jack Melendez among the defendants in the courtroom?

A Yes.

Q Where is he sitting?

A In the second row.

Q In the second row. How far from the west side?

A He is sitting in back of Manuel.

Q He is sitting back of whom?

A Back of Manuel.

Q Back of Manuel?

A Yes.


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Q Do you see a boy named Manuel in the front row?

A I do. He is not the one that was there.

Q He is not the one?

A No.

Q Was it another Manuel that you were talking about that was there that night?

A Yes.

Q Are you sure of that?

A Yes.

Q All right. You say that Jack Melendez is sitting back of a boy called Manuel?

A Yes.

Q What number is he in the row counting from the west side, now in the second row?

A Number 4.

Q He is number 4?

A Yes.

Q Do you know who is sitting on Jack Melendez's left-hand side now?

A Johnny.

Q Johnny Matuz?

A Yes.

Q Very well. Do you see him there?

A Yes.

MR. SHOEMAKER: Will Jack Melendez raise his hand, please?


223

(Defendant Melendez does as requested.)

Q Is that Jack Melendez?

A Yes.

Q Is that the boy you were with that night?

A Yes.

Q When you nod your head the reporter does not get it.

A Yes.

MR. SHOEMAKER: Will John Matuz raise his hand, please?

(Defendant Matuz does as requested.)

Q Is that the boy you refer to as John Matuz?

A Yes.

Q I beg your pardon?

A He was the one that was with me that night.

Q He was with you that night?

A Yes.

MR. SCHUTZ: We would like to hear over here. I cannot.

THE COURT: Just talk into the microphone, Juanita, so you can be heard over there.

Q BY MR. SHOEMAKER: Then, when you went out to the Sleepy Lagoon on Saturday night, August 1, 1942, there were three boys with you in the car?

A Yes.

Q Were there any girls besides yourself?

A Josephine, my sister.

Q Josephine, your sister?

A Yes.


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Q Any other girl?

A No.

Q What time did you go to the Sleepy Lagoon that evening?

A I don't remember.

Q What is that?

A I don't remember what time.

Q Was it about 11:00 o'clock at night?

A No.

Q What time was it?

THE COURT: More or less, what time was it?

A I don't remember.

THE COURT: Well, you remember whether it was 6:00 o'clock or 12:00 o'clock, don't you?

A It was around 8:00 o'clock, I think.

Q BY MR. SHOEMAKER: Around 8:00 o'clock?

A Yes.

Q How late was it when you left the Sleepy Lagoon that evening?

A I think it was 10:00.

Q What is that?

A I think it was 10:00 o'clock.

Q You think it was 10:00?

A Yes.

Q Was it not nearer 11:00 than it was 10:00?

MR. VAN TRESS: We object to counsel leading the witness.

THE COURT: Overruled.


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Q BY MR. SHOEMAKER: You may answer.

A I don't know.

MR. SHOEMAKER: What was the answer, Mr. Perry?

(Answer read.)

Q Were you then at the Sleepy Lagoon from about 8:00 o'clock in the evening until sometime around 10:00 o'clock that night?

A Yes.

Q While you were there where was your car parked with reference to the Sleepy Lagoon?

A Towards the north.

Q Towards the north?

A Yes.

Q Was it between the road and the reservoir or the Sleepy Lagoon, or was it around to the north side?

A There was a road that goes toward the side there.

Q Will you take the point, Juanita,—

A I don't want to take it.

Q Don't you want to point out where it was? Well, I will ask you to tell me when I have the right place. Was the car parked north of the lagoon where I now point?

A No.

Q Was it parked on the east side where I point?

A Yes, sir.

Q It was?

A Yes, sir.


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Q Is that correct?

A Yes.

Q About where was your car parked with reference to the Sleepy Lagoon, about the middle or toward one of the ends?

A Toward the end.

Q Which end, the north side?

A Toward the south.

Q Toward the south end?

A Yes.

Q About there?

A Yes.

Q How close was the car parked to the reservoir?

A It wasn't so close.

Q As close as from me to you?

A Yes.

Q That would be about 8 or 10 feet; is that right.

A (Witness nods head in the affirmative.)

Q You nod your head.

A Yes.

MR. BARNES: Will you put a mark on the diagram? It is not in the record.

THE COURT: The record will show at the time of questioning the witness the witness indicated the point where Mr. Shoemaker had stopped at that time and Mr. Shoemaker made a mark which is now on the diagram. I cannot state what the mark is.


227

MR. SHOEMAKER: I know. I am going to make it for the record, your Honor.

THE COURT: Yes.

MR. SHOEMAKER: This point that the witness has indicated as showing the location of the parked automobile has been marked with a small blue rectangle which I will now designate with "G," in view of the name of the witness being Gonzales.

MR. BIRD: The mark is east —


228

MR. SHOEMAKER: I beg your pardon?

MR. BIRD: I say, the mark is almost east of the southeast corner of the Sleepy Lagoon.

MR. SHOEMAKER: Yes.

MR. BIRD: A little bit northeast of the southeast corner of the Sleepy Lagoon.

Q BY MR. SHOEMAKER: Now, when you were there at the reservoir that evening, known as the Sleepy Lagoon, were there some other cars there, Juanita?

A Yes.

Q How many other cars?

A Two.

Q Were they there when you got there?

A Yes.

Q Who were in those cars?

A I don't know.

Q Did you know any of them?

A I didn't get to see them.

Q You didn't see them?

A No.

Q Did you see Manuel Delgado in another car at the reservoir?

A No.

Q At any time?

A No.

Q Did you see Henry Ynostroza in another car at the


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reservoir?

A I didn't see him there.

Q At any time?

A No.

Q Did you see a greenish colored V-8 automobile come there to the reservoir or the lagoon about 11 o'clock that night —

A No.

Q (Continuing) — before you went away?

A No.

Q You did not?

A No.

Q Now, during the evening while you were there at the reservoir and before you left, how many cars did you see there altogether?

A The same two cars.

Q Besides your car, the one you were in?

A Yes.

Q Is that right?

A Yes.

Q Did you not see another car come a little bit later on, toward 11 o'clock?

A No.

Q Juanita, you testified before the Grand Jury in this case, didn't you?

A Yes.


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Q On the 4th of August, 1942, you appeared before the Grand Jury of Los Angeles County and testified?

A Yes.

MR. COVIELLO: What was that page?

MR. BARNES: No page yet.

MR. SHOEMAKER: I haven't given it yet.

Q I call your attention to the official transcript of the testimony taken before the Grand Jury in the matter of this case on the 4th day of August, 1942, at which time you appeared as a witness, and direct your attention, Juanita, to the 15th page in the record —

MISS ZACSEK: Just a moment. If the court please, this is objected to on the ground it seeks to impeach the witness — counsel seeks to impeach his own witness without a proper foundation having been laid in this: that there is no attempt made by counsel to say he is surprised in any way —

THE COURT: Objection overruled, Miss Zacsek. There is not anything to indicate impeachment at the present time. On the contrary, it is clearly indicated by the manner of procedure that counsel is proceeding under the rule originally laid down in People v. Durrant, 116 Cal., page 213, and followed in People v. Selby, 198 Cal., at page 426, and the entire matter is reviewed — I am giving this authority for counsel because we are going to run into it again — People v. Allen, 47 Cal. App., 2nd, page 834.


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Thus far Mr. Shoemaker is following the procedure outlined in those decisions.

MISS ZACSEK: On the other hand, —

THE COURT: Proceed.

MISS ZACSEK: May I have just one word? I am not attempting to argue with the court's ruling. I just want to be straightened out on this one point. According to the case of People v. Flores, the Appellate Courts have said that there is — as the court well knows — that one of the requisites in seeking to impeach one's own witness —

THE COURT: Yes, but, Miss Zacsek, I think you are over-looking the fact the rule I have referred to is not the rule of impeachment. It is stated very definitely in the Durrant case, which is the granddaddy case on this proposition — you will find language appearing on page 214 that when a witness is called, who gives testimony at variance with testimony previously given, the party who calls the witness may call the witness' attention to the prior contradictory statement so that a correction can be made. Now, the rule basically, and I have always felt would be better for the jury if you merely show the transcript to the witness instead of reading it out loud to the witness and bringing the matter to the attention of the jury before the witness has a chance to straighten himself out. That precise point was raised in the Selby case, — also the Kid McCoy case, — and Judge Crail ruled


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very definitely the proper way was to read the question from the transcript, propound the question from the former question that was specifically covered by the Supreme Court's decision.

MISS ZACSEK: Yes, your Honor. The only point I make and, of course, my objection is premature, and I am well aware of that, but the only objection I make is the danger of going beyond what briefly may be termed refreshing the witness' recollection, thus giving them an opportunity to correct their testimony and flat impeachment.

THE COURT: I will take care of that. I will see that they do not go beyony any limitations. Nobody is going beyond any limitations here, if I can stop it.

MISS ZACSEK: Thank you.

MR. SHOEMAKER: Now, Juanita, I will change my last question and, referring to page 4 of the official transcript of the Grand Jury testimony filed with the County Clerk of this County on August 13, 1942, which I show you, I will call your attention to your testimony given before that Grand Jury on that date, you being the first witness, at page 4, commencing at line 6, and I will read it, so that you can watch me read it. Juanita, can you see the writing?

A Yes.

Q As I show it to you I will read, line 6: "Q—" —

THE COURT: Mr. Shoemaker, we are going to run into a


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little difficulty. If you put the question in the form in which you are putting it, we come mighty close within the rule of impeachment found in the rule in the Durrant case. The procedure in the Durrant case was directly asking the witness the question as to whether on the former occasion he had not state thus and so. You recall the question was where Durrant was when the man came back from the drug store with the Bromo Selzer as one version, and in the trial he was asked at the Grand Jury didn't you state so and so. You may proceed. We are using the transcript to refresh the witness' recollection.

MR. SHOEMAKER: Take this transcript and commence reading on line 6, page 4.

A No.

MR. SHOEMAKER: Will you take the transcript in your hand, please, Juanita?

The witness refuses to cooperate, your Honor.

MR. BARNES: May we have the record show, your Honor, the witness declines to take the transcript in her hand or look at it.

THE COURT: The record will so show. I think you might proceed in the other manner, asking directly the question as to whether such testimony was given on the former occasion.

MR. SHOEMAKER: All right. I will hold the record in front of you so that you can see it. Do you see it now?


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A Yes.

MR. SHOEMAKER: Did you get the answer, Mr. Kennelly?

THE REPORTER: She said, "Yes."

MR. SHOEMAKER: She barely whispered, it.

THE REPORTER: I heard it.

Q BY MR. SHOEMAKER: Let me read you some names and see if you recognize any of these names, as names of boys there that night: "Henry Leyvas?

"A—No, sir.

"Q—Manuel Delgago?

"A—No.

"Q—Jack Melendez?

"A—Yes, he was with us.

"Q—John Matuz?

"A—Yes, he was with us too.

"Q—You are sure that Manuel Delgado was not there?

"A—Yes, he was in another car."

Do you recall giving that testimony?

A I heard them call for him.

Q You heard them call for him?

A Yes.

Q He was in another car?

A Yes, he was in another car, because he was not in our car.

Q But he was in another car?

A Yes.


235

Q Then the question: "Q—Was he at the reservoir while you were there?

"A—Yes.

"Q—Was Henry Leyvas also there?

"A—I am not sure.

"Q—You are not sure whether Henry Leyvas was there or not?

"A—I am not sure.

"Q—Your sister Josephine was there?

"A—Yes.

"Q—Were there any other boys or girls there?"

MR. SCHUTZ: If the court please, from this previous portion of the transcript from which counsel is reading he is seeking to refresh the witness' recollection with the record, which will show the witness has testified that she was down there in the car at the reservoir with the witness Josie and the other ones in the following questions which counsel is about to read, and therefore I would say that this portion of the transcript does not come within the rule as laid down in the case —

THE COURT: So far as the testimony is basically the same, of course, but where it is not it will —

MR. VAN TRESS: I have an objection, if the court please. Counsel is attempting to refresh the memory of this witness because she has purportedly stated at the Grand Jury that Manuel Delgade was there, and she has stated here today


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that he was not there, as I understand it.

MISS ZACSEK: She said she did not see him.

MR. VAN TRESS: Or she did not see him. Now, he is refreshing her memory as far as Manuel Delgado is concerned, and, of course, he is not attempting to —

MR. SHOEMAKER: About other people I asked her about.

THE COURT: Pardon me. Mr. Shoemaker. Previously she was asked who was there and she named certain persons and gave the persons who were present.

MR. VAN TRESS: Now, counsel is asking about Henry Leyvas, and she says I am not sure. He is asking her whether there were any other boys or girls there. He is now going further than the original intent.


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MR. SHOEMAKER: I am going into the question of whether Henry Ynostroza was there. She has already testified from the stand he was not there.

MR. SCHUTZ: In that connection I submit, may it please the court, the district attorney may read that portion of the transcript only which relates to the matter on which he wishes to refresh the memory.

MISS ZACSEK: May it please the court, —

MR. SCHUTZ: Just a moment. I am trying to complete my objection. Anything which would tend to substantiate the testimony of the witness this morning would amount, if the court please, to prejudicial misconduct, as counsel well knows. The rule laid down in the case which the court has cited only applies to that portion of the testimony to which the witness' attention is directed for the purpose of refreshing her or his recollection, and therefore it would be incumbent upon counsel, under that ruling to read the question with reference to Henry Ynostroza only, the question and answer relating to Henry Ynostroza, if she has heretofore testified in a manner differently than she testified before the Grand Jury as to the individual, Henry Ynostroza.

THE COURT: Either differently or testifies where the record now is silent as to testimony.

MR. SCHUTZ: Yes, your Honor.

THE COURT: Where the testimony is the same I agree with counsel, that there is no occasion for reading the Grand


238
Jury transcript to answer any questions. However, I want to mention another thing, and that is the witness' testimony here, in which she was asked not as to whether Manuel Delgado or Henry Ynostroza was there, but as to whether she saw them there. If there is any conflict it will have to be with reference to questions of whether or not she saw either one of those present.

MISS ZACSEK: May it please the court, a further objection I would like to interpose regarding my client Henry Leyvas is the question that was asked of this witness in substance was whether or not she had seen Manuel Delgado and Henry Ynostroza at the Sleepy Lagoon at the time she was there, to which the witness, in substance, replied she had not seen either of these individuals, now whereupon counsel seeks to refresh her memory by asking or reading from the transcript, that it throws no illumination upon the question either for the benefit of the jury or for defense counsel,- certainly not for me,- and I think it could have been approached in another manner, because the question was put to refresh her memory, when she said she did not see him merely, as far as that is concerned, Delgado was not there— yes, he was in another car, but that does not help us, at least it does not help me to clear up the situation as to what she did or did not see, and I think —

MR. SHOEMAKER: If we have an opportunity to proceed we can clear it up, your Honor.


239

MR. VAN TRESS: I have another objection to enter, in reply to what counsel said, I again renew my objection it is coming dangerously close to what appears to me to be impeachment when there seems to be no variance in the record, nothing to show that the witness' memory needs refreshing, and a question could be asked that would clear that up, whether or not — why she could not see him.

THE COURT: I think the difficulty we are struggling with is the language of the Durant case which refers to apparent inconsistencies. I think there is an apparent inconsistency between the statement I did not see him there and the statement he was there. Now, that is subject to explanation, and I think counsel may,- and I am referring to Mr. Shoemaker now,- can ask the witness here at this time to explain the apparent inconsistency.

Q BY MR. SHOEMAKER: Now, Juanita, —

MR. VAN TRESS: If the court please, I have not finished my objection. Counsel has laid no foundation — I am going to object to counsel smiling at the jury also as if to creat the impression —

MR. SHOEMAKER: If the court please, that is an impudent remark. There was no such thing going on.

THE COURT: Let's proceed.

MR. VAN TRESS: As if I am taking the time of the court by interposing a frivolous objection.

THE COURT: All right, go ahead.


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MR. VAN TRESS: There has been no proper foundation laid to show the time element as to whether or not this witness is discussing as to whether she did or did not see certain persons there at 10:00 or 11:00, or whether she went back later at 1:00 or 2:00. There is no foundation laid to show the exact time to which this witness is referring, as to when she said she did or did not see certain people there.

THE COURT: I don't know whether that would be the basis of an objection, but I suggest that Mr. Shoemaker can clear that up to ascertain from the witness whether the witness was there on any occasion other than this one single occasion.

MR. SHOEMAKER: Your Honor, I think the record already shows she went there around 8:00 o'clock and was continuously there until sometime around 10:00 or 11:00.

THE COURT: Well, Mr. Van Tress has indicated it might be possible that she then left and that these questions relate to the first visit and that there may have been a second visit.

MR. SHOEMAKER: No. The questions relate to the first visit, your Honor.

THE COURT: I see.


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MR. SHOEMAKER: I was particularly careful about that and the record of the Grand Jury transcript relates to it.

THE COURT: I think if you make the questions come within the rule it will meet Mr. Van Tress' objection.

Q BY MR. SHOEMAKER: Now, Juanita, during the time that you were there on the evening of Saturday, August 1st, from around 8 o'clock until around 10 o'clock, as you testified, I have asked you before, and I will ask you again, while you were there during that period and before you left, did you see anyone else there at the Sleepy Lagoon except as you have stated, and you have named John Matuz, Jack Meldnez, your sister Josephine, and now I ask you, did you see any other person there during that period that you knew?

A No.

Q I will ask you again, did you not see Henry Ynostroza there?

MR. SCHUTZ: If the court please, that has been asked and answered.

THE COURT: The objection is overruled. I think you did not hear what was said a moment ago. The question is being asked specifically to meet Mr. Van Tress' objection.

MR. SCHUTZ: Oh, I see. I beg your pardon.

MISS ZACSEK: I interpose this objection, may it please the court, if counsel purposes to refresh the witness' recollection from the transcript, where it has reference to Henry Ynostroza, I at this time submit it would not tend to refresh the memory of the witness on any question.

THE COURT: I don't know how you can possibly raise that point. Nobody can know except the witnesses themselves, as to what will refresh the recollection of an individual. Things which may have no apparent connection at all with the subject matter will still refresh the memory. I recall the old habit of tying a string around a finger in order to be sure to bring the bacon hom in the evening. Now, there is no connection between a string and bacon, but sometimes it refreshes the memory. I may say I have seen a witness' memory refreshed by merely showing them the outside of the transcript.

MISS ZACSEK: Yes, your Honor. I too have shared that experience.

THE COURT: You may proceed.

Q BY MR. SHOEMAKER: I will ask you, did you see Manuel Delgado there?

A No.

Q Did you hear the voice — strike that. Do you know Manuel Delgado's voice when you hear it?

A No.

Q Are you acquainted with him?

A No.

Q Do you see him in the courtroom?

A I do.


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Q Do you know him in the courtroom?

A Yes.

Q You do know him, don't you?

A I don't know him, but I have seen him.

Q Where is he seated in the courtroom?

A In the front row.

Q In the front row. Which number from the west, will you look, please?

MR. COVIELLO: Are you asking about Manuel Delgado?

MR. BARNES: Yes, sir.

A No. 4.

Q BY MR. SHOEMAKER: No. 4. Will you count again, please? Will you look over there and be sure that you are right?

MR. SCHUTS: I submit the witness —

A No. 5.

Q BY MR. SHOEMAKER: It is No. 5, isn't it?

A Yes.

Q Is that right?

A Yes.

Q Do you know who No. 4 was?

A Joe Carpio.

Q Jose Carpio. No. 5 is who?

A Manuel Delgado.

MR. SHOEMAKER: Will you raise your hand, please, Manuel —


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MR. COVIELLO: Will you stand up, Manuel, please?

(Manuel Delgado standing.)

Q BY MR. SHOEMAKER: Is that Manuel Delgado?

A Yes.

Q Now, was he at the Sleepy Lagoon that night when you were there?

A I did not see him there.

Q Do you know Henry Ynoztroza?

A No.

Q You don't know him?

A No.

Q Do you know him when you see him? What is the answer?

THE COURT: Talk up, Juanita.

MR. SHOEMAKER: What is your answer, Juanita?

A Yes.

Q Where is he sitting in the courtroom? You can stand up, if you care to.

A I don't want to stand.

MR. BARNES: May we have the witness stand up and Mr. Bird sit down, your Honor, because he blocks somewhat her vision.

A There he is.

Q BY MR. SHOEMAKER: Do you see him over there?

A Yes.

THE COURT: The record will show the defendant Ynoztroza arose, and that preceded the answer of the witness.


245

MR. SHOEMAKER: Is he in the back row?

MR. VAN TRESS: The defendant thought Mr. Barnes meant him.

MR. SCHUTZ: That was my impression, I thought so too.

MR. BARNES: I am sorry if he did. I did not mean it that way.

MR. VAN TRESS: We will concede —

Q BY MR. SHOEMAKER: On the night when you were at the Sleepy Lagoon I will ask you now if you saw the last man that stood up, Henry Ynostroza, there? What is your answer?

A I didn't see him there.


246

Q Was he there, so far as you know?

MISS SACSEK: That is objected to as calling for an opinion and conclusion, your Honor.

THE COURT: Overruled. It calls for knowledge.

MR. BIRD: I think the basis of the objection was that her knowledge might possibly be based upon hearsay, your Honor, the way the question is put. I would like to have the question reframed to eliminate a possible answer based upon hearsay.

THE COURT: Well, he might do that.

Q BY MR. SHOEMAKER: How many times had you seen Henry Ynostroza prior to August 1, 1942?

A That was the first time.

THE COURT: I did not catch the last part of the answer.

(Answer read.)

THE COURT: That leaves it rather ambiguous as to what "that" meant, Mr. Shoemaker.

Q BY MR. SHOEMAKER: How many times had you seen Manuel Delgado prior to August 1, 1942?

A That day.

Q That day?

A Yes.

Q Who was with him that night, if you know?

A I didn't see him that day. I used to see him walking down the street, but I didn't know him.

MR. VAN TRESS: Will you keep your voice up so we can


247
hear you?

MR. SHOEMAKER: She used to see him walking down the street, but she didn't know him.

Q Now, Juanita, to refresh your memory, let me show tou the transcript again — when I refer to the transcript I refer to the official transcript of the Grand Jury investigation — again I call your attention to page 4, the question at line 16: "You are sure Manuel Delgado was not there?

"A—Yes, he was in another car.

"Q—Was he at the reservoir while you were there?

"A—Yes." You so testified, did you not?

A Yes.

MR. SCHUTZ: I think that is not the proper way to approach refreshing the memory of the witness.

THE COURT: I might suggest you get that case of People v. Durant and take a look at it before you make that objection. That is precisely the procedure followed in the Durant case, as I have already indicated.

MR. SCHUTZ: I understood, your Honor, the situation or the rule, that I was under the impression — I was under the impression, based upon the court's observation, that counsel was under the duty to ask whether or not that testimony refresued the recollection of the witness.

THE COURT: No. In the Durant case the question arose as to where Durant was at the time the witness returned from the drug store with some Bromo Seltzer. At the trial


248
he placed Durant as in a particular place, inside the building. He was then asked whether he had not before the Grand Jury testified that when he returned with the Bromo Seltzer Durant was in such and such a place, indicating another place. The witness then answered that he had, and then he was asked to explain the apparent conflict.

MR. SCHUTZ: I do not want the court, even in deference to the fact I have not, to my recollection, read the Durant case — I am probably more concerned with the practical way to ask the question than with the rule in the case. If counsel's question falls within the rule I asked indulgence to withdraw the objection and retire gracefully.

THE COURT: Just to refresh your recollection as to the Selby case, in the Selby case the question arose as to what the defendant had stated shortly after the homicide when in the sister's house. There we had a rather unusual situation. The languaged used by the defendant, according to the testimony of the sister, before the Grand Jury, was given differently on two occasions. On one occasion the defendant stated, "Teresa is dead." Another quetation given by the same witness before the Grand Jury was, "I killed Teresa." When called to the witness-stand she gave the first version, "Teresa is dead." She was then asked, after being shown the transcript, whether it refreshed her recollection, and the court insisted the district attorney proceed to follow the precise method in the Durant case. Then the district


249
attorney asked the witness, "Did you testify before the Grand Jury that the statement your brother made was, 'I killed Teresa?' " That was the particular point covered by the appeal. I happen to recall the incident very well, because I was in the courtroom at the time.

Q BY MR. SHOEMAKER: I call your attention, Juanita, to page 5 of the transcript —


250

MR. BIRD: If your Honor please, I am going to interpose an objection here. The district attorney has asked the witness if she testified a certain way before the Grand Jury and she said she did not. He has not followed it up by asking her if that now refreshes her memory as to what actually did occur. I think he has left himself in that position where he is merely impeaching the witness. If he stops there and does not follow it up by two additional questions, which brings it within the rule of refreshing the witness' recollection, —

THE COURT: He has not turned the witness over for cross-examination. I do not know what matter he is going into.

MR. BIRD: He is going into another matter, if the court please. He has called the witness' attention to page 4, line 16 to line 19, and has elicited from the witness the answer that she did so testify as shown on those four lines.

THE COURT: If I might offer a suggestion, there are two alternative procedures, evidently, one being with reference to the direct refreshing of the witness' memory in which matter being called to the witness' attention, the witness's memory is then refreshed, and the present recollection of the witness is then given. I do not think that quite fits the situation here, as well as the situation which arose in the Durant case where there were two different apparent recollections, having brought out the fact of two apparently different versions. I think the


251
better practice, as indicated by the decision, is to just ask the witness to explain the apparent inconsistency or the apparent conflict.

MR. BIRD: I think the witness should be asked if —

MR. SHOEMAKER: May we have —

MR. BIRD: May I finish? — by reading the testimony given by her before the Grand Jury, if that refreshes her recollection, and if she says that it does refresh her recollection, she should be asked now what her present recollection is.

THE COURT: The only difficulty is, I think, Mr. Bird, the witness refused to read the transcript, refused to look at it.

MR. BIRD: She has heard Mr. Shoemaker read it, and she has admitted she so testified before the Grand Jury.

THE COURT: I understand the rule is to show the transcript and allow the witness to state whether that refreshes her memory. If the witness states that it does not, then that apparently ends that method of procedure. If the witness says that it does, then the witness is asked what is the answer.

MR. BIRD: I think the witness having heard her testimony, even thought she did not look at it in writing, admitted she gave it, and I think she should be asked whether that refreshes her memory.

THE COURT: I do not know of any authority for that.


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MR. BIRD: The district attorney is merely impeaching the witness rather than refreshing her memory.

THE COURT: I think the question can be asked in the regular form, Mr. Shoemaker, as to the apparent conflict in the two versions. If not, it can be asked on cross-examination.

Q BY MR. SHOEMAKER: Juanita, having heard what the court just said, —

THE COURT: I do not know whether the witness got what I said.

Q BY MR. SHOEMAKER: (Continuing) — will you please explain what you meant by having testified here today that Manuel Delgado was not there and by your testimony before the Grand Jury where you said that he was at the reservoir while you were there?

MISS SACSEK: That is objected to as assuming a fact not in evidence. It twists the language of the witness, who said she did not see Manuel Delgado.

THE COURT: Objection sustained.

Q BY MR. SHOEMAKER: Will you explain your testimony, Juanita, as given here today, that Manuel Delgado was not there or was not seen there?

MISS ZACSEK: Just a moment.

THE COURT: Let us get it right, Mr. Shoemaker. Her testimony was that she did not see him there.

MR. SHOEMAKER: Very well.


253

Q Will you explain your testimony given here that you did not see Manuel Delgado at the Sleepy Lagoon on the night of August 1, 1942, and your testimony given before the Grand Jury that he was at the reservoir while you were there?

(Witness hesitates.)

Q What is your answer? We are waiting, Juanita. What is your answer?

A I don't know.

THE COURT: Well, do you remember seeing Manuel Delgado there?

A I didn't see him there.

THE COURT: Well, was he there?

A I guess he was.

MR. SCHUTZ: What was her last answer?

THE COURT: What do you mean by that?

MISS ZACSEK: "I guess he was."

THE COURT: Did you hear his voice? What was there that makes you think he was there?

MR. VAN TRESS: There is no proper foundation laid that the witness was familiar with his voice. I object to the question.

THE COURT: Objection sustained.

Q BY MR. SHOEMAKER: What did you mean by your statement before the Grand Jury that he was there?

A Because they called him.

Q Who called him?

A I don't know who called him. They were calling him.


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Q Did you see him on the way back from the Sleepy Lagoon that night?

A No.

Q What is that? What is your answer?

A I don't remember if I did or I did not.

Q Calling your attention to page 5 of the same transcript, at line 5 — I will hold it so you can see it. Will you take the transcript in your hands? You may take it in both of your hands, if you will, and read it. Will you do that?

A I don't want to read it.

Q All right. You help me hold it, then. Reading at line 5: "Q—Do you know the names of any of those boys?

"A—Henry Ynostroza.

"Q—Henry Ynostroza?

"A—Yes." Did you so testify?

MR. VAN TRESS: We object to that on the ground, if the court please, she has not been asked here today whether she knew the names of any of the other boys, nor has she said that she did or did not know them.

THE COURT: Overruled. The record shows she knows who Henry Ynostroza is, because she pointed him out in the courtroom.

MR. BIRD: I think, in order to make the questions read into the record fully intelligible, I think the questions and answers appearing on page 4, line 26, and page 5, lines 1 to 4, should also be read.


255

MR. SHOEMAKER: If the court please, that is exactly what I proceeded to do a while ago, and Mr. Schuts interrupted and made a long objection because of the fact he asked portions of the transcript be read, just the intermediate parts. I am perfectly willing to do it. One objection is made to stop it, and now the objection is made that it be done. I have no objection to read those preceding questions and answers.

MR. BIRD: Mr. Shoemaker read into the record this question and answer: "Q—Do you know the names of any of those boys? A—Henry Ynostroza."

In order to make "those" intelligible, I think the preceding questions and answers should be read.

MR. SHOEMAKER: I am perfectly willing to do that. I agree with you, Mr. Bird. The other objection was we were reading something other than the preceding question.

MR. SCHUTZ: In order to make the record clear as to my quarrel with counsel, if any, I objected to him reading portions of the transcript that could not possibly refresh the memory of the witness.

THE COURT: I understand Mr. Schutz's objection was there was no occasion to read those portions of the Grand Jury transcript which coincided with the present testimony of the witness.

MR. SCHUTZ: Yes, that is right.


256

MR. VAN TRESS: This witness has stated that she recognized Henry Ynostroza that night. The question asked her at the Grand Jury was if she knows the names of any of those boys, and her answer is, "Henry Ynostroza." There is no need to refresh her memory. She has already stated —

THE COURT: I think that is only a part of a series of questions counsel wants to ask, as indicated by his suggestion. I cannot take one isolated question and rule upon it. Objection overruled.

MR. SHOEMAKER: May I have the privilege of commencing at the bottom of page 4 and reading from there, to satisfy counsel?

THE COURT: I understand you are designating the page merely for the convenience of counsel?

MR. SHOEMAKER: Yes, certainly.

Q Reading from page 4, line 26, now, and the record is being held in front of the witness so she can see it:

"Q—Were there any other boys or girls there?

"A—A girl was in the car, but I don't know who she was; I did not get to see her.

"Q—Any other boys?

"A—There was another car full of boys.

"Q—Do you know the names of any of those boys?

"A—Henry Ynostroza.

"Q—Henry Ynostroza?

"A—Yes." Did you so testify?


257

A Yes.

Q Do you remember, from having had that testimony read to you, that Henry Ynostroza was there that night?

A Yes.

MR. VAN TRESS: Just a minute, if the court please. The memory refreshing part of that is, "Do you know the names of any of those boys?" And her answer is "Henry Ynostroza." She did not state that he was there.

MR. SHOEMAKER: She has answered the question, your Honor.

THE COURT: I think the question has already been answered. I think that answers the objection. She was asked if she knew the names of any of the boys in the car, and she said, "Henry Ynostroza."

MR. VAN TRESS: She so testified at the Grand Jury.

THE COURT: I think that tends to establish Ynostroza was there.

MR. SHOEMAKER: Will you read the last question and answer, Mr. Perry?

(Record read.)

Q Now, Juanita, for the purpose of refreshing your memory let me ask you if you remember that you arrived at the Sleepy Lagoon that night on that trip there, when you went out with Josephine, John Matuz, and Jack Melendez, that you arrived there around 11:00 o'clock instead of 8:00 o'clock? What is your answer?

A I don't remember what time it was.


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Q You remember what?

A I said I didn't remember.

Q You don't remember?

A No.

MR. COVIELLO: May I interrupt and ask that the witness use that microphone there? The witness is away from it.

MR. SHOEMAKER: Mr. Coviello, I have tried to have her do so a half a dozen times, and she does not cooperate, as far as I can see.

Q Now, calling your attention again to the transcript, on page 5, at line 11, where I will read — you watch —

"Q—What time did the car you were in arrive at the reservoir?

"A—What time?

"Q—Yes.

"A—Around 11:00 o'clock." Did you so testify?

A Yes.

Q Now, does that refresh your memory, Juanita?

A Yes.

Q What time was it, then, that your car arrived at the reservoir?

A 11:00.

THE COURT: I think we have gotten about to our recess period. I think we will take our morning recess. The jury will keep in mind you are not to talk about the case or form or express any opinion. Take our usual morning recess.


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(Recess.)

THE COURT: The record will show all parties present. You may proceed, Mr. Shoemaker.

Q BY MR. SHOEMAKER: Juanita, you said that you saw two other cars there that evening while you were out to the reservoir known as the Sleepy Lagoon. Will you tell us where they were parked? You have already indicated by the point marked "G" near the Sleepy Lagoon where your car was parked. Where were the other two cars parked?

A They were in back of our car, on this side.

Q Back of your car?

A Just on this side.

Q Will you take the pointer and show us?

A Right there (indicating).

Q They were nearer the road than your car?

A Yes.

Q You tell me where they were and I will draw a rectangle.

A There (indicating on diagram).

Q How close wasone of those cars to your car?

A It was close to our car.

Q What?

A It was close to our car.

Q How far away? I will walk and you tell me when to stop.

A About right there.

Q That would be about 10 feet; is that right?


260

A I don't know.

THE COURT: That is approximately the distance.

MR. SHOEMAKER: I am not trying to put this on according to scale, your Honor.

THE COURT: I understand.

MISS ZACSEK: There is a ruler there, counsel, and I suggest that you use it, and then we will have something that approximates the scale.

THE COURT: The difficulty is the witness is unable to give us any scale.

MISS ZACSEK: She said 10 feet.

MR. SHOEMAKER: I will mark this "G-1." just south of the place marked "G."

THE COURT: The original mark, however, was not put on there according to any scale, so we will run into difficulty if we put one on by scale and one not by scale.

MR. SHOEMAKER: It is not put on according to scale. I have not attempted to.

Q Juanita, where was the other car, the third car?

A Close off that car.

Q Was it south of that car, toward the road, or was it east or west?

A Towards the road.

Q What is that?

A Towards the road.

Q Towards the road?


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A Yes.

Q How far away from this car that I have marked "G-1"?

A I don't know.

Q About the same distance?

A I guess so.

Q Well, you saw it. You tell me. I will walk away from the witness-stand and you tell me when to stop.

A Right there, I think.

Q About here?

A Yes.

Q That would be about 8 feet, wouldn't it? Is that right?

A I don't know.

Q 8 or 10 feet?

A I suppose.

THE COURT: Approximately 8 feet was the distance indicated.

Q BY MR. SHOEMAKER: That was nearer the road?

A Yes.

MR. SHOEMAKER: Very well. I will mark another rectangle here and mark it "G-2."

Q Now, just before recess, Juanita, you stated there was a car there full of boys. Now, was it one of these two cars marked "G-1" or "G-2", or was it still another car?

A It was one of those cars.

Q It was one of those cars?


262

A Yes.

Q Which was it, "G-1" or "G-2" that was full of boys?

A I guess it was "G-2." I am not so sure.

Q Is that your best recollection, that it was "G-2"?

A Yes, sir.

Q Very well. How many boys would you say were in that car?

A I don't know.

Q You said it was full of boys. Can you give us the number?

A Around ten, I guess.

Q Around ten?

A Yes.

Q Did you know any of them besides Henry Ynostroza?

A No.

Q Did you know any of the people in the car marked "G-1," which was immediately south of you?

A No.

Q Now, were those two cars, "G-1" and "G-2," parked there in that position all the time that your car was parked in the position of "G"?

A Yes.


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Q Now, Juanita, to refresh your recollection, let me ask you if you now remember that a V-8 greenish colored car drove in there near you about 11 o'clock that night or a little later?

A No, I don't remember; I don't remember.

Q Speak up so everybody can hear you.

A I don't remember.

Q You say you don't remember?

A Yes.

MR. BIRD: Lot at page 5, Mr. Shoermaker.

MR. COVIELLO: May I interrupt, Mr. Shoemaker, please? If the court please, may the record show that so far as the defendant Manuel Delgado is concerned, that the district attorney can read — may read any portion of the testimony of this witness given before the Grand Jury under oath, that he may wish to read, without the necessity of laying a foundation, to impeach the witness or refresh the recollection of the witness; in order to save time, that any portion of the testimony given by this witness under oath before the Grand Jury may be read to the jury, so far as we are concerned?

THE COURT: That is, Manuel Delgado.

MR. COVIELLOT: And myself are concerned.

MR. BIRD: I do not wish to join in that, because I do not recollect clearly enough all the matters that she testified to at the Grand Jury; it has been several weeks


264
since I read the testimony.

THE COURT: The offer is limited entirely to Mr. Coviello and his client.

MR. BIRD: I would like to ask Mr. Shoemaker if he is looking at page 5.

MR. SHOEMAKER: I realize that, but just before I take that up —

MR. BIRD: Look at line 20 before you proceed.

MR. SHOEMAKER: Yes.

Q Now, Juanita, what kind of a car were you in at position "G"; do you remember what kind it was?

A No.

Q Who was driving the car in which you were?

A Johnny Matuz.

Q Johnny Matuz?

A Yes.

Q What kind of a car was at the "G-1" location?

A It was a V-8.

Q You think it was a V-8?

A Yes.

Q Do you remember the color of it?

A No.

Q What kind of car was "G-2"?

A I don't know.

Q You don't remember?

A No.


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Q Now, did another car come there to that location that night along about 11 or a little after?

A I don't remember.

Q You don't remember?

A No.

Q Do you know the defendant Henry Leyvas?

A Do I know him?

Q Yes.

A No.

Q Do you know him when you see him?

A No.

Q What is that?

A I don't know — yes, I think I know him.

Q I cannot hear you.

A I think I know him when I see him.

Q Do you see him in the courtroom?

A Yes.

Q Where is he sitting?

A In the second row.


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Q Second row, how far from the west?

A One.

MISS ZACSEK: Stand up, Henry.

Q BY MR. SHOEMAKER: Is he No. 2 from the west?

A Yes.

MISS ZACSEK: Let the record show that Henry Leyvas just stood up.

THE COURT: It may so show.

Q BY MR. SHOEMAKER: Did you see him just stand up at that time?

A Yes.

Q Do you remember whether or not he was at the reservoir that night while you were parked there?

A I don't remember.

Q What is that?

A I don't remember.

Q You don't remember?

A No.

Q Now, I will call your attention to page 5 of the transcript, line 16, and ask you to watch as I read; you are watching, are you? Are you?

A Yes.

Q "Q—Was the other car there at that time or did the other car arrive about the same time?

"A—A V-8 was there, a kind of greenish V-8.

"Q—Did you get to the reservoir about the same time?


267

"A—No, it was there already."

Now, is that the green V-8 that you have referred to?

A Yes.

MR. SCHUTZ: If the court please, I object to the question as improper —

MR. SHOEMAKER: I will withdraw that last question.

THE COURT: All right, the question is withdrawn.

Q BY MR. SHOEMAKER: Does that refresh your memory, Juanita, as to the color of the V-8?

A Yes, it does.

Q Now, which one was that, G-1 or G-2, or was that some other car?

A G-1.

Q G-1. Did you see some girls in G-1?

A Yes.

Q How many did you see there?

A One.

Q What is that?

A One.

Q Do you know her name?

A No.

Q Have you seen her since?

A No.

Q Do you now know who she was?

A No, I don't know who she was.

Q How many boys were in the car G-1?


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A I don't know.

Q Did you see any boys in G-1?

A No.

Q Did you take a walk that evening, while you were there?

A Yes.

Q Who did you walk with?

A Jack Melendez.

Q Jack Melendez, the defendant Melendez, is that right?

A Yes.

Q How far away did you go?

A We went up in front by my uncle's house.

Q What is that?

A In front by my uncle's house.

Q How far would that be?

A I don't know.

Q In which direction from the Sleepy Lagoon?

MISS ZACSEK: That is objected to as having been already asked and answered.

THE COURT: Overruled.

Q BY MR. SHOEMAKER: Which direction did you walk from the Sleepy Lagoon?

A Towards the east around the Sleepy Lagoon.

Q West, to the west end toward the north?

A No, the other way.


269

Q Around to the east and to the north?

A Yes.

Q How far did you say that you walked?

A Up to my uncle's house.

Q About two miles?

A No, it wasn't two miles.

Q What did you say?

A It wasn't two miles.

Q Tell me how far you walked.

A I don't know.

MR. RAVIN: Did I understand the witness to say "my uncle's house"?

MR. BARNES: I thought that was what she said.

Q BY MR. SHOEMAKER: Did you walk to your uncle's house?

A Yes.

Q With Jack Melendez that evening?

A I said Johnny Matuz, didn't I?

Q Who did you walk with?

A Johnny.

Q Johnny Matuz?

A Yes.

Q Did you walk to your uncle's house with him that night?

A Yes.

Q How long were you gone from the Sleepy Lagoon?


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A I don't know.

Q Half an hour?

A I don't remember.

Q Do you have any idea?

A No.

Q When you came back was your sister Josephine in the car?

A Yes.

Q Who was she with?

A Manuel.

Q Manuel?

A I don't know his last name.

Q Was it Manuel Delgado?

A No.

Q Do you see the man that she was with, in the court-room?

A Yes.

Q Where is he seated?

A In the back row.

Q What number from the west?

A No. 2.

Q Would that be Manuel Reyes?

A I think that is the last name.

MR. SHOEMAKER: Will No. 2 in the back row please raise his hand or stand, please, will you?

(Defendant standing.)


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MR. SHOEMAKER: Do you know that man?

A I don't know him, but I seen him.

Q BY MR. SHOEMAKER: You have seen him before?

A Yes.

THE COURT: Was he the man with your sister?

A Yes.

MR. BARNES: May we have the record show the man who stood up was Manuel Reyes, if the court please?

THE COURT: The record will so show.

Q BY MR. SHOEMAKER: When you got back to your car after your walk, were there any other cars there?

A Only those two.

Q Just those two?

A That is all I saw.

Q Did you hear any noise when you got back?

A No.

Q Did you hear any noise when you gor back?

A No.

Q Did you hear any noise while you were gone?

A I don't remember.

Q Did you hear any yelling or hollering?

A I don't remember if I did or not.

MR. SHOEMAKER: Speak louder, so the jury can hear you.

A I say I don't remember if I did or not.

MR. VAN TRESS: If the court please, we object on the ground there is no foundation as to the time that this


272
witness went back the second time. There is nothing to show to what the yelling refers.

MR. SHOEMAKER: It is not as to any second time. This is the first visit to the reseroir.

MISS ZACSEK: The further objection, may it please the court, the question is not well taken in this: the witness has testified previous her uncle's house was approximately one mile from the Sleepy Lagoon, and she has further testified at the present moment that she and Matuz walked to her uncle's house, a distance of one mile. Therefore, it being a distance of a mile, I don't know the terrain or what existed between the Sleepy Lagoon and her uncle's house, and therefore there is no foundation laid by which it may be shown that she could have heard anything, being a mile away.

THE COURT: I will overrule Mr. Van Tress' objection. In response to this objection of yours, Miss Zacsek, which is overruled, your objection assumes that at all times she was a mile away from the scene, but there were times when she was going and coming, when she was very much closer. The sole question is as to whether she heard anything or not.

MR. SCHUTZ: I think, if the court please, it would appear from the testimony of the witness that she was at that place on two separate occasion. I think that is what counsel has in mind in raising this objection. If this relates to the first occasion when the witness was at Sleepy Lagoon, any testimony relating to fights or conflict might not be —


273

THE COURT: There hasn't any question been asked or any answer given that this witness was there the second time.

MR. SCHUTZ: That was my impression from the testimony.

THE COURT: You may have gotten that impression from some place, but the period covered by the questions at the present time is approximately between 8:00 and 11:00 o'clock.

MR. VAN TRESS: She stated she left and went to her uncle's house and came back, which indicates that there is a second time that she came back.

THE COURT: It depends on whether you want to call it a second visit to the Sleepy Lagoon. The fact remains and the evidence discloses what actually occurred, whether we call it one or two cisits. At the present time there hasn't been anything gone into as to noise after she got back.

Q BY MR. SHOEMAKER: Juanita, when you and Johnny Matuz got back to the position of "G," where your car was parked, and you said Josephine was in the car with Manuel Reyes, how soon then did you leave for Los Angeles?

MR. VAN TRESS: I object to that as assuming something not in evidence.

THE COURT: I think the last caluse probably warrants sustaining the objection.

Q BY MR. SHOEMAKER: Where did you go then?

A To the pool room.

Q How soon after you got back from your walk with Johnny Matuz did you leave for the pool room?


274

A Just as soon as we got in the car.

Q Just as soon as you got in the car. How many were in the car when you left for the pool room?

A I don't remember.

Q What is that?

A I don't remember.

Q Well, were you with Johnny Matuz?

A Yes.

Q Who drove the car back?

A He did.

Q Who else were in the car, your sister?

A Yes.

Q Manuel Reyes?

A I don't remember if he was there or not.

Q Do you remember how many were in?

A No.

Q Had either one of the other cars, "G-1" or "G-2" left before your car left?

A I don't remember.

Q Or did you all leave at the same time?

A I don't remember.

Q What is your best recollection?

A I think we left all at the same time.

Q All at the same time. All right, now, when you got back to the car at location "G" what, if anything, did you hear said by Johnny Matuz?


275

MR. SCHUTZ: Anything said by Johnny Matuz would be hearsay as to any of the other defendants, and I will object upon that ground.

THE COURT: The jury will bear in mind what I said previously, at the beginning of the trial, a statement made by one defendant is binding upon him, and upon him only unless it is shown to come within the rule that it was within the course of a conspiracy or was acquiesced in by some other means.

MR. SHOEMAKER: You may answer.

A I don't remember.

Q You don't remember?

A No.

Q What, if anything, did you hear said by Jack Melendez?

A I don't remember.

Q What, if anything, did you hear said by Manuel Reyes?

A I don't remember.

Q What is that?

A I don't remember.

Q What, if anything did you hear said by anyone else there before you started back?

A I don't remember.

Q You don't remember?

A No.

Q When you got back from the walk with Johnny Matuz, state whether or not — you may answer this yes or no —


276
whether or not you heard anything said by anyone upon the subject of a fight.

A Yes.

Q And by whom did you hear it stated?

A I don't remember.

Q Where was it spoken, after you got back to "G"?

A Yes.

Q And in whose presence was it spoken?

A I don't remember.

Q Was it in the presence of your sister and yourself?

A No.

MR. SCHUTZ: I submit the witness has answered the question I don't know, if the court please.

Q BY MR. SHOEMAKER: Was it said while you were there at the position "G"?

A Yes.

Q All right. Now, what was said?

A I don't remember.

Q What was said about a fight?

A I don't remember — there was a car that went over there and it would be a fight.

MR. SHOEMAKER: Did you get that answer, Mr. Kennelly?

(Answer read.)

THE COURT: Talk into the microphone, Juanita. I cannot hear you here.

MR. SHOEMAKER: Talk right into it like you were telephoning,


277
that is right, Juanita, just exactly like you were telephoning. Please keep your mouth close to the microphone and talk so we can hear you away back here.

Q Now, tell us what you heard said about a fight there when you got back?

A I just told you.

THE COURT: Well, I did not hear it. You did not talk loud enough, so say it again.

A That there was a car that went over there and picked a fight on them, that is all I remember.

Q BY MR. SHOEMAKER: Do you remember, Juanita, who said that?

A No.

Q What else, if anything, did you hear said about a fight?

A That is all I remember.

Q What else, if anything, did you hear said by anyone in the crowd after that?

A What did you say?

Q What was the next thing you heard said after you heard about the fight?

A I don't remember.

Q What, if anything, was said about going away from the reservoir?

MR. COVIELLO: May the record show, before the witness answers the question, that it is objected to as leading and


278
suggestive, your Honor please. If the witness can testify, she ought to testify.

THE COURT: I do not think it is objectionable as leading.

MISS ZACSEK: I think it is objectionable on the further ground it assumes a fact not in evidence, to wit, nobody said anything about leaving the reservoir, or whether there was a concerted agreement by any of the persons present.

THE COURT: I think perhaps that objection should be sustained and is sustained.

Q BY MR. SHOEMAKER: Before you started away from the reservoir, after you got back to position "9" I understand that there was — if I am wrong you tell me now — there were three boys and you and your sister in the car?

A Yes.

Q What was said, Juanita, if anything by any of the boys in the car just before you started away?

A I don't remember.

Q You don't remember?

A No.


279

Q Were you in the car before you heard about this fight?

A No, I wasn't in the car.

Q Where were you?

A I was standing by the car.

Q Standing by the car. Were the other boys there at the time, the three boys?

A I don't remember.

Q Do you remember now whether or not anything was said about who was in the fight?

MR. COVIELLO: If the court please, it is already asked and answered.

THE COURT: No, I don't think so.

MR. BARNES: Not that question.

THE COURT: Overruled.

MR. SHOEMAKER: You may answer.

A I don't remember.

Q Do you recall, Juanita, whether or not any of the boys in your car, who came back in your car, said anything just before you started back about what they were going to do?

A No.

Q I call your attention to page 6 of the transcript, Juanita, at line 1 of your testimony: "Q—Did the group you were with leave the reservoir?

"A—They left when we got into the car. They told us


280
to go in to get the other gang, to go to a party.

"Q—There was another bunch of Mexicans came to the reservoir?

"A—Yes.

"Q—You know from what you heard and saw that there was a fight?" —

MR. VAN TRESS: If the court please, we are going to —

MR. SHOEMAKER: "A—I heard there was, but I did not see it."

MR. VAN TRESS: We are going to object to this, if the court please, because the purpose —

THE COURT: Mr. Van Tress, will you wait, please, until the question is finished?

MR. SHOEMAKER: I have not finished it ye.

Q Did you so testify, Juanita?

MR. VAN TRESS: Now, if the court please, we will object to the line of questioning with the exception of the conversation which this witness has stated she did not remember, that took place after they got in the car and left the reservoir. She was asked at the Grand Jury: "They told us to go in to get the other gang, to go to a party." Now, I think the proper procedure would be to ask of this witness whether or not that refrehses her recollection as to whether or not there was another conversation, or isn't it a fact that there was a further conversation which she has stated here she did not remember.


281

THE COURT: I am sorry. I tried to explain this morning as well as I could, with my limited ability, what the law is in regard to this. I have indicated two methods of procedure. Your objection goes only as to one. The objection is overruled.

MISS ZACSEK: Well, I would like to make the further objection, may it please the court, that the substance of the questions asked, "heard there was but I did not see it, but heard there was a fight," and so forth, does not purport to help us in any manner, because it in no wise differs from what the testimony is.

THE COURT: If that were the only thing included in the question, I think the objection would be well founded, but it is included as part of the context, and I think properly so.

Q BY MR. SHOEMAKER: Did you so testify, Juanita?

A Yes, I did testify.

Q What is your answer?

A Yes.

Q Does that refresh your memory now, that there was some talk about going in to get the gang?

A Yes.

Q All right, now, tell us, Juanita, —

MR. BIRD: Did she say "Yes" or "No"?

MR. SCHUTZ: At this point I think all counsel under any rules laid down is entitled to ask is if that refrehses her


282
memory as to any conversation, and I think it is highly objectionable that counsel stops his observation by asking if there was any talk about going in and getting a gang, and I assign that as misconduct on the part of Mr. Shoemaker.

THE COURT: I will sustain the objection to the specific question. However, I do not think the question is limited to the question as to whether or not that refrehses the memory of the witness. A witness may obviously be asked to explain the apparent conflict, which is the way that question should be asked.

MR. SHOEMAKER: Pardon me, your Honor.

Q Does that refresh your memory as to the conversation that occurred there at the car, before you started home?

A Yes, it does.

Q What is that?

A Yes.

Q Will you tell us then what the conversation was, if you remember at this time?

A I don't remember.

Q What, if anything, was said there at the car before you started back on the subject of getting the gang together?

MR. VAN TRESS: "To go to the party."

MR. SHOEMAKER: I am asking the question, Mr. Van Tress.

MR. VAN TRESS: I suggest counsel read the entire conversation that was had, which is pointed out —

THE COURT: You might incorporate that in there,


283
Mr. Shoemaker.

MR. SHOEMAKER: I beg your pardon.

THE COURT: You might incorporate that in the quetation.

MR. SHOEMAKER: Very well. It will be in the form of a leading question.

Q Do you remember now, from having had your attention drawn to this transcript, that you heard a conversation there by the boys wherein they "told us," including you, "to go in to get the other gang to go to a party"?

A Yes, somebody said it.

Q What is that?

A Somebody said it but I don't know who did.

Q Somebody said it in your automobile or one of the other automobiles?

A In the other one.

Q One of the other cars?

A Yes.

Q Did you hear more than one person say that?

A I don't remember.

Q You don't remember?

A No.

Q Do you recall whether a number of boys said that?

A I don't know.

Q You don't know. Now, I call your attention to page 7 of your testimony given before the Grand Jury at line 4:

"Q—When you left the reservoir did the boys talk about


284
getting their gang together and coming back?

"A—They said they were going to get the gang together to beat up the other guys." Did you so testify?

A Yes.

Q Does that refresh your memory now, Juanita, as to what was said?

A No.

Q What is the answer?

A No, I don't remember.

MISS ZACSEK: Now, may we ask that counsel ask the witness to explain the apparent contradiction?

MR. BARNES: Just a moment. If the court please, there is another well recognized principle involved now, since the witness says she testified before the Grand Jury to that effect, and her memory is not refreshed and she has no present recollection of it, we are now squarely in the path of Section 2047 of the Code of Civil Procedure now, where in the McFarland case, I think it is 138 Cal., it permits —

MR. VAN TRESS: What page, counselor?

MR. BARNES: I don't know. We can look it up.

MISS ZACSEK: May we have 137 Cal.?

MR. BARNES: 138 Cal.

THE COURT: I will give you the page in a minute — 481 and 488.

MR. BARNES: 138.


285

MR. SCHUTZ: Did your Honor say 481 and 488?

THE COURT: The opinion on 481 and I think that particular point is covered on page 488.

MR. BARNES: The clerk has stepped into your Honor's chambers to get the colume, because it is inaccessible at this time. Thank you, Mr. Moore.

The portion to which I have reference is at page 487 and 488 of this case, and it reads as follows — that is a murder case, I see — murder or manslaughter.

THE COURT: I have a note of it before me, Mr. Barnes.

MR. BARNES: Yes, your Honor. Well, inasmuch as counsel wanted it, I will be glad to read it, unless your Honor feels —

THE COURT: There the question was before the court after the witness had testified he had no recollection of the facts, and quoting a question of the court: "Do you say that when you testified before that the facts to which you testified, and which have been called to your attention, were fresh in your memory when you testified to them?

"A—Yes, sir.

"Q—You now testify to those same facts from the record that has been called to your attention?

"A—Yes, sir."

MR. BARNES: So we are faced with this proposition, a question can now be asked whether or not the witness knew the facts at the time of the testimony before the Grand Jury, that she has no present recollection on the matter at


286
all. If she knew they were true at that time the Grand Jury record may be read and sort of an adoption proceeding take place there under that Section 2047 of the Code. In other words, having testified at that time when she knew it was not true, and having now no present recollection, it is not then a question of refreshing her memory, it is a question of proving that she did so state, and it thus becomes the evidence of the witness in this proceeding.

MISS ZACSEK: Is there anything in the record — if there is, I have not heard it — that she has stated what she said in the Grand Jury was true?

MR. SHOEMAKER: Yes.

MR. BARNES: She said she so testified before the Grand Jury and the questions will be asked with regard to those matters, but there was an objection made and we are stopped.

THE COURT: I think that we should follow the McFarland case as closely as possible, but not go beyond it in any way, however.

MR. BARNES: In order that we may have the actual language of the McFarland case in mind, it may save objections, your Honor, if we may read it at this time.

THE COURT: If it will assist counsel any, I haven't any objection.

MR. BARNES: In this case the Supreme Court had this to say: One Pennycock was a witness for plaintiff and defendant moved to strike out the entire testimony of this


287
witness as hearsay, and not to be relied on at all * * * * the court did not err in its ruling.

Now, it is with this rule in mind that we now desire to proceed, even though this witness has no present recollection after having her memory refreshed, but she said she did testify that she now cannot remember, that we may proceed further in pursuant to the Code Section 2047, and the approval thereof by the Supreme Court in this case.

THE COURT: It seems to be the express purpose back of 2047, because even before 2047 the rule as to refreshing the witness' memory existed, and it required no statute to authorize it, and it is a special statute enlarging the scope of the refreshing of memory rule.

MR. BARNES: Yes, your Honor.

MISS ZACSEK: On the other hand, aren't we confronted with this situation, the facts in this case, however, are not parallel with the McFarland case in this: that the foundation has not been laid, first, as to whether or not this witness spoke the truth at the Grand Jury hearing and, secondly, that her memory then was fresh and better and more accurate rather than it is at the present time?

THE COURT: I think there are two answers to that objection. One is, unless there has been something affirmatively showing otherwise, the witness was under oath and the witness is presumed to speak the truth.

MR. BARNES: I take it there is no question, your Honor,


288
here that the transcript from which counsel has been reading is the official, duly certified transcript of the Grand Jury proceedings?

MR. SCHUTZ: A copy of them.

MR. BARNES: No, this is the original we have.

MR. SHOEMAKER: We have the filing stamp of the County Clerk upon it, your Honor.

THE COURT: Also I think it is a fair inference that a witness testifying reasonably, shortly after an occurrence, has a better memory of the occurrence than when called upon to describe that same occurrence several months later. There is nothing in the McFarland case that requires that the specific question be asked. As a matter of fact, the witness ought to be asked, and it may be better practice and make a better record if we ask the witness specifically whether the testimony she gave before the Grand Jury was true, and whether her memory was better then than it is now.

MR. SHOEMAKER: Juanita you appeared before the Grand Jury in this case on Tuesday, August 4, 1942; do you remember that?

A Yes.

Q And the happenings of the previous Saturday night and Sunday morning, whatever they may be, were some three days before; do you remember that? What is your answer?

A Yes.


289

Q Speak up so the jury can hear you.

A I said yes.

Q Very well. And at the time you testified before the Grand Jury, you were sworn to testify to the truth, the whole truth and nothing but the truth, weren't you?

A Yes.

Q And did you testify to the truth before the Grand Jury?

A Yes.

Q And whatever you remembered before the Grand Jury and testified was the truth as you then remembered it?

A Yes.

MR. SHOEMAKER: Now, at this time may I read another portion of this record on page 7?

Q Juanita, calling your attention to page 7 of the official transcript before the Grand Jury at line 11: "Q—" — now, this is your testimony before the Grand Jury: "Q—Who first stated about getting the gang to come back and beat up the other Mexicans? A—I don't remember, but I heard they were going to go get the gang, but I do not remember who said it." Did you so testify?

A Yes.

MR. VAN TRESS: Now, I am going to object, if the court please. I understand this goes in as evidence now, not as evidence of impeachment, and I am going to object to the question and move to strike the answer on the ground there


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is no foundation laid as to which boys are referred to. The question is: "Who first stated about this matter," and she says, "I don't remember," and the foundation has not been laid.

THE COURT: That would not preclude the testimony being admissible, because it may well be that a person on a certain specific occasion heard something said and would be able to state who said it. Another person, however, might identify the speaker.

MR. VAN TRESS: Our further objection is this: that there has been no foundation laid to show who was present when the statement was made, and whether or not any of the defendants —

THE COURT: Do you know of any rule which says you must show time, place and parties present, except in the single instance of impeachment?

MR. VAN TRESS: Well, I would like to finish the objection. I can answer that or attempt to, your Honor. What was my objection, Mr. Kennelly?

(Record read.)

MR. VAN TRESS: — any of the defendants that I represent were present or that they were within hearing of any statement, or whether or not any defendants that I represent made any such statement.

MR. BARNES: In that connection, your Honor, may I say this —


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THE COURT: The answer is perfectly obvious, assuming just for the sake of argument none of Mr. Van Tress' clients were present, we already have several persons present who are parties to this proceeding, and at least as to them the evidence would be admissible. The only way I can cover the situation is by the instruction I gave with reference to the statement of fact of one defendant in the absence of the other, of course, but if that person were shown to be present that rule does not apply, either.

MR. BARNES: Your Honor would not, however, limit us at this particular time only to those about whom this witness has testified?

THE COURT: Oh no.

MR. BARNES: We have other evidence coming in here, you know.

THE COURT: I think I covered that in my original statement, Mr. Barnes.

MR. BARNES: I think you did.

THE COURT: If there was a statement made, and there was no evidence as to who made the statement, or at the time the statement was made, who was there, it is just the same as if I were passing a hotel room and I heard a statement made, the mere fact that I was not in the room or could not see who said it would not exclude the testimony, because the speaker might be identified by some other witness.

MR. BARNES: Yes, your Honor.


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Q BY MR. SHOEMAKER: Now, Juanita, at the time you testified on August 4, 1942, before the Grand Jury in this matter, was your memory then better on these subjects about which you testified than it is today?

A Yes.

Q Your memory was fresh at that time?

A Yes.

Q Is that right?

A Yes.

Q And is it true, Juanita, that all of the things to which you testified in this transcript were true at the time you so testified?

A Yes.

MR. SCHUTZ: I think that has been asked and answered, if the court please.

MR. BARNES: That particular question has not, your Honor.

THE COURT: It will be overruled. The answer may remain in the record.

Q BY MR. SHOEMAKER: What time would you say it was, Juanita, when you and your sister and the boys actually left location "G" at Sleepy Lagoon and started back?

A I don't remember.

Q Was it sometime after 11 o'clock at night?

A I don't remember.

MR. SCHUTZ: I did not have the answer.


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MR. BARNES: "I don't remember" was the answer.

MR. SCHUTZ: Thank you.

Q BY MR. SHOEMAKER: When you started away from Sleepy Lagoon in the car from position "G," were there three boys in the car and you and your sister Josephine?

A I think there was three boys; I am not so sure.

Q Who were they?

A They were the same boys we were with.

Q What is that?

A The same boys that we went over there with.

MR. SCHUTZ: If the court please, this has all been gone over, and I make the objection it has been asked and answered.

Q BY MR. SHOEMAKER: Were they the same boys that you went with?

A Yes.

THE COURT: Apparently there is some slight difference.

MR. BARNES: Yes.

Q BY MR. SHOEMAKER: Did Manuel Reyes go with you to the lagoon?

A He went with us to the lagoon.

Q He and Matuz and Melendez, the three of them went with you and came back with you; is that right?

A They went, but I don't know whether they came back with us, all three.

Q Who were the three boys that came back with you?


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A Jack and Johnny, and I am not so sure if Manuel came back with us.

Q When you refer to Johnny, you mean Johnny Matuz?

A Yes.

Q When you refer to Jack you mean Jack Melendez?

A Yes.

Q Who was the third boy?

A Manuel Reyes.

Q Manuel Reyes, Very well. Where did you proceed from position "G," where did you go when you drove away from the lagoon?

A I told you to the poolroom.

Q To the poolroom?

MR. VAN TRESS: Just a moment. I move to strike out the answer as a conclusion of the witness. We have evidence which we will establish it was not a poolroom. It is merely a conclusion, and I object to it.

THE COURT: Overruled.

Q BY MR. SHOEMAKER: What poolroom do you refer to?

THE COURT: I may say when she states it is a poolroom, of course, that does not make it a poolroom. The witness referred to it as a poolroom, and she may be in error as to the description.


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Q What pool room do you refer to, Juanita?

A I don't know.

Q What do you mean by "pool room"? Where was it located?

A In Long Beach.

Q Where?

A In Long Beach by 38th.

Q On Long Beach Avenue?

A By Vernon, I mean.

Q At the corner of Vernon Avenue and Long Beach Avenue in Los Angeles?

A Yes.

Q Is that right?

(Witness nods head affirmatively.)

Q You nod your head. Do you mean "Yes"?

A Yes.

Q Which corner, the northwest corner or northeast corner?

MR. BIRD: I object to that as assuming that it is on the corner, your Honor.

MR. SHOEMAKER: I will withdraw the question.

Q Is the pool room to which you refer on the corner there?

A Not on the corner.

Q How far from the corner is it?

A I don't know.


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Q Near the corner?

A I think it is half a block off from the corner.

MR. SCHUTZ: Try to keep your voice up, Juanita, if you will, please. It is very difficult to hear you.

THE COURT: If you will talk into the microphone we will get along better, Juanita.

THE WITNESS: I am.

THE COURT: You turn your head away from it and it does not go through.

MISS ZACSEK: May I inquire whether all these defendants can hear this witness' testimony?

(Several defendants answered "No.")

MISS ZACSEK: Then, I urge that something be done, because I feel the defendants should hear everything that is said by the witness.

THE COURT: In other words, the loudspeaker was located so that if defense counsel hear, the defendants should be able to hear, unless they have some defect of hearing. If defense counsel do not hear they will have to just keep jolting the witness.

MISS ZACSEK: It is not counsel; it is the defendants I want to be able to hear the witness.

THE COURT: Defense counsel are having difficulty in hearing, and we have repeated the witness' answers. Mr. Schutz, for example, is in a position where he has had difficulty in hearing. If he does not hear, it is very


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proper to speak up. The trouble, Juanita, is that microphone does not work unless you talk right straight into it; if you turn your head away from it it does not go through.

MR. SHOEMAKER: Juanita, will you use the microphone just like you use a telephone? The witness has been instructed on that time and time again. You can adjust it, Juanita, pull it up to you; adjust it any way you want to.

THE WITNESS: It is all right.

MISS ZACSEK: May I address this witness a moment?

THE COURT: I did not hear what you said.

MISS ZACSEK: May I address this witness just a moment on this subject of the microphone? Perhaps I might be able to help.

THE COURT: All right, let us see if you can help out. Go ahead.

Q BY MISS ZACSEK: Juanita, look, you want to be helpful, don't you?

A Yes.

Q All right. You want all of those boys to hear everything you say, don't you?

A Yes.

Q All right. Will you please be a good girl and take this microphone in your hand — you have talked on telephones, haven't you Juanita?

A Yes.


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Q You be very nice and helpful, and take this good and hard in your hand, will you, please, just as if it were a telephone. Let us see if we can work it up there to where you are comfortable. You are going to sit there?

A Yes.

Q You talk right into that, will you do that?

A Yes.

Q You take that, because you want every one of those boys to hear you, don't you?

A Yes.

Q You want Henry to hear you, don't you?

A Yes.

MR. BARNES: I doubt —

THE COURT: I think we are going too far.

MR. BARNES: I think Henry — I doubt if counsel is really helping out.

MISS ZACSEK: No, I am helping myself; I want to hear.

MR. BARNES: You probably have something else in mind.

MISS ZACSEK: Now, Mr. Barnes, —

THE COURT: Just a moment, counsel. Let us start with our next question.

MISS ZACSEK: I am just old enough to know how to handle children.

MR. BARNES: What did you say?

MISS SACSEK: I am just old enough to know how to handle children.


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MR. SHOEMAKER: Is that in the record?

MISS ZACSEK: No, it is not. It is simply in reply to Mr. Barnes' question. It is simply being courteous. He asked me what I said, and I repeated it.

THE COURT: Let us proceed.

Q BY MR. SHOEMAKER: When you say you went to the pool hall near the corner of Vernon and Long Beach in the City of Los Angeles, do you know whether or not the other two cars, "G-1" and "G-2" went to the same place?

A I don't remember.

MR. SHOEMAKER: What is the answer, Mr. Perry?

(Answer read.)

Q You will have to speak louder. I could not understand that answer back here. Did you see those two cars at the pool hall after you arrived there?

A Yes.

Q Did you see the same people in and about those two cars that you had seen at the lagoon?

A I don't remember.

Q What was your answer?

A I told you I didn't remember.

Q When you got to the pool hall did you recognize that as a place where you had been before?

A I never had been there, but I had seen it.

Q Had you heard about it before?

MR. VAN TRESS: I object to that as calling for a conclusion,


300
incompetent, irrelevant and immaterial.

THE COURT: Overruled.

Q BY MR. SHOEMAKER: What was your answer?

A What did you say?

Q Had you ever heard about it before?

A I haven't heard about it, but I seen it.

Q You had heard about it —

MR. SCHUTZ: What was that answer?

THE COURT: "I had not heard about it but I had seen it."

MR. BARNES: "I hadn't heard about it but I had seen it."

Q BY MR. SHOEMAKER: What, if anything, was said by the boys in your car when you left the lagoon and coming back about what they were going to do, if anything, at the pool hall?

A I don't remember.

Q What is that?

A I don't remember.

Q When you arrived at the pool hall what time was it?

A I don't know.

Q Was it after midnight?

A I don't remember whether it was or not.

Q What is your best recollection?

A I don't know.

Q When you got to the pool hall did you all get out of the car or did you stay in it?

A We stayed in it.


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Q Did anybody get out?

A Yes.

Q Who got out?

A Johnny.

Q Johnny Matuz?

A Yes.

Q Did Jack Melendez get out?

A I don't remember.

Q What did you see Johnny Matuz do?

A He went in to buy some cigarettes.

Q Were there some other boys there at that time?

A I don't remember.

Q Did you see some other men there at the time you arrived?

A I don't know.

Q How many people did you see there at the pool hall after you got back?

A I don't remember.

Q Did you see as many as fifteen?

MR. COVIELLO: If your Honor please, I submit that is leading and suggestive. The girl said she didn't remember, and I do not think counsel should lead her.

THE COURT: She may not remember the exact number and still may be able to give us an approximate number.

Q BY MR. SHOEMAKER: Do you remember, Juanita, whether or not there were as many as thirty men and boys around the


302
pool hall when you got there?

A I don't remember.

Q You don't remember?

A No.

Q Do you remember whether or not Jack Melendez and John Matuz went into the pool hall after you arrived?

A No.

Q You don't remember?

A No.

Q How long was John Matuz gone when he got out of the car?

A I don't remember.

Q Did you and Josephine sit in the automobile?

A Yes.

Q Did all three of the boys get out?

A I don't remember.

Q Did you see those three boys talk with other boys around there?

A I don't remember if I did or not.

Q How many boys would you estimate you saw gathered around the pool hall?

MR. SCHUTZ: I submit that has been asked and answered.

MR. VAN TRESS: That is assuming something not in evidence that there was a gathering around the pool hall.

MR. SHOEMAKER: I will withdraw the question.

Q Tell us whether or not a number of boys gathered


303
around the pool hall.

MR. SCHUTZ: I object to the term "gathered around the pool hall."

THE COURT: Overruled.

A What did you say?

Q BY MR. SHOEMAKER: What is that?

A What did you say?

A I asked you to tell us whether or not a number of boys gathered around the pool room after you got back from the Sleepy Lagoon.

MR. COVIELLO: If your Honor please, I submit the record should show that it is leading and suggestive; I make that objection again.

MR. SHOEMAKER: Should show what?

THE COURT: Overruled.

A I don't remember.

Q BY MR. SHOEMAKER: You don't remember?

A No.

Q Did you see several automobiles there at the pool room after you got back from the Sleepy Lagoon?

A I don't remember if I did or not.

Q Tell me this: Did you see as many as ten automobiles around the pool room at Vernon and Long Beach Avenue after you got back from the Sleepy Lagoon that night?

A I don't remember.

Q You don't remember?


304

A No.

Q How many cars altogether did you see come there around the pool room after you got back?

MR. VAN TRESS: We object to that as assuming something not in evidence, that the cars did come around the pool room.

THE COURT: She has already testified that there were two that came there. Objection overruled.

MR. VAN TRESS: Then, it has already been asked and answered.

THE COURT: That does not mean there were no other cars than the two.

MR. SHOEMAKER: Read the question, Mr. Perry, please?

(Question read.)

A I don't remember.

Q You counted them, didn't you?

A I didn't count them.

Q What is that?

A I didn't.

Q You knew at the time how many there were, didn't you?

MR. VAN TRESS: I object to that as argumentative.

THE COURT: Sustained as to that particular question.

MR. SCHUTZ: I joing in that objection.

Q BY MR. SHOEMAKER: Now, calling your attention to your testimony before the Grand Jury, as shown by the official transcript, on page 8 — in order to get the context I will call your attention to page 7, at line 15, which


305
connects up with the last portion I read to you before:

"Q—Did you go somewhere in the automobile with these three boys?" That refers to when you left the lagoon.

"A—Yes.

"Q—And your sister Josephine went along?

"A—Yes.

"Q—Where did you go?

"A—In the automobile?

"Q—Yes.

"A—To the pool hall on Long Beach.

"Q—Did any of the boys get out of the automobile when you got to the pool hall?

"A—The boys in the car with us?

"Q—Yes, with you and your sister.

"A—Yes.

"Q—Who got out?

"A—Jack.

"Q—Jack Melendez?

"A—Yes.

"Q—Did he go in the pool hall?

"A—No, he was talking to the boys.

"Q—Who were they?

MR. VAN TRESS: "Where were they?"

MR. SHOEMAKER: Thank you.

"Q—Where were they?

"A—On the other side, in their cars.


306

"Q—They were in their cars near the pool hall?

"A—Yes.

"Q—Did anyone else get out of the car you were in besides Jack Melendez?

"A—The other boy who was driving.

"Q—John Matuz?

"A—Yes.

"Q—He also got out?

"A—He went in to buy some cigarettes.

"Q—Did he talk to any Mexican boys around the pool room?

"A—I did not see him.

"Q—How long was he in the pool room?

"A—Around ten minutes.

"Q—And then you left?

"A—Yes.

"Q—Did any other boys get in your automobile, or the one you were in?

"A—No, sir.

"Q—Did any other automobile follow you away from the pool room?

"A—When we got over there, some boys went after some other boys, and a lot of cars came with boys and girls also.

"Q—You drove away from the pool room in your car?

"A—Yes.

"Q—Where did you go?"

MISS ZACSEK: Just a moment.


307

MR. BIRD: I object to that.

MR. SHOEMAKER: I will stop with the answer: "When we got out there some boys went after some other boys, and a lot of cars came with boys and girls also."

Q Now, did you so testify?

A Yes.

Q It is true that when you gave that testimony, Juanita, your memory was fresh?

A Yes.

Q What you testified to was the truth, at the time you so testified?

A Yes.

THE COURT: Do you remember that now, Juanita? After he read it to you, do you remember it now?

MR. SHOEMAKER: What is your answer?

MR. BARNES: I do not think, if the court please, the witness understands if she is being asked whether or not she so testified or whether those are the facts.

THE COURT: Do you remember testifying to that, after you have heard it read?

A That I remember how many cars were there?

THE COURT: Yes.

A No.

Q BY MR. SHOEMAKER: Do you have any memory today, Juanita, of the things to which you testified before the Grand Jury on August 4th?


308

MR. BIRD: That is too broad, your Honor.

THE COURT: I think it is rather broad.

MR. BIRD: It should be limited to the things which have been read back to her.

Q BY MR. SHOEMAKER: With reference to these matters to which I have directed your attention in the transcript, do you have any memory now, Juanita, of those things, or have you forgotten them?

A I have forgot.

Q What is that?

A I have forgot.

Q Are you able to say now, Juanita, whether or not there were as many as ten cars which assembled there or congregated near the pool hall that night after you got back from the Sleepy Lagoon?

MR. VAN TRESS: I object to that as already asked — there was nothing read back to her from the Grand Jury transcript which indicated any number of cars.

THE COURT: There was testimony as to the number of cars at the Sleepy Lagoon. Overruled.

Q BY MR. SHOEMAKER: You may answer, Juanita. Do you understand the question?

A No.

MR. SHOEMAKER: Will you read it to her, Mr. Perry, please?

(Question read.)


309

A I don't remember how many cars were there.

Q BY MR. SHOEMAKER: Do you now remember how many boys altogether assembled there after you got back from the Sleepy Lagoon? Were there as many as thirty-five or forty?

A I don't remember.

Q You don't remember?

A No.

Q Now, tell us whether or not you and your sister Josephine made another trip that same night back out to the Williams ranch where the Sleepy Lagoon is located?

MISS ZACSEK: I object to that, if the court please. I feel that this witness has been led by easy stages and gentle means and innocuous questions to lull her suspicions to the point where she now would get back to that matter of the Williams ranch —

MR. SHOEMAKER: If the court please, I do not think that it lies in the mouth of this counsel to frame that objection or to put anything in the mind of this young girl, who has testified —

THE COURT: If there is any objection, let us have it without the adjectives.

MISS ZACSEK: Well, I object, may it please the court,— that is, I object to the question, may it please the court, on the ground that this witness is one of tender years, apparently of very young mentality. For that reason I feel that, as an officer of this court, should object because that


310
question tends to incriminate this witness and to place her within the confines of this whole issue, as it happened on the Williams ranch on the return trip there. For this reason I do make the objection, because, I feel in view of the witness' age, in view of her mentality, as I have observed it, that she is not aware and would be unable to be aware of what she is doing to herself, unless the court, counsel or some officer of the court guided or protected her. It is for that reason I make the objection.


311

MR. BIRD: If the court please, for like reasons as given by Miss Zacsek — I do not make the objection, because I feel it is not the proper thing to do, but for the same reason she has has given. I now request the court or suggest to the court, rather, this is the proper time to again admonish the witness as to her constitutional rights.

THE COURT: The witness has been admonished, and I have in mind her apparent familiarity with the rule when the witness testified yesterday. I do not think it is necessary for the court to repeatedly admonish the witness, because it might have a detrimental effect, which the court does not want to impose upon the witness.

MR. SCHUTZ: May I be heard for a moment, if your Honor please? I do not make the objection, but I join with Mr. Bird in offering to the court the suggestion, in view of this witness' obvious limited mentality and her extreme youth, that the court might remind the witness of her privilege.

THE COURT: I do not think there is anything that indicates the witness has a very low mentality. She has apparently arrived at the average grade in school for a person of her years.

MR. SCHUTZ: By "limited mentality." if your Honor please, I do not mean to imply the girl is stupid, in anywise, or is any different from a normal girl. It is perfectly possible, if your Honor please, that this young


312
lady may be under some misapprehension which a further admonition by the court might tend to bring to her mind. I think in view of the young lady's age that the privilege, which may not be as intelligible to her as if she were of more mature years, should be explained to her. I do not make an objection, but merely urge upon the court to admonish this witness at this juncture.

THE COURT: The court will repeat the statement made to the witness this morning. You have a right to refuse to testify on the ground it might incriminate you, refuse to answer any question which would have a tendency to affect you in any crime which might be involved in the testimony called for in the questions asked.

MR. VAN TRESS: May it please the court, may I point out— it may be out of order — in fact, it might have some bearing, if the fact were known, that the witness is a ward of the court now, or of the State, by reason of certain proceedings. I think that might have some bearing on whether or not the court would give that admonition, by reason of the fact that she is a ward of the court.

THE COURT: She is not a ward of this court. Do you mean she is a ward of the Juvenile Court?

MR. BIRD: I assume what Mr. Van Tress means is, she is a ward of the Superior Court of Los Angeles County.

THE COURT: The Superior Court of Los Angeles County has no jurisdiction to make wards of minors; that rests with the Juvenile Court, and this is not the Juvenile Court. You may proceed.

MR. SHOEMAKER: Will you read the last question, Mr. Perry, please? Listen to the question, Juanita.

(Question read.)

A I don't remember.

Q BY MR. SHOEMAKER: You don't remember?

A No. You mean if we went again over there?

Q Yes.

A I don't know what you mean.

Q On the night of Saturday, August 1, 1942, after you had got back to the pool room on your return from the Sleepy Lagoon, you told about Jack Melendez and the other boys getting out of your car; later on that same night did you and Josephine go back to the Williams ranch where the Lagoon is located?

A Yes.

Q What time of night was it when you started back to the ranch from the pool hall?

A I don't remember what time it was.

Q Was it as late at 1:30 o'clock in the morning?

A I don't know.

Q What is that?

A I don't know.

Q What is your best recollection, Juanita?

A I don't know what time it was.


314

Q What is your best recollection? How late was it?

A I don't know how late it was.

Q You were there; you know, don't you?

A We didn't have — I didn't have no watch or anything to look at.

Q Did you go back in the same automobile?

A Yes.

Q Who went in it when you started back on this trip?

A The same boys that were in it.

Q That is, John Matuz?

A Yes.

Q Jack Melendez —

A Yes.

Q — and Manuel Reyes?

A Yes.

Q Your sister Josephine and yourself?

A Yes.

Q Any other boys?

A No.

Q Who drove the car back to the Williams ranch that night?

A Johnny Matuz.

Q Johnny Matuz?

A Yes.

Q Now, how many cars — strike that out. Did any other automobiles start out from the pool hall at Vernon


315
and Long Beach on the trip back to the Williams ranch that night at the same time you started out?

MR. RAVIN: I object to that question as not being within the knowledge of the witness.

THE COURT: Overruled.

MR. VAN TRESS: The further objection, it calls for a conclusion.

THE COURT: It does not call for a conclusion, if you ask somebody whether on a certain expedition some other cars went along.

MR. VAN TRESS: I object to the form of the question as assuming something not in evidence.

THE COURT: Overruled. Repeat the question.

(Question read.)

A Yes.

Q BY MR. SHOEMAKER: What is your answer?

A Yes.

Q How many would you say?

A I don't know.

Q As many as ten, Juanita?

MR. SCHUTZ: That has been asked and answered.

MR. SHOEMAKER: Not this question.

THE COURT: Overruled.

A I don't remember.

Q BY MR. SHOEMAKER: What is your answer?

A I don't remember.


316

Q You saw them going back to the ranch, didn't you? Is that right,

A Yes.

Q What is that?

A Yes.

Q And they all started from the pool room, did they?

A I don't remember if they all started from the pool room.

Q Where did you start from?

A From the pool room.

Q You started from the pool room?

A Yes.

Q Did the other cars start from the same place?

A I guess they all did; I am not so sure they all did or not.

Q How many boys altogether did you see in the cars that started back to the Williams ranch that night?

A I don't remember.

Q Did you count them?

A No.

Q Did you count the automobiles?

A No.

Q What is that?

A No.

Q Were there as many as ten, or more or less?

A I don't know how many cars there were.


317

Q What is your best memory?

A I don't know.

Q Before you left the pool hall that night and started back to the Williams ranch on this second trip, did any of the cars go to a gas station near the pool room?

A I don't remember.

MR. SCHUTZ: I object, if the court please, to the form of that question as leading and suggestive. If the witness knows, I believe she may be able to answer.

THE COURT: I think counsel is under a misapprehension as to what a leading and suggestive question is. A leading and suggestive question is one which indicates what the answer should be, so a person unfamiliar with the facts might give the desired answer. It is not leading merely because it indicates the subject matter.

MR. SCHUTZ: Perhaps I was in error. I was under the impression the form of the question appeared to be leading.

MR. SHOEMAKER: Will you read the question, Mr. Perry, please?

(Question read.)

A I told you I didn't remember.

Q BY MR. SHOEMAKER: You don't remember?

A No.

MR. SCHUTZ: The answer was, "I don't remember"?

Q BY MR. SHOEMAKER: Do you know how in what order the cars started back to the Williams ranch, which car was


318
leading and where you were in the possession, if there was one?

MR. VAN TRESS: I object to the form of the question as assuming something not in evidence, that there was a lead car and there was a procession; it is a compound question.

THE COURT: Overruled.

Q BY MR. SHOEMAKER: You may answer.

A I don't remember.

Q Where was your car with reference to the other cars as you started back to the ranch?

A I don't know.

THE COURT: Was there any car ahead of yours or was your car ahead of the others, or were you the last car?

A There was some cars in front of us, but I don't know how many cars there were.

Q BY MR. SHOEMAKER: There were some cars in front of you?

A Yes.

Q As you went back to the ranch?

A Yes.

Q And there were some cars behind you also?

MR. SCHUTZ: As long as you are repeating the answer, why don't you repeat it all?

MR. BARNES: I submit, counsel should not argue —

MR. SCHUTZ: I do not propose to argue, but I propose —

MR. BARNES: I suggest counsel address the court rather


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than —

MR. SCHUTZ: If the court please, I ask that counsel be admonished for repeating what purports to be the answer of the witness without repeating it verbatim, as it was given. If it was intentionally repeated for the benefit of the jury, at least he should repeat it all.

THE COURT: I think we should all avoid repeating a witness' answer.

Q BY MR. SHOEMAKER: Were there some cars behind you also?

A Yes.

Q Were you able to see how many cars were in front of you?

A No, I don't know how many cars were in front of us.

Q Or how many were behind you?

A No.

Q Now, let me call your attention to a transcript of your testimony before the Grand Jury, Juanita, commencing on page 9, at line 7: "Q—You drove away from the pool room in your car?

"A—Yes.

"Q—Where did you go?

"A—To the Sleepy Lagoon, to the party over there."

MR. SCHUTZ: If the court please, I am going to object to this. If it is for the purpose of refreshing her memory, she has already testified she went to the Sleepy


320
Lagoon.

THE COURT: May I suggest that the question has not been finished? I am assuming this is to orient the witness.

MR. SHOEMAKER: That is right.

MR. SCHUTZ: I am reading the transcript, and my objection was predicated upon that reading. Perhaps I was ahead of counsel in my reading.

Q BY MR. SHOEMAKER: "Q—Where did you go?

"A—To the Sleepy Lagoon, to the party over there.

"Q—Where the dance was going on?

"A—Yes.

"Q—On the Williams ranch?

"A—Yes, sir.

"Q—Did any other automobiles follow you to the Williams ranch?

"A—Yes, there were a lot of cars."

MR. BIRD: Pardon me.

MR. SCHUTZ: At this point I renew my objection.

MR. SHOEMAKER: I haven't finished yet, Mr. Schutz.

MR. BIRD: Just a minute. I want to ask counsel to omit the next six lines, because they contain matters as to which the witness has not been previously asked as to her present recollection.

MR. SHOEMAKER: I am going to omit them.

MR. BIRD: I ask those six lines be omitted.


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MR. SCHUTZ: That is what I had in mind when I made my objection, which was premature, perhaps.

THE COURT: As far as what has been read now, it is to orient the witness.

MR. SHOEMAKER: Yes. I will omit down to line 1 at the top of page 10, and continue with the question.

"Q—About what time was it when you arrived at the dance, when you went back there?

"A—I think around 12 o'clock.

"Q—Wasn't it later than that?

"A—I am not so sure.

"Q—Wasn't it along about 1 o'clock or a little later on Sunday morning?

"A—Around there, because I got home at 2 o'clock.

"Q—It was around 1 o'clock in the morning?

"A—Yes, sir.

"Q—How many cars drove up to the place where the dance was being held?

"A—I did not get to count them.

"Q—How many would you say?

"A—I saw around ten.

"Q—Approximately ten cars?

"A—Yes, sir.

"Q—Did each one of these cars have a number of Mexicans in it?

"A—A bunch of Mexicans?


322

"Q—Yes.

"A—Some of the cars had Mexicans in them.

"Q—About how many Mexicans would you say were in the ten cars altogether?

"A—In one of the cars that passed us there were three Mexicans, and in another I saw four, and those are all the other cars I saw." Did you so testify, Juanita?

A Yes.

Q BY MR. SHOEMAKER: At the time you testified —

THE COURT: Mr. Schutz's objection was somewhat premature at the time, but is sustained at this time without the necessity of repeating it.

MR. SHOEMAKER: Pardon me, your Honor.

THE COURT: The objection is sustained. Most of your inquiry is directed to conditions at the ranch as to which the witness has not testified. Your questions at the present time were as to the number of cars and the number of persons headed towards the Sleepy Lagoon.

MR. SCHUTZ: At this time I ask the court to order stricken from the record all portions of the transcript now read which apply to the objection heretofore made.

THE COURT: I cannot very well strike the questions from the record. The jury is instructed, however, to disregard the question entirely and not to draw any inference from the asking of the question.

MR. SCHUTZ: Thank you, your Honor.


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MR. SHOEMAKER: There are parts of that should remain in.

THE COURT: It may be proper a little further on in the record, but not in the present state of the record.

Q BY MR. SHOEMAKER: Juanita, when you arrived — strike that out. Was there a procession of cars that left the pool room that night to go back to the Williams ranch?

A I don't remember.

Q What is your answer?

A I don't remember.

Q Did you all drive along in a string, strung out along the road, or how did they go?

A I don't know.

Q You saw them, didn't you?

MR. VAN TRESS: I object to that as argumentative.

THE COURT: Sustained.

Q Juanita, when these cars left this place that you called the pool room, did they drive side by side or one in back of the other?

A One in back of another.

THE COURT: That is all.

MR. SHOEMAKER: What is her answer?

THE COURT: She said in back of one another.

MR. SHOEMAKER: In back of one another.

Q And when you — strike that out. Did you finally


324
arrive at the Williams ranch on that trip back that night, did you go back to the Sleepy Lagoon?

A No.

Q Did you drive in the road by Sleppy Lagoon?

A We passed by Sleepy Lagoon.

Q You passed by Sleepy Lagoon. Now, when you passed by the Sleepy Lagoon and got on the Williams ranch, do you remember whether or not there were as many as ten automobiles in that string of cars?

A I don't remember.

Q You don't remember?

A No.

Q When you got to the Williams ranch did you stop anywhere along near the Sleepy Lagoon?

A I don't remember if we did or not.

Q Well, tell us where you did stop.

A I don't remember.

Q Did you go down to where the houses were on the Williams ranch, shown on Exhibit 1?

MR. SCHUTZ: I think that has been asked and answered, if the court please, and I object to it —

MR. SHOEMAKER: Let me finish my question, please.

THE COURT: Overruled.

Q BY MR. SHOEMAKER: Did you go down to where the houses are shown on Exhibit 1 in the circle, or did you stop near the Sleepy Lagoon?


325

A I don't remember.

THE COURT: It just occurred to me that there might be more than two alternatives. There might have been a stepping point somewhere between the two points.

MR. SHOEMAKER: All right.

Q Tell us where you stopped after you arrived at the Williams ranch.

A First we stopped at the Sleepy Lagoon and then we kept on.

Q You first stopped at the Sleepy Lagoon?

A Yes.

Q Now, did all of the cars stop there at first?

A I don't remember.

Q How many cars stopped there?

A I don't know.

Q How long did you stop?

A Quite a little while until they took a car from the ditch.

Q One car got in the ditch, did it?

A Yes.

Q Whose car was that?

A I don't know.

Q Who was driving it?

A I don't know; I didn't get up and see.

Q How close was that car to you?

A I don't remember.


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Q Was it next to you?

A I don't know.

Q Was it in front of you or in back of you?

A It was in the front.

Q It was in the front of you?

A Yes.

Q How many cars in front of you?

A I don't know.

Q Who helped pull that car out of the ditch, if anyone?

A I don't know who helped.

Q Did some of the other boys help?

A Yes.

Q What is it?

A Yes.

Q Who were they?

A I don't know who they were.

Q Did any of the boys in your car help pull that car out of the ditch?

A I don't remember.

Q You don't know that. Did any of the boys in your car get out at the time you stopped near the lagoon?

A I don't remember if they did.

Q Did you or your sister get out?

A No.

Q How long did you stop there near the lagoon in order


327
to get that car out of the ditch?

A I don't know how long it was.

Q Half an hour?

A I guess it was around there.

Q Did they have the lights turns on or turned off of those cars while you were working on that one?

A I don't know.

Q You don't know. After you got the car out of the ditch did all of the automobiles proceed on over to the houses shown in the circle on Exhibit 1, or did some of the cars remain near Sleepy Lagoon?

A I don't know; I don't remember now.

Q What is that?

A I think some of them stopped there.

Q Did all the cars go down to the houses on the Williams ranch, or some of them stop at Sleepy Lagoon and stay there?

MR. VAN TRESS: It is already asked and answered. She said some of them stayed at the lagoon and I submit the record.

THE COURT: If she did I did not hear it.

MR. SHOEMAKER: I did not hear it.

MISS ZACSEK: Well, let's see what the reporter has.

(Record read.)

MR. SHOEMAKER: Thank you.

MR. BARNES: There is a difference between stopped and


328
stayed, your Honor.

THE COURT: Well, cover that by the next question.

Q BY MR. SHOEMAKER: Did some of the cars that stopped near the Sleepy Lagoon stay there that night on this trip?

MR. VAN TRESS: I object to the form of the question,- the word "stayed" is too general. It might assume they stayed all night.

THE COURT: Overruled.

A I don't know.

Q BY MR. SHOEMAKER: You don't remember?

A No.

Q Did all of the cars in that group that you have referred to proceed down to the houses on the Williams ranch, or did any of them remain behind at the Sleepy Lagoon?

MR. BIRD: If the court please,—

MR. SCHUTZ: If the court please, I think that would call for a conclusion of the witness. If she passed beyond the position of the Sleepy Lagoon she would not be in position to know what happened. I make the objection upon that ground.

MR. SHOEMAKER: I will withdraw the question and simplify it.

MR. BIRD: Even though the question is withdrawn, I would like to make a statement, because I may have to repeat the objection to the next question, if I don't. There are


329
other houses down there on the Williams ranch besides the one shown on Exhibit 1, and which are between the Sleepy Lagoon, - not directly between, of course, - and the houses shown in the circle that might creat an ambiguity, and I would like to ask Mr. Shoemaker to frame that question to get away from that ambiguity, if possible.

Q BY MR. SHOEMAKER: Juanita, after the car was removed from the ditch near the lagoon that night, did any of the cars then drive down the road towards the east?

A I don't remember.

Q Did you drive in that road shown here on Exhibit 1 easterly from the Sleepy Lagoon?

A I don't remember.

Q Did you stay at the Sleepy Lagoon on this second trip?

A No.

Q What is that?

A No.

Q Where did you go to?

A To the house.

Q You went where?

A Over to the Williams ranch.

Q Oh, you went over to the houses on the Williams ranch?

A Yes.

Q All right. Now, about how far were the houses on


330
the Williams ranch to which you went from Sleepy Lagoon?

A How far?

Q Yes.

A I don't know how far it was.

Q As far away as your uncle's house from Sleepy Lagoon?

A No, further from the Sleepy Lagoon.

Q What is that.

A They were far away from the Sleepy Lagoon.

MR. SHOEMAKER: What is the answer, Mr. Kennelly?

(Answer read.

Q BY MR. SHOEMAKER: The buildings to which you drove that night after you left Sleepy Lagoon were farther away than your uncle's house or not?

A Yes.

Q You think they were?

A I think they were.

Q Now, when you drove there that night, after you left Sleepy Lagoon, to those houses were your lights on or off after you left Sleepy Lagoon?

A I don't remember.

THE COURT: I think we will take our recess at this time, Mr. Shoemaker. The jury will keep in mind the admonition, do not talk about the case or form or express any opinion. We will take our recess until 1:45, and everybody in the courtroom remain seated until the jury has left the courtroom.

(Whereupon a recess was taken until 1:45 o'clock p.m. of the same day, Wedensday, October 21, 1942.)


331

WEDNESDAY, OCTOBER 21, 1942; 1:45 O'CLOCK P. M.

THE COURT: All right, Miss Gonzales.

JUANITA GONZALES, recalled:

THE COURT: The record will show all parties present. You may proceed.

MR. SHOEMAKER: May we have the last question and answer before adjournment?

(Record read.)

DIRECT EXAMINATION resumed

BY MR. SHOEMAKER:

Q Juanita, I refer to the night of August 1st, when you and other automobiles drove back to the Williams ranch late at night, as you testified, and you said you stopped for a short time near Sleepy Lagoon where a car went in a ditch. Now, from that point on toward the buildings which are shown there on Exhibit 1, did you see various other automobiles keep on driving later on toward those houses?

A Going toward the houses?

Q What is your answer?

A Did you say going towards the houses?

Q Yes, going towards the buildings on the Williams ranch?

A Yes, sir.


332

Q How many of the automobiles did you see going on toward those buildings after you had stopped a while at the Sleepy Lagoon?

A I don't remember.

Q Well, give me your best memory.

MISS ZACSEK: Please, will you take that thing up to your mouth — there you are — a little closer, that is it.

A I don't know.

MR. SHOEMAKER: Pardon me just a minute, Juanita. Maybe I can straighten this out. How is that?

A O.K.

Q Would you say as many as ten automobiles continued on past Sleepy Lagoon along the traveled road shown on Exhibit 1 towards the buildings?

A I don't know how many cars were going towards the houses.

MR. SHOEMAKER: I think, your Honor. I would like to refer now to page 10 — I will ask a few more questions first.

Q As you went towards those buildings late that night, shown on Exhibit 1, those houses, where did you finally stop?

A We stopped up by one of the houses, but I don't know which one.

Q How close to a house did you get before you stopped? As close as across this courtroom?

A I don't remember.


333

Q As close as from where you sit to the rail along here?

A Before we stopped at the house?

Q How close to the houses did you get before you stopped?

A I don't know.

Q Were you able to see the lights in the houses or in a house?

A Well, in the house, I think there was a house that had the party in.

Q Was there a party going on in a house where you stopped?

A No.

Q Could you see lights?

A Yes.

Q Could you hear music?

A No.

Q Was a dance going on in a house that you could see?

A No, I didn't see any dance going on.

Q Did you see any signs of a party at the house where you stopped?

A I don't remember if I did.

Q What is that?

A I don't remember.

Q Did all the cars that went along that traveled road from Sleepy Lagoon toward those houses stop in the same place near the houses?


334

A I guess they did; I am not so sure whether they did or not.

Q Is it your memory that they did?

A I don't know whether they did.

Q What is your best memory?

A I think they did.

Q Now, do you understand my question as to the automobiles that went on from Sleepy Lagoon towards the houses shown on Exhibit 1 and finally came to a stop, how near were they to your car where you stopped, pretty close or far away?

A They were pretty close.

Q Pretty close. Did they all stoo pretty close to your car?

A Yes, sir.

Q Is that right?

A Some of them did.

Q Did any of them turn around and head out before they came to a stop?

A I don't know.

Q You don't know?

A No.

Q Which direction was your car pointed in when it stopped?

A Towards the party.

Q Towards the party?


335

A Yes.

Q You refer to a party, Juanita; what kind of a party was it, as far as you can tell?

MR. VAN TRESS: I object to that as calling for a conclusion, conjecture and hearsay.

THE COURT: Overruled.

MR. SHOEMAKER: Read the question, Mr. Reporter.

(Question read.)

A I don't know.

Q BY MR. SHOEMAKER: Could you describe it for us in any way?

A No.

Q Did you see people there in the house?

A No, I couldn't see the people.

Q Why did you call it a party?

A Because they said they were going to a party.

MR. SHOEMAKER: What was the answer, Mr. Perry?

(Answer read.)

Q Who said it?

A I don't know who said it; I just hear it.

Q Did somebody in your car say that?

A No.

Q Did somebody around the pool room say that?

A Yes, around the pool room.

Q Do you remember who it was that said that down at the pool room before you started?


336

A No.

Q Was it one of the boys that said it?

A I think it was one of the boys; I don't know which one.

Q Now, can you tell us, Juanita, how many cars, approximately, stopped near the houses, pretty close to you, as you stated, pretty close to where you stopped?

A I don't know.

Q Calling your attention now to page 10 of the transcript of your testimony before the Grand Jury in this matter, at line 1, at the top of the page: "Q—about what time was it when you arrived at the dance, when you went back there?

"A—I think around 12:00 o'clock.

"Q—Wasn't it later than that?

"A—I am not so sure.

"Q—Wasn't it along about 1:00 o'clock or a little later on Sunday morning?

"A—Around there, because I got home at 2:00 o'clock.

"Q—It was around 1:00 o'clock in the morning?

"A—Yes, sir.

"Q—How many cars drove up to the place where the dance was being held?

"A—I did not get to count them.

"Q—How many would you say?

"A—I saw around ten.

"Q—Approximately ten cars?


337

"A—Yes, sir.

"Q—Did each one of these cars have a number of Mexicans in it?

"A—A bunch of Mexicans." Did you so testify?

A Yes.

MR. BIRD: If the court please, the last question and answer I think should be eliminated from Mr. Shoemaker's question, because they go beyond anything that he has asked.

MR. SHOEMAKER: In order to avoid an objection, I will withdraw it, your Honor.

THE COURT: All right.

Q BY MR. SHOEMAKER: Did you so testify, Juanita?

A Yes.

Q Was that true?

A Yes.

Q When those cars stopped there near the houses, as you have stated in this testimony were about ten in number, did you see the people in those cars?

A Yes.

Q What kind of people were they?

A Mexican people.

Q Do you mean they were boys, girls, old men or what?

A Boys.

Q Mexican boys?

A Yes.

Q Did you see them get out of their cars?


338

A I don't remember.

Q Well, you saw Mexican boys in these ten cars or so. Now, what did they do when they stopped near those houses?

A I think they got out; I am not so sure.

Q You were looking at them, were you not?

A No.

Q Where were you looking?

A I was looking toward — I was talking to my sister.

Q Did you see various boys get out of various automobiles?

A Yes, I saw the boys get out of the cars.

Q Did you see what direction they went?

A Towards the house.

Q They went towards the house where the lights were?

A Yes.

Q Did you hear the sound of breaking glass?

MR. BIRD: I object to that as leading and suggestive, in that the witness has not shown that she would not cooperate by answering the questions as to that.

THE COURT: I will sustain the objection as assuming something not in evidence.

Q BY MR. SHOEMAKER: After you saw the boys start toward the house where the lights were, did you hear some noises?

A I don't remember.

Q Did you hear any noise at all. Juanita?


339

A I don't remember.

Q Did you hear any screaming?

A I don't remember.

Q Did you hear any yelling?

A I still don't remember.

Q Did you hear the sound of breaking glass?

MR. COVIELLO: If your Honor please, I submit that that is leading and suggestive.

THE COURT: No.

MR. COVIELLO: I think he can ask the witness what she heard or what she saw.

THE COURT: No, I think you are falling into the same difficulty we ran into this morning. A leading question is one that suggests the answer. In other words, when you ask a person whether he saw a particular thing, the answer may be yes or no; there is no indication what the answer will be until we get the answer from the witness. Overruled.

MR. SHOEMAKER: Will you read the question, Mr. Perry?

(Question read.)

Q You may answer.

A I said I don't remember.

Q What is that?

A I don't remember.

Q Did you hear the sound of rifle shots?

A No.

Q How long were the boys gone from the cars?


340

A I don't know.

Q Did they come back after a while?

A Yes.

Q What is that?

A Yes.

Q And then what did they do when they came back?

A They got in the cars.

Q What is that?

A They got in the cars.

Q They got in the cars. Then, what did they do?

A We came back.

Q Started back. Where did they go?

A I don't remember.

Q Did you come along with them, all the cars together?

A I don't remember.

Q Well, did you go any place after you left the Williams ranch that night?

A I went to my — we went home.

Q Did you go back to the pool room?

A No, not that I remember.

Q Who did you come back with?


341

A I think the same boys we went with.

Q The same ones you went out with?

A Yes.

Q Was anyone else in your car on the way back?

A I don't remember.

Q Did you drive straight back from the houses that night and go back to your home?

A I don't remember.

Q You don't remember?

A No.

Q What time did you get home, about 2 o'clock in the morning?

A Yes.

Q Sunday morning, August 2, 1942?

A Yes.

Q And you and your sister Josephine got home together in the same car?

A Yes.

Q Did you stop at all at the pool hall on the way back home?

A I don't remember.

Q Now, Juanita, when the boys got out of the cars at the houses on the Williams ranch, shown on Exhibit 1, state whether or not you saw them or any of them break any of the board or pickets off of the fence around the houses?

A I don't remember if I did.


342

Q You don't remember that?

A No.

Q Did you see any of the boys who got out of those cars break the windshields or any of the glass in any cars that were parked near that house? What is your answer?

A I don't think I did; I don't remember if I did or not.

Q You don't remember?

A No.

MR. SCHUTZ: If the court please, may I again ask the court to suggest to counsel the repetition of the answer of the witness is at least unnecessary.

THE COURT: I think we should endeavor to avoid it. It is a bad habit we get, Mr. Shoemaker.

MR. SHOEMAKER: Well, your Honor, it is simply an attempt to give the witness a chance to realize her own statement, and possibly to obtain an answer. The witness is saying, "I don't remember" to all questions, virtually.

THE COURT: Well, I still think you should not do it.

MR. SHOEMAKER: It may be something that we should not do, but it is almost a natural reaction to her answer.

Q Did you see any of the boys who got out of the cars near the houses shown on Exhibit 1 chasing other people near the house that had lights in it?

MR. COVIELLO: If your Honor please, I want to object here again on the ground that the district attorney is


343
leading the witness. It is assuming something not in evidence as yet. I have not heard this witness testify yet —

THE COURT: I think the latter objection is good; the leading question is not good. In other words, the question assumes there was somebody chasing somebody.

Q BY MR. SHOEMAKER: Did you see anybody chasing anybody near the house on the Williams ranch?

A I saw some boys running towards the house or back of the house.

Q Some boys, Were those boys that had gotten out of the cars that had stopped?

A I don't know if they were.

Q Did you see any boys running after other boys?

A There was a lot of boys running.

Q What is that?

A There was a lot of boys running in back of the house.

Q There was somebody else running back of the house?

MISS ZACSEK: May I have the witness' answer read by the reporter, please.

(Answer read.)

MISS ZACSEK: Thank you.

Q BY MR. SHOEMAKER: Were they being chased by anybody else?

MR. VAN TRESS: That would be calling for a conclusion.

THE COURT: I think it would be. Sustained.


344

MR. SHOEMAKER: Well, if the word "chase" calls for a conclusion I will change it, and ask you if any boys were running after other boys back of the house.

MR. VAN TRESS: That would be a conclusion.

THE COURT: Overruled.

MR. SHOEMAKER: You may answer.

A I don't remember.

Q I now call your attention to page 11 of the transcript of your testimony before the Grand Jury in this case, Juanita, and will show you the record, and commence to read at line 4 on that page:

"Q—When you got to the place where the dance was being held, what did the boys in your car do?

"A—They got out, and called the boys to get out and go and fight, and they off.

"Q—You saw about ten cars altogether?

"A—Yes.

"Q—And the boys got out of the ten cars?

"A—Yes.

"Q—Were there some girls along with them?

"A—Yes.

"Q—About how many girls did you see?

"A—I am not so sure how many I saw.

"Q—Do you know any of them by name?

"A—I saw Frances Silva in there.

"A—That is a girl?


345

"A—Yes. She is in jail" —

MR. SCHUTZ: If the court please, at this point I will ask the court to strike from the record all the questions and answers beginning from line 12, page 11, to the point where counsel is now reading, on the ground —

MR. SHOEMAKER: In other words, — maybe I will agree with you, Mr. Schutz.

MR. SCHUTZ: (Continuing) — that none of the questions and answers therein stated to the witness tend to refresh her recollection as to anything she has heretofore testified to.

MR. SHOEMAKER: Counsel is referring to the question commencing line 12, apparently, where the question is: "Were there some girls along with them?" We are willing to leave that out at this time.

THE COURT: If you are willing to leave it out it solves my problem. However, I think it would be permissible to use, in view of the fact the witness in her testimony where the transfript referred to, referred only to boys.

MR. SHOEMAKER: Then, your Honor, I ask permission to leave it in.

MR. VAN TRESS: If your Honor please, the question was put by counsel, did you see the boys chasing one another.

MR. SHOEMAKER: I asked her who got out of the car.

THE COURT: He asked her who got out of the car, and


346
she said the boys got out of the car but before the Grand Jury she said the boys and girls got out of the car. There is some variance there.

MR. SCHUTZ: I stand corrected. I recall that bit of testimony now, and I beg the court's indulgence.

MISS ZACSEK: We might add at this point, if we are to be exact about it, the question was, "Were there some girls along with them?" and not did the girls get out of the car.

MR. SHOEMAKER: I asked her who was in the car and she said Mexican boys.

MISS ZACSEK: That is right.

THE COURT: I think there is sufficient predicate here now.


347

Q BY MR. SHOEMAKER: Taking up now where I was interrupted, line 17: "A—I saw Frances Silva in there.

"Q—That is a girl?

"A—Yes. She is in jail right now; and I saw Bertha Aguilar.

"Q—What other girls?

"A—That is all.

"Q—How about Lorena Encinas?

"A—I did not see her.

"Q—How about Lupe Ynostroza?

"A—No.

"Q—Becky Nunez?

"A—No.

"Q—Ann Kaluskin?

"A—I don't know her.

"Q—After the boys got out of the cars what happened next?

"A—They went and broke some stakes off of the fence, and they went to that house, and they went after the boys.

"Q—Was that the place where the dance was going on?

"A—Yes.

"Q—You say the boys got out of the cars and broke some stakes off of the fence?

"A—Yes." Did you so testify?

A Yes, sir.

Q Was that testimony so given true according to your


348
memory at the time you gave it, Juanita?

A Yes.

Q Now, I call your attention to the same page where I ceased to read, page 12 at line 17: "Q—After they broke stakes off the fence, did they go to the place where the dance was being held?

"A—Yes, and they broke all the windshields of the cars there at the house.

"Q—Were they cars belonging to people at the dance?

"A—Yes."

MISS ZACSEK: Objected to as calling for a conclusion of the witness, your Honor.

THE COURT: I think the latter question and answer might as well be omitted.

Q BY MR. SHOEMAKER: "Did they go to the place where the dance was being held?

"A—They were running around" —

MISS ZACSEK: Just a moment.

MR. SHOEMAKER: May I finish, please, before you interrupt?

MISS ZACSEK: Well, as an attorney I would like that perhaps you would see that the next question would not be permissible in any event. That is my opinion, Mr. Shoemaker.

MR. SHOEMAKER: Well, it is part of her testimony, and we would like —

THE COURT: Suppose you let the court rule upon it?


349

MISS ZACSEK: There is a question, and I desire to interpose an objection to it before it is read, if I may, your Honor.

THE COURT: Don't you think it is better to wait for the question to be asked before you object to it?

MISS ZACSEK: I thought he did finish it, —

THE COURT: He was reading from the transcript and he had not finished the question.

Q BY MR. SHOEMAKER: "Q—Did they then go to the place where the dance was being held?

"A—They were" —

MISS ZACSEK: Before the word "answer" I would like to interpose an objection.

THE COURT: I am asking you not to make an objection until the question has been asked. You are interrupting Mr. Shoemaker in the middle of the question. All right, Mr. Shoemaker.

Q BY MR. SHOEMAKER: "A—They were running around a lot looking for the other boys." Did you so testify?

A Yes.

MR. COVIELLO: If the court please, —

Q BY MR. SHOEMAKER: Was that testimony as so given, correct?

A Yes.

MR. COVIELLO: May I make this observation, if your Honor please? It probably may be that I did not hear this witness,


350
but evidently Mr. Shoemaker is impeaching his own witness.

THE COURT: No, he is not impeaching his own witness. We had that all argued out this morning. We are proceeding under the McFarland case.

MR. COVIELLO: The girl was not asked to relate what she saw or what happened out there. Now, he is —

THE COURT: I am sorry.

MR. COVIELLO: (Continuing) — he is reading the testimoney.

THE COURT: You evidently did not hear what was said this morning in the discussion we had. I tried to make it clear. I am sorry I did not succeed.

MR. VAN TRESS: If the court please, that portion which was read I ask be stricken, "They were running around a lot looking for the other boys," as a conclusion.

THE COURT: The motion will be denied.

MR. VAN TRESS: And also the question, "Were they cars belonging to people at the dance?"

THE COURT: That was eliminated from the question. I am afraid you did not hear that.

MISS ZACSEK: I did not hear it either, your Honor. It was read into the record, was it not?

THE COURT: I eliminated it.

MISS ZACSEK: Oh, thank you very much.

Q BY MR. SHOEMAKER: Yesterday, Juanita, at page 203 of the transcript of this trial, at line 9, you stated,


351
"We call it the 38th Street gang," and then there was a question, "What was it you call the 38th Street gang?" and your answer, "The gang, that is all." Juanita, do you know where that gang met from time to time?

A No.

MR. VAN TRESS: Just a minute, now. I assume —

THE COURT: That is assuming something not in evidence. Sustained on that ground.

Q BY MR. SHOEMAKER: Did the gang have any place of meeting?

MR. VAN TRESS: I object to the form of the question as assuming something not in evidence.

THE COURT: Assuming what?

MR. SCHUTZ: That the gang had a place to meet.

THE COURT: No, he is asking whether it had a place of meeting.

MR. VAN TRESS: There is no proper foundation laid.


352

THE COURT: Mr. Van Tress, the objection was to the question that followed that.

MR. BIRD: I think the question might be objectionable, your Honor, as opening the door to hearsay. It might be reframed to obviate that objection.

THE COURT: I am wondering whether counsel heard the question that was asked. May we have the last question, Mr. Reporter?

(Question read.)

MR. BIRD: My objection still stands, your Honor.

MR. VAN TRESS: I object to that as there has been no foundation laid to show that this witness was a member of any organization or attended any meetings; it would be a conclusion of the witness and not the best evidence.

THE COURT: I have attended meetings of organizations I did not belong to. Overruled.

Q BY MR. SHOEMAKER: Do you understand the question?

A No.

MR. SHOEMAKER: Will you read it. Mr. Perry, please?

(Question read.)

A I don't know.

Q BY MR. SHOEMAKER: State whether or not you know that the gang mentioned in your testimony, the 38th Street gang, met at or near the pool room that you have mentioned in your testimony.

MR. BIRD: Do you mean —


353

THE COURT: Objection sustained. It assumes it so met.

Q BY MR. SHOEMAKER: Do you know whether the gang ever met at the pool hall?

MR. VAN TRESS: I object to that as hearsay.

THE COURT: Overruled.

A I don't know.

Q BY MR. SHOEMAKER: What is that?

A I don't know.

Q I asked you yesterday on page 202, at line 10: "Are you familiar with the locality at the corner of Vernon Avenue and Long Beach Avenue in the City of Los Angeles?" Your answer: "You mean do I hang around with them?" And then the next question: "I asked you if you are familiar with that neighborhood? A—Yes, sir. Q—What is your answer? A—Yes. Q—Have you been down there frequently? A—Yes. Q—Have you been there in company with other people? A—Yes." Then at line 6: "Q—Have you given any name to that locality? A—No. Q—What do you call that place?"

MR. SCHUTZ: If the court please. I ask the court to inquire of counsel what his purpose is in this interrogation. It would appear to me —

THE COURT: You might wait for the question to be finished.

MR. SCHUTZ: I beg your pardon. I will wait until the


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question is finished.

Q BY MR. SHOEMAKER: "Q—What do you call that place?

"A—We call it the 38th Street gang." Now, what place did you mean in your testimony you called the 38th Street gang at that corner of Vernon and Long Beach?

A I don't know.

Q Do you mean the pool hall?

MR. SCHUTZ: At this time, if the court please, I assume counsel has now finished his interrogation. It appears, at least, to me that counsel is obviously trying to have the witness interpret an answer heretofore given in a part of the record of this case. In addition to that, I feel counsel is trying to impeach his own witness.

THE COURT: I do not think there is any impeachment at all. I think it is perfectly proper to ask the witness the question as to what she or he meant by a particular answer.

MR. SCHUTZ: I assume the answer having been given, it would be within the province of the jury to determine that, if the court please.

THE COURT: No, but the witness can explain the answer. Suppose, just for the purpose of illustration, I said I used to meat down there with the gang. Wouldn't it be proper to ask what I meant by the word "gang"? I don't think either side should be bound by somebody else's


355
interpretation of the word.

MR. SCHUTZ: No, but on the other hand, —

THE COURT: The question is, what did the witness mean by the particular words used? A witness can always explain what he meant by the particular words used.

MR. SCHUTZ: What I had in mind, if the court please, the answer to one of the questions which counsel just finished reading. "What do you call that place? A—We call it the 38th Street gang." He seeks to have that answer interpreted.

THE COURT: I think it requires interpretation.

MR. SCHUTZ: I would be constrained to agree with him. However, the witness clearly did not answer the question, and I suppose a motion to strike as not being responsive should have been made at the time.

THE COURT: No, I think it was to a degree responsive, but I think it is somewhat ambiguous, and the answer ought to be explained.

MR. SCHUTZ: Perhaps I will have to agree with court and counsel.

THE COURT: It may be possible — I don't know — you might call a location a gang.

MR. SCHUTZ: That would sound awfully silly to me, your Honor.

THE COURT: I know, but people sometimes do very peculiar things, or call things by peculiar names.


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Proceed.

MR. SHOEMAKER: I better reframe the question, or the reporter can pick it up. Will you read it, Mr. Reporter, please?

(Question read.)


357

Q What was your answer, Juanita?

THE COURT: I am wondering whether the witness has not got lost a little bit in all our discussion.

MISS ZACSEK: I know I am.

Q BY MR. SHOEMAKER: Very well, Juanita, you stated in your testimony, as I called your attention to, on page 203 of the record, if you called the place at the corner of Vernon and Long Beach Avenue the 38th Street gang. Now, what place was there there that you meant to refer to by that answer?

MR. SCHUTZ: I think, if the court please,—

Q BY MR. SHOEMAKER: What is your answer?

A I don't know.

MR. SCHUTZ: I withdraw my objection. Go ahead.

Q BY MR. SHOEMAKER: You say you do not know, Juanita?

A Yes.

Q I cannot hear you.

A I said, yes. Yes, I don't know.

Q Was there any other place at the corner mentioned except the pool hall that you meant to refer to by the 38th Street gang?

MR. VAN TRESS: I object to the form of the question as assuming —

THE COURT: I will sustain the objection to that. If you read page 203 of the transcript, the answer whether logical or illogical, indicated what the witness intended to


358
state amounts to this: That the locality we call the 38th Street gang.

Q BY MR. SHOEMAKER: Now, to your knowledge, Juanita, did the 38th Street gang have a headquarters or hangout at that corner any place?

MR. VAN TRESS: I object to that as no proper foundation, in that there is nothing to show that she ever associated with them or ever gained any knowledge —

MR. SCHUTZ: That they had a headquarters or hangout at that locality.

THE COURT: I think it is subject to objection as to the form of the question.

Q BY MR. SHOEMAKER: Do you know of any place at that corner or near that corner which was used by the 38th Street gang as a meeting place?

MR. BIRD: I am going to object to that. There have been a number of questions here calling for this witness' knowledge, which knowledge may have been obtained by hearsay or direct observation. The way the question is put I do not know on what the answer will be based. I would like to have counsel propound a question as to whether any knowlege which the witness may have come from hearsay or general reputation in the neighborhood.

THE COURT: The witness testified yesterday that she had known about this so-called 38th Street gang for a period of somewhere between six months and a year. I think it would


359
be proper to ask her whether she knew of their having any particular place of meeting.

THE WITNESS: No.

Q BY MR. SHOEMAKER: You were asked, Juanita, at the bottom of page 203 — strike that out. At line 18 on page 203 — you were asked how long you had been acquainted with the gang of boys and girls, and you stated, "I just went out with them that night."

"Q—What night was that?

"A—Saturday.

"Q—The 1st day of August, 1942?

"A—Yes, sir." Now, let me ask you this question:

Do you mean by going out that night was when you went out to the Williams ranch?

MR. SCHUTZ: I think the answer speaks for itself, if your Honor please.

THE COURT: I think so. Objection sustained.

MR. SHOEMAKER: I beg your pardon?

THE COURT: Objection sustained.

Q BY MR. SHOEMAKER: And then when you went out to the Williams ranch that night about midnight, when you went near the houses, state whether or not you were with a group of people that you have called the 38th Street gang.

MR. RAVIN: I object to the question, if your Honor please, as there has not been any showing a group of people was known as a gang. She referred to a place.


360

MR. SHOEMAKER: She referred to a gang of boys and girls.

THE COURT: As far as page 203 is concerned, if you will read the following pages they show the word "gang" and also refer to a group of people. The bottom of page 206, "Q—Had you known about the 38th Street gang as long as six months prior to August 1st? A—Yes.

MR. SCHUTZ: However, there is nothing in this record, if the court please, as far as I am able to read the record, to show that any of the persons purporting to be the 38th Street gang are any of those boys that she was with that night or any of these defendants. On that ground I think the question is objectionable.

THE COURT: I think it is admissible in view of the opening statement. Objection overruled.

MR. SHOEMAKER: Read the question, Mr. Perry, please.

(Question read.)

MR. VAN TRESS: I object to that as no proper foundation, in this: Nobody has been identified as the group that went out there. This witness has testified she does not know what people were in other automobiles, that there were some eight or ten cars, and that she only knows the ones that she was with. She is now being asked to identify a group of people that she could not or did not see that night.


361

THE COURT: She also testified to seeing a group of people and seeing these people do certain things. She might not know their names, but still know their identities as people belonging to a certain organization. If we see a parade go down the street we know lerfectly well they belong to the 165th Infantry, but we do not know them personally.

MR. SCHUTZ: In support of counsel's position, if the court please, it has not been shown that the component members of that group, in addition to the persons in her car, were in truth and in fact members of the 38th Street gang. I think the question is still objectionable. In other words, the record is barren of any such showing. Notwithstanding the opening statement, which is not evidence in the case, it has not been shown even as to these people included in her car, the passengers in that car, were members of the 38th Street gang.

THE COURT: It is not necessary the entire case be proven by one witness.

MR. SCHUTZ: I appreciate that.

THE COURT: She is asked with regard to her relationship between the persons going to the Williams ranch and the 38th Street gang.

MR. BIRD: That is not quite accurate. Persons she called the 38th Street gang.

THE COURT: Yes.


362

MR. SCHUTZ: We have no way of knowing, from this record to date, who the 38th Street gang were, if any.

THE COURT: I think you have to take into consideration that you cannot pick out one particular part of a transcript. She was asked this question: "How long have you been acquainted with that gang of boys and girls? A—I just went out with them that night." We already have in evidence that she went out with a group of people. There is nothing to indicate that she went out with anybody else. I think the inference, at least, is she was referring to the 38th Street gang as the people she went out with to the Williams ranch.

MR. SCHUTZ: Wouldn't it seem to the court that would be for the jury to determine, that fact?

THE COURT: I am not deterining it. I say it is an inference which might be drawn. You may proceed, Mr. Shoemaker. I think you better reframe the question and start over again.

MR. SHOEMAKER: I will ask some other question.

Q Do you know Victor Segoba?

A Yes.

Q Do you see him in the courtroom?

A Yes.

MISS ZACSEK: Stand up, Victor.

(Defendant Segoba does as requested.)

Q BY MR. SHOEMAKER: He is standing up now?


363

A Yes.

Q Was he there that night, at the building on the Williams ranch where you saw the boys get out of the cars?

A I don't know.

Q What is that?

A I don't know.

Q You don't know?

A No.

Q Did you see him there?

A I don't remember.

Q You don't remember?

A No.

Q Did you see the defendant Victor Thompson there at the house on the Williams ranch?

A I don't remember.

Q Do you know him?

A No.

Q Would you recognize him if you saw him?

MR. BIRD: Pardon me. I would suggest that you ask the witness as to some name he was more commonly known by.

Q BY MR. SHOEMAKER: Bobby Lavine. Do you know him under the name of Bobby Lavine? What is your answer?

A I don't know.

Q Can you look over there and see him some place, Juanita?

MR. BIRD: Stand up, Victor, will you, please?


364

(Defendant Victor Thompson does as requested.)

Q BY MR. SHOEMAKER: Do you know that boy standing up?

A I don't know, but I seen him.

Q You know him?

A I don't know him, but I have seen him before.

Q Do you know him by any name?

A No, I don't.

Q Don't you know him by the name of Bobby Lavine?

A Yes.

Q You do?

A Yes.

Q Was he there that night?

A I don't know.

Q Did you see Jose Ruiz there that night?

A Yes.

MR. SHOEMAKER: Will you stand up, Jose Ruiz?

(Defendant Jose Ruiz does as requested.)

Q Do you see him over there standing up?

A Yes.

Q You saw him there that night at the Williams ranch?

A Yes.

MR. SCHUTZ: That has been asked and answered, if the court please.

THE COURT: Yes, it has been asked and answered.

Q BY MR. SHOEMAKER: Did you see Henry Leyvas there that night?


365

A I don't remember.

Q Do you know Henry Leyvas?

A No.

Q What is that?

A I don't know him.

Q Do you see him over there among the group of defendants?

MISS ZACSEK: Stand up, Henry, please.

(Defendant Leyvas does as requested.)

A Yes.

Q BY MR. SHOEMAKER: Is that Henry Leyvas?

A Yes.

Q Did you see him at the Williams ranch that night?

MR. SCHUTZ: Her answer was, "I don't remember."

MR. SHOEMAKER: Let her answer the question.

A I don't remember.

Q BY MR. SHOEMAKER: Did you see Rubin Penia there that night?

A I don't remember.

Q Do you know him?

A Yes.

MR. SHOEMAKER: Will you stand up, please?

MR. VAN TRESS: Stand up, Rubin.

(Defendant Rubin Penia standing.)

Q BY MR. SHOEMAKER: Is that Rubin Penia?

A Yes.


366

Q Now, I call your attention to the official transcript of the Coroner's inquest in this case, in reference to the death of Jose Ruis — I mean to say Jose Diaz.

MISS ZACSEK: May we see that for a moment, please, Mr. Shoemaker,- at least I would like to see it. (Receiving transcript.) Thank you. Anyone else want to see this?

MR. VAN TRESS: No.

MISS SACSEK: Thank you. May we have that page, please, Mr. Shoemaker, and line?

MR. SHOEMAKER: Wait until I make the record, please.

MISS SACSEK: Yes.

Q BY MR. SHOEMAKER: I call your attention to the transcript in the matter of the inquest upon the body of Jose G. Diaz, deceased, before Frank A. Nance, Coroner, which occurred on the 11th day of August, 1942. Do you recall testifying as a witness at that inquest. Juanita?

A Yes, sir.

Q You did. You were sworn to tell the truth in that inquest, weren't you?

A Yes.

Q Now, I call your attention to page 45 of the official record of that inquest, where you were testifying —

MR. SCHUTZ: Wait a minute. This is for —

MR. COVIELLO: Are you going to read from that, Mr. Shoemaker?


367

MR. SHOEMAKER: May I just go on without being interrupted here?

MR. COVIELLO: If you do not mind an interruption at this time, if your Honor please, on behalf of Manuel Delgado, assuming Mr. Shoemaker, the district attorney, has a certified or authentic copy of the transcript of the testimony given at the Coroner's inquest, and assuming that this witness testified under oath at that hearing, we would have no objection, so far as Delgado is concerned, and myself, to have Mr. Shoemaker read any portions of the testimony that he calls her attention to without questioning the witness on it.

MR. SCHUTZ: If the court please, all I wanted to determine here was whether counsel was proceeding on the same theory as he did relative to the Grand Jury transcript, to wit, —

MR. SHOEMAKER: Exactly.

MR. SCHUTZ: Refreshing the recollection of the witness.

MR. BIRD: Under the McFarland case?

MR. SCHUTZ: Under the case outlined by the court this morning.

MISS SACSEK: I would like to know that, too, especially in view of having seen the transcript here of her testimony as to the testimony concerning Henry Leyvas, and then considering what the testimony before the Grand Jury shows on that particular point on page 15 of the transcript, so


368
in view of this —

THE COURT: If I may make a suggestion, if you will listen to the question you can tell what theory he is proceeding on, but you interrupt in the middle of a question and then we don't get anywhere; we have a lot of discussion and then have to start all over again.

MR. SHOEMAKER: And we stand here and wait for these interruptions to cease. May I continue with my question?

THE COURT: Yes.

MISS ZACSEK: Yes.

THE COURT: May I suggest to counsel to wait until the question has been asked before making an objection?

MISS ZACSEK: All right.

THE COURT: It is absolutely impossible for any person to rule on the propriety of a question until the question has been asked. At least, I am not that psychic that I can do it without hearing a question.

Q BY MR. SHOEMAKER: Juanita, I show you here in front of you the official transcript of the testimony given at the inquest, and call your attention to line 16, page 45, where you were testifying: "Q—Where did you first see Henry Leyvas on this evening?

"A—I think he was in the car by the pool hall, in a green car, V-8.

"Q—And you saw that car go out to the ranch?

"A—Yes." Did you so testify?


369

A Yes.

Q Was that true?

A Yes.

MR. BIRD: Pardon me.

MISS ZACSEK: Have you concluded, Mr. Shoemaker, with this question?

MR. BIRD: Pardon me.

MR. SHOEMAKER: The question has been answered.

MR. BIRD: I want to make an objection to the last question and the answer, where the witness was inquired of, is that true, and the answer "Yes," on the ground it is ambiguous whether it means it is true she testified, or whether the testimony is true. I think that ambiguity should be cleared up before the question and answer is allowed to stand in the record, your Honor.

MR. SHOEMAKER: I will clear it up right now.

Q Was the testimony you gave at the Coroner's inquest true testimony.

THE WITNESS: You mean it was true, what I said?

THE COURT: Yes.

MR. SHOEMAKER: Yes.

A Yes.

MISS ZACSEK: At this point, then, I arise to complete the objection in this version, your Honor, that counsel is now reading a portion of this witness' testimony in order to refresh her recollection, or in order that she may clear


370
up any ambiguity and explain any difference between her present testimony and the testimony given before that tribunal. In that connection I now ask, in order that we may get fairly before the jury this witness' testimony on that identical point, as it was given by her in front of the Grand Jury of the County of Los Angeles, as it appears on page 14, lines 3 to 7, inclusive, and then permit her to explain, —

MR. SHOEMAKER: In that connection —

MISS ZACSEK: Pardon me. — to explain or clear up any ambiguity, if any, and explain her answers.

THE COURT: You may proceed, Mr. Shoemaker.

MR. SHOEMAKER: That, if the court please, I submit, is a matter of cross-examination.

THE COURT: You may proceed. I think the proceeding is permissible under either theory, in the face of the record, in any event.

MR. SHOEMAKER: Yes.

Q Did you see Joe Carpio at the Williams ranch that night?

A I don't remember.

Q You know, don't you?

A Yes.

Q Do you see him over here in the courtroom?

A Yes.

MR. SHOEMAKER: Will you stand up, please?


371

(Defendant Joe Sarpio standing.)

Q BY MR. SHOEMAKER: Is that Joe Carpio?

A Yes.

Q Do you know Eugene Carpio?

A I don't know him, but I have seen him.

Q Did you see him at the Williams ranch that night?

A I don't remember.

MR. SHOEMAKER: Will you stand up, Eugene Carpio?

(Defendant Eugene Carpio standing.)

Q BY MR. SHOEMAKER: Do you know him?

A I have seen him, I say, but I don't —

Q Is that Eugene Carpio?

A Yes.

Q Thank you.

THE COURT: I don't know that we all got that previous answer. She said, "I have seen him," and she dropped her voice. Will you read it, Mr. Kennelly?

(Answer read.)

Q BY MR. SHOEMAKER: Did you see him at the Williams ranch?

A I don't remember.

Q Did you see Robert Telles there that night?

MR. BIRD: What was the answer? I couldn't hear it over there.

THE REPORTER: I have not heard an answer yet.

Q BY MR. SHOEMAKER: What is your answer?


372

A I don't remember.

Q Do you know Robert Telles?

A No.

Q Do you know him by sight? Will you stand up. Robert Telles?

(Defendant Robert Telles standing.)

Q BY MR. SHOEMAKER: Do you know that boy?

A No.

Q Have you ever seen him before?

A I have seen him in these days I have been coming over here.

Q Now, let me ask you, Juanita, when you yesterday referred to the 38th Street gang, state whether or not you knew any of the members of it.

MR. VAN TRESS: We object to the form of the question as asked as assuming it has members.

THE COURT: Overruled.

MISS ZACSEK: On the further ground it assumes that there exists such an organization.

THE COURT: Overruled.

MR. BIRD: I am going to make this objection, your Honor: I think if the question is reframed to say the persons whom you knew to be members of it, it would obviate my objection.

MISS ZACSEK: Mine also.

MR. SHOEMAKER: Well, that is what I mean.


373

THE COURT: The mere fact the witness has previously given testimony along this line yesterday, I think the question is proper.

MR. SHOEMAKER: Now, read the question, Mr. Kennelly, please.

(Question read.)

A Of the boys or girls?

Q BY MR. SHOEMAKER: The boys and girls both.

A Of the girls I know Bertha Aguilar.

Q What did you say?

A Of the girls I say I know Bertha Aguilar.

Q Bertha Aguilar. Who else among the girls? Annie Kalustian?

A I think she is in it; I don't know.

Q Betty Nunez?

A Yes.

Q Dora Barrios?

A Yes.

Q Frances Silva?

A I don't know if she is in it.

Q Delia Purra?

A I don't know.

Q What boys, if you know, in the group that you called the 38th Street gang?

A Joe Ruiz, I think is his last name.

Q Jose Ruiz?


374

MR. VAN TRESS: May we have the full answer and we will object to counsel repeating the answer?

MR. BARNES: It was said so low it is almost impossible for us to hear, and I think counsel is merely —

THE COURT: I think the repetition is sometimes due to the fact it is so difficult to hear what the witness says and the apparent repetition is in the form of and with the inflection of a question. I don't know what do do with this young lady. I have told her repeatedly to talk into that microphone, but she has simply kept her head turned away from it. Even Miss Zacsek, with all of her persuasive powers, has not been able to do it, and in the presence of an expert with children like Miss Sacsek, I would not attempt to try it.

(Answer read.)

MR. SHOEMAKER: Will you, for my benefit, read that question and answer, Mr. Kennelly, please.

(Question and answer read.)

Q BY MR. SHOEMAKER: Known either as Joe or Jose; is that right?

MR. VAN TRESS: I object to the form of the question as assuming something not in evidence.

MR. SHOEMAKER: I withdraw the question.

Q Do you know him as Jose Ruiz or Joe Ruiz?

A I know him by the name of Joe.

Q All right. What other boys do you know in that


375
group?

A I don't know.

Q How about Jack Melendez?

MR. SCHUTZ: We object to counsel leading the witness.

THE COURT: Overruled.

MR. VAN TRESS: This witness, if she knows who the members are, she should be able to name them.

Q BY MR. SHOEMAKER: what is your answer, Juanita?

A I don't know if he is in it; I don't hang around with the 38th Street gang.

Q How about John Matuz?

A I don't know.

Q Are you telling us then you don't know any of the boys in the 38th Street gang?

MR. SCHUTZ: We submit, your Honor, that is argumentative.

THE COURT: Sustained.

Q BY MR. SHOEMAKER: Do you know any of the boys of the 38th Street gang?

MR. SCHUTZ: We submit that has been asked and answered several times, if the court please.

Q BY MR. SHOEMAKER: Except Joe Ruiz.

A All I know is, he is in the gang, but I don't know any of the guys — the boys.

MR. SHOEMAKER: You may cross-examine.

MR. SCHUTZ: Would your Honor think it appropriate to


376
take the afternoon recess at this time?

THE COURT: Yes, I think we will take our afternoon recess before we go into the cross-examination. The jury will keep in mind the admonition heretofore given, not to talk about the case or form or express any opinion.

(Short recess.)

THE COURT: All right, Juanita, the record will show the jurors, counsel and defendants present. You may proceed.

MR. BIRD: Just a moment, your Honor. I am going to ask a few questions, and I want to look at my notes so I won't have to stop after I get started.

THE COURT: All right, Mr. Bird.

CROSS-EXAMINATION

BY MR. BIRD:

Q Juanita, you have referred in your testimony to a pool hall in the vicinity of Vernon and Long Beach Avenue. That pool hall is on the west side of Long Beach Avenue, is it not?

A I think it is the west side.

Q Do you know which way is north, which way is west, and so forth, down in that neighborhood?

A Yes.

Q Are you sure that the pool hall is on the west side of Long Beach Avenue?

(Witness pausing.)


377

MR. BIRD: The witness having hesitated for an appreciable period of time, I will withdraw the question and get at it in another way, your Honor.

Q Long Beach Avenue is the one down which the big red cars, the Pacific Electric cars, run, isn't it?

A Yes.

Q There are four tracks there, isn't that right?

A Yes.

Q And the cars going toward Long Beach and San Pedro and so on, going towards watts, use the two tracks on the west side, and the cars going toward Los Angeles use the two tracks on the east side; is that right?

A Yes.

Q And there is a place there just before the car gets to Vernon Avenue going south, where they sometimes take on passengers, isn't there, a place that is graveled and fixed up for people to stand to wait for the street car?

A Yes, sir.

Q Isn't that right?

A Yes.

Q Now, this pool hall is on the right-hand side of the street cars that are going toward Long Beach; is that right?

A Yes.

Q You know which is your right hand and which is your left hand, don't you?

A Yes.


378

Q Then this pool hall is on the right-hand side of street cars headed towards Long Beach. Now, there is a street running the same way that Vernon runs, just one block north of Vernon, and it is a very short block, isn't it?

A Yes, sir.

Q There is a grocery store on the corner of that street and Long Beach Avenue; is that correct?

A Yes.

Q Then this pool hall is in the building next to the grocery store; isn't that right?

A I don't remember.

Q Well, it is right close to the grocery store, whether it is right next to it or not; is that correct?

A I guess it is nearby there.

Q Well, now, on the corner of Vernon and Long Beach Avenue there is a place there where they sell candy, cigarettes and beer, and things of that kind, is that not correct?

A Yes.


379

Q Now, was the pool hall closer to that one or is it closer to this grocery store that I just mentioned?

A Closer to the other place.

Q Closer to the grocery store?

A No.

Q Closer to the other place?

A Yes.

Q How far is the place where you live from the corner of Vernon and Long Beach Avenue?

A I don't know.

Q Do you know where Joe Carpio lives?

A Yes.

Q How far is his place from this pool hall that we have been talking about?

A I don't know.

Q Now, when you were out at the Sleepy Lagoon, on the same visit where you said you left for a while and walked up to your uncle's and then came back, when you were out there that time you have testified that you heard somebody call for Manuel Delgado. Can you tell us now what was said, what you heard?

A I just heard somebody call his name, that is all.

Q What did the party say? Did the party say "Manuel Delgado" or "Manuel" or some nickname, or what?

A I don't remember.

Q You don't remember now?


380

A No.

Q Is there any nickname that you know of in connection with Manuel Delgado?

A No.

Q Is there any nickname that you know of in connection with Manuel Reyes?

A No.

Q Now, if I understood you correctly, when you rode out to the Sleepy Lagoon the first time there were three boys and two girls in the car; is that right?

A In our car?

Q Yes. John Matuz, Jack Melendez, Manuel, you and some other girl; I have forgotten who the other girl was.

A Josephine.

THE COURT: Josephine, her sister.

MR. BARNES: Her sister.

Q BY MR. BIRD: There were two girls and three boys?

A Yes.

Q Did each of you two girls have one of the boyrs or was it all one bit party, one big crowd? Did you sort of pair off with John Matuz and your sister sort of pair off with one of the other boys?

A I don't remember.

Q Well, let me put it this way: Were you John Matuz's girl that night?

A I went for a walk with him.


381

Q Was your sister the girl, if I may call it that, of one of the other boys that night?

A She was with Manuel.

Q And that left Jack Melendez without any girl that night; is that right?

A Yes.

Q Now, do you belong to the 38th Street gang?

A No.

Q Does your sister Josephine belong to it?

A No.

Q In answer to Mr. Shoemaker's question you mentioned five girls, one of them you said did belong to the gang, and one you said you didn't know, and so on, and another one you said you didn't know, and another one you said did belong. There were five different girls that were mentioned in your testimony in questions by Mr. Shoemaker. Now, as to the two girls that you said did belong to the 38th Street gang, what made you say that? If you do not understand that question, I will ask it this way: How did you know they belonged to the 38th Street gang?

A Bertha told me she belonged to it.

Q I beg your pardon?

A Bertha told me she belonged to the 38th Street gang.

Q That is Bertha Aguilar?

A Yes.

Q How about the other girl that you said belonged to


382
the 38th Street gang?

A What was that?

Q Did you say that she belonged because she told you she did, or some one else told you she did, or something else?

A She told me she did, too.

Q Is that the only way you know whether anybody belonged to the 38th Street gang?

A Yes.

Q How do you know that there is a 38th Street gang?

A Because people talk about it.

Q Who talked about it?

A I used to hear the kids say there was a 38th Street gang.

Q Did you hear these kinds talk about a 38th Street gang as something that they belonged to or something that they had heard about?

A They just heard about.

Q When you told this court and jury that there is such a thing as the 38th Street gang, is it because you heard somebody else say there was such a thing?

A Yes.

Q How long have you known Manuel Reyes?

A I just saw him that night.

Q You had never seen him before?

A No.


383

Q How long have you known Victor Thompson, known as Bobby Lavine?

A I didn't know him, but I have seen him.

Q Where have you seen him?

A Walking around the streets.

Q Have you seen him anywhere else other than just walking around the streets here in Los Angeles?

A No.

Q After you came back from the Sleepy Lagoon to the pool hall and then later went out to the Williams ranch — calling your attention to that, now, did you see Manuel Reyes any time after you left the pool hall?

A I think he went with us; I am not so sure.

Q You think he rode out in the same car with you, but you are not sure?

A Yes.

Q After you got out to the Williams ranch there were some who stayed in the cars and some got out of the cars, were there not?

A I did not hear that one.

MR. SCHUTZ: I did not get the answer.

(Answer read.)

MR. BIRD: I will withdraw it for the moment and come back to it later.

A You told us about a car or carts getting stuck in the mud out there near the Sleepy Lagoon, or running into a


384
ditch, I think is the way you said it; is that correct? Do you remember that?

A Yes.

Q Now, how did they get the car out of the ditch? Just get out and push on it with their hands, or did they jack it up or something of that kind?

A I don't remember.


385

Q Was that car that you noticed ahead of you or behind you?

A I think it was in front of our car; I am not so sure.

Q Now, after the cars or some of them went down to near the place where the dance was being held, or the party, and stopped, is it a fact that some of those that were in those cars stayed in them and others got out, or did they all stay in or all get out?

A I think some of them stayed in the cars.

Q How about the particular car you were in, did everybody stay in or everybody get out, or did some stay in and some get out?

A The boys got out; Josephine and I stayed in it.

Q Now, when the boys did get out of the car did they all leave the car or did some of them stay close to it?

A I don't remember.

Q Now, coming back to Bobby Lavine, whose true name is Victor Thompson, did you see him on the night of the 1st of August, that Saturday night, or, in other words, the night of the fight or the night of the party? Did you see him that night?

A I seen him in a car that passed us, but I don't know what car it was.

Q Where was that?

A When we was going to the Sleepy Lagoon — I mean


386
to the party.

Q Was that after the cars had stopped to get this car out of the ditch or before?

A Before.

Q Then it was before this car got stuck in the mud or ditch, that in some car you saw some one whom you say was Bobby Lavine?

A That is when we started from the pool hall I seen him.

Q In other words, you saw Bobby Lavine, whose true name is Thompson, back there somewhere at the pool hall?

A Yes.

Q Did you see him any more after that?

A No.

Q Where was Bobby Lavine at the time you saw him?

A In one of the cars.

Q Which way was the car headed? Was it headed toward Long Beach Avenue or away from it? Pardon me. Was the car on Long Beach Avenue when you saw him?

A I don't remember.

Q Well, was it in front of the pool hall when you saw him, or near it?

A I said, when we was going to the party.

Q It was after the cars had already started to go some place that you saw Bobby Lavine?

A Yes.


387

Q You saw him in a different car than the one you were in?

A Yes.

Q Where was this car as compared to you at that time? Beside it, in front of it, or behind it?

A It was beside. It was going past our car.

Q The other car was passing your car?

A Yes.

Q Were there a great many boys in the car that passed your car?

A I don't remember.

Q Do you know whether the car that passed you was a one-seated car or a two-seated car?

A I don't remember.

Q Do you know whether the car that passed you at that time passed you on the right or the left?

A On the left side, I think.

Q Do you know whether the person that you say was Bobby Lavine was seated in the front seat or the back seat, if there were two seats?

A I don't remember.

Q What was there that gave you the impression that Bobby Lavine was in the car? Was it something you saw, something you heard or something that somebody said?

A I seen him.

Q But you do not know where he was?


389

A I don't know.

Q Is that just a story that was going around the neighborhood that you heard, or was it something more than that by which you understood that the 38th Street gang met there?

A I just heard they met there sometimes.

Q I beg your pardon?

A I just heard they met there.

Q Did you hear it from somebody who claimed to be a member of the 38th Street gang or not?

A No.

Q It was just something that you heard?

A Yes.

Q You do not know anything about the matter of where the 38th Street gang met, if it did, other than just something you heard; is that right?

A That is right.

MR. BIRD: I have no further questions.

MR. VAN TRESS: I have one or two, if I may.

CROSS-EXAMINATION

BY MR. VAN TRESS:

Q At no time did you ever see any knives or chains; that is correct, isn't it?

A I didn't see no knives or chains.

Q Do you know Ysmael Parra?

A No.


390

Q What was the name of the boy with whom you were that evening?

A Johnny Matuz.


391

Q Did you ever see Johnny Matuz do anything that night with a stick, a knife, a chain, a piece or iron or any other sort of a weapon?

A No.

Q You did not see Joe Ruiz do anything that night, did you?

A No.

Q How long had you known Joe Ruiz before this night?

A I don't know him. I just used to see him.

Q Where did you used to see him before this night?

A I used to see him in the streets walking.

MR. VAN TRESS: May I have that answer read, Mr. Reporter?

(Answer read.)

Q Did you ever talk to him?

A No.

Q You have stated here, I believe, that you knew him to be a member of the 38th Street gang; is that right?

A Yes.

Q He never told you that, did he?

A No.

MR. VAN TRESS: That is all.

CROSS-EXAMINATION

BY MR. SCHUTZ:

Q Juanita, what hour of the night was it, to your best memory, when you, Johnny Matuz, Jack Melendez and your sister first got together?


392

A I don't remember.

Q Can you approximately tell me what hour it was?

A No.

Q How long was it before you first went to the Sleepy Lagoon that you got together with them?

A I don't remember.

Q Let us try to find out this way: You went to the Sleepy Lagoon twice the night of the 1st and the morning of the 2nd; is that right?

A Yes.

Q All right. Now, can you tell me what time it was when you first went to the Sleepy Lagoon? Your best recollection.

A Around 15 to 9:00. I am not so sure what time it was.

Q You think it was around 15 to 9:00 at night?

A Yes.

Q Give me your best idea of how long before that time that night you were with Jack Melendez and Johnny Matuz?

A I don't know.

Q Was it 30 minutes?

A I don't know.

Q Was it an hour?

A I don't know. I don't remember.

Q Was it 7:00 o'clock at night or was it later than 7:00 o'clock, in your best recollection?


393

A I don't know.

Q You had dinner at home, I take it?

A Yes.

Q Where did the boys meet you? At your house?

A I went to the show and they met my sister in the house.

Q You went to the show that evening?

A Yes.

Q What show was that, please?

A Dorkel.

Q Did you go to the show after dinner?

A Yes.

Q How long after dinner, approximately?

A I don't remember.

Q Do you know what time you ate dinner?

A I forget.

Q What time do you ordinarily eat your dinner? I suggest that you eat dinner at 6:00 o'clock; would that refresh your recollection?

A Yes.

Q Now, we may assume, may we not, that you ate dinner around 6:00 o'clock?

A Yes.

Q As you usually do?

A Yes.

Q Then you went after dinner to the Dorkel Theatre.


394
Do you know how long you spent there?

A No.

Q How many pictures did you see?

A I think I seen one.

Q Your best recollection is that you saw one. That is a feature picture, a regular, ordinary moving picture?

A Yes, sir.

Q All right, then where did you go?

A Then my sister came after me.

Q Was anyone else with your sister at that time?

A The boys in the car.

Q You mean by that Jose Ruiz, John Matuz and Jack Melendez?

A Yes.

Q You sister came into the show after you?

A Yes.

Q Looked you up in the theater?

A Uh-huh.

Q There was some conversation about what you were going to do, I suppose?

A I don't remember.

Q You don't remember. All right. Now then, how long after you left the show was it that you went out and arrived at the Sleepy Lagoon the first time, if you remember?

A I don't remember.

Q You haven't any recollection on that subject. All


395
right. Can you tell me now whether or not you remember whether the boys, or any of them in your party, had anything to drink that evening?

A No.

Q What was your answer?

A I don't think they did.

Q Well, now, do you know?

A No.

Q Did you see any bottles in the car?

A No.

Q Do you know what it means when some one — do you know when some one is intoxicated?

A What is that?

Q Do you know what it means to be drunk?

A Yes.

Q Do you remember any of the boys looked that night like they might be drunk?

A No.

Q That is your best recollection?

A Yes.

Q And you are quite sure now, that nobody had anything to drink during the evening in that party?

A No.

Q No beer?

A No.

Q No whiskey?


396

A No.

Q No wine?

A I didn't see any bottles there.

Q Now, you don't answer the question. I am asking you if you are sure nobody had any of these things to drink.

A I am sure.

Q Now, then, how long did you spend at the Sleepy Lagoon the first time you were there?

A I don't know.

Q Your memory is pretty bad about the whole evening, is that what you want to tell me now?

(Witness pausing.)

MR. SCHUTZ: Well, I will go on to another question.

Q Now then, you testified here, I believe, that you saw Henry Ynostroze the first time you were at Sleepy Lagoon; is that right?

A Yes.

Q What is your answer?

A Yes.

Q Where was he?

A I don't remember.

MR. SCHUTZ: If the court will permit, I prefer to stand close to the witness, so if the court will allow me —

THE COURT: I think you will get along better if you will stand where you are. I haven't any objection to your doing it, but the difficulty is the closer you get to the


397
witness the more she drops her voice.

MR. SCHUTZ: I appreciate that, but I am having a devil of a time trying to get her answers.

THE COURT: Well, you can insist on her talking into the microphone and ask your questions until she does answer.

MR. SCHUTZ: I am going to ask you, Juanita, to talk into the microphone as you did this morning. It is rather important that I heard all of your answers and it is also important that the jurors hear everything you say, and everybody in this part of the courtroom.

A I am talking to it.

Q What particularly called your attention to Henry Ynostroza that night — the first trip out to Sleepy Lagoon, what was he doing, if anything?

A What did you say?

MR. SCHUTZ: Read the first question I asked of that multiple question please, Mr. Reporter. I will withdraw the second part of the question.

(Question read as follows: "Q—What particularly called your attention to Henry Ynostroza that night?")

A I don't know.

MR. SCHUTZ: I don't know what the head shake was.

A I said I don't know.

Q Well, how long were you looking at him?

A I just saw him.

Q Where was he when you just saw him?


398

A I don't remember.

Q Well, you testified, I believe, if my memory is correct, that he was in an automobile; is that true, now? Was that your testimony?

A I guess it was.

Q Then you saw him in a car. Where was that car?

A At the Sleepy Lagoon, I think.

Q Is that the car you illustrated on the diagram this morning,- I believe it was this morning,- take the pointer and show me which car he was in, please.

A I think he was in the second car.

Q The second car marked "G-1"?

A No, "G-2."

Q Which was your car?

A The first one.

Q The car marked "G"?

A Yes.

Q And he was in the car "G-2"?

A Yes.

Q That was parked behind your car or ahead of it?

A Parked behind the other car.

Q And the other car was parked behind yours?

A Yes.

Q Now, did you get out of the car at that time?

A Yes.

Q Now, where were you when you first observed Henry


399
Ynostroza, in your car or out of your car?

A I don't remember.

Q Now, again I ask you, how do you remember that you saw Henry Ynostroza there that night? What brings that to your recollection at this time?

A I don't know.

Q I wish you would try to help me, Juanita. You have no idea why you now remember that Henry Ynostroza was there the first time you went to the Sleepy Lagoon; is that correct?

A Yes.

Q Who was with Henry Ynostroza, if you know?

A I don't know.

Q Were there any other persons with him?

A I don't know.

Q And he was in a car you spoke about?

A Yes.

Q Was he along in the automobile?

A I don't remember.

Q Yet you remember very definitely seeing him there?

A Yes.

Q What part of the car was he in?

(Witness pausing.)

Q Do you understand that question?

A Yes.

Q Please answer it.

A I don't remember.


400

Q Was the car a coupe or a sedan?

A I don't know what kind of car it was; I don't remember.

Q Was he talking, or did he appear to be talking to anybody?

A I don't know.

Q How long before this occasion had you known Henry Ynostroza?

A That was the first time I knew him.

Q In other words, that night was the first time you had ever laid eyes on him to know that it was Henry Ynostroza; is that correct?

A No, I have seen him before.

Q And you knew him to be Henry Ynostroza?

A Yes.

Q I see. And you now cannot tell us if anybody else was with him in the car, or if he was alone?

A No.

Q Your memory does not extend to that point?

A No.

Q Now, do you remember seeing him at any other time during that night?

A No.

Q You did not see him again?

A No.

Q And you rememner now that the boys, Matuz, Johnny


401
Matuz and Melendez, you testified, got out of the car. Now, when you spoke of them getting out of your car, did you have reference to the first time you were at Sleepy Lagoon? Is that question clear to you, Juanita?

A No.

Q Well, you said today some place in the testimony that Johnny and Jack Melendez got out of your automobile at Sleepy Lagoon, or near Sleepy Lagoon. Now, did you mean by that that they got out of the automobile the first time you went to the Lagoon?

A Yes.

Q What was your answer, please?

A Yes.

Q And you don't have any recollection what they did the second time near the Williams ranch; is that true?

A Yes, sir.

MR. SCHUTZ: Thank you. I have no further questions of this witness.

MR. RAVIN: Am I next?

MISS ZACSEK: Your turn.

CROSS-EXAMINATION

BY MR. RAVIN:

Q Juanita, do you know what the word "headquarters" means?

A No.

Q Do you know what the word "stake" means?


402

A No.

Q Do you know what the word "procession" means?

A No.

Q You have heard those words before, have you not?

A I have heard them here.

Q And you don't know what they mean when you hear them?

A No.

Q Do you know what it means to belong to a gang?

A Yes.

Q What does it mean?

(Witness pausing.)

A I don't know.

Q Did you ever belong to a gang, Juanita?

A No, sir.

Q Do you know how you can tell whether a person belongs to a gang?

A No.

Q Do you know what a stake on a fence would be?

A No.

Q And when you answered the question concerning the stake on the fence would you know what you were talking about?

A No.

MISS ZACSEK: Juanita, would you be so kind as to take that microphone and hang onto it and put it up close enough to your mouth so that we can hear?

A It is close.


403

MISS ZACSEK: It is not close enough, Juanita.

THE COURT: Talk right into it.

MR. BIRD: What was the witness' last answer, yes or no, about the stake?

MR. BARNES: No.

Q BY MR. RAVIN: Were you ever in the pool hall, Juanita?

A Inside of it?

Q Yes.

A No.

Q You don't know what goes on in that pool hall then, do you?

A No.

Q How often have you been by that pool hall?

A Oh, when I pass by there; I don't know.

Q You would not go there for any special reason, would you?

A No.

Q Do you know what a member of a gang is?

A It is when you belong to a gang, ain't it?

Q Do you know how you become a member of a gang?

A No.

Q Do you know what it means to be a member of a gang?

MISS ZACSEK: Come on, speak up, Juanita.

A I said no.

Q BY MR. RAVIN: Do you know why it is called the


404
38th Street gang?

A I don't know why.

Q Do you know why it is called a gang?

A I think it is because all the kids hang around with each other.

Q What do they do when they hang around with each other?

A I don't know.

Q Do you have many friends that you hand around with, Juanita?

A No.

Q If you did hang around with some of your friends would you call that a gang, Juanita?

A No.

Q Did you see Joe Carpio in the fight?

A No.

Q Did you see Eugene Carpio in the fight?

A No.

Q Do you know what is done at the meetings of a gang?

A No.

Q Did you ever hear of a meeting behing held of the 38th Street gang?

A No.

Q Do you know what a procession of cars means?

A No.

MR. RAVIN: That is all.

MISS ZACSEK: Mr. Coviello?


405

THE COURT: I think we are at about our recess time.

MR. COVIELLO: We have no cross-examination on behalf of Delgado.

THE COURT: Take a recess until 9:30 tomorrow morning. The jurors keep in mind the admonition not to talk about the case or form or express any opinion. The audience and everybody else please remain seated until the jurors have left the courtroom.

(Whereupon an adjournment was taken until Thursday, October 22, 1942, at 9:30 o'clock a.m.)


406

THURSDAY, OCTOBER 22, 1942; 9:30 O'CLOCK A. M.

THE COURT: The record will show counsel, jury and defendants present. You may proceed.

JUANITA GONZALES, recalled:

CROSS EXAMINATION

BY MISS ZACSEK:

Q Juanita, you live, you tell us, on East 37th Street?

A Yes.

Q That is just a block or so away from 38th Street, isn't it?

A Yes.

Q Is that a Mexican community? Do you know what community means, Juanita? Is that a place where a lot of Mexican people live?

A Some Mexican people live there.

Q Yes?

A And American people.

Q Yes. Now, the Mexican people that live there, they are very friendly and neighborly with each other?

A Yes.

Q The boys and girls of the family, they go together, don't they, of the different families in that neighborhood?

A Yes.

Q And you are friendly with the different people who


407
are Mexican and American who live in that neighborhood?

A Yes.

Q Now, when you say "gang", just what does that mean to you, Juanita, a "gang"?

MR. BARNES: I submit, your Honor, that that matter has been covered by counsel for the same defendants that Miss Zacsek represents. I understand there has been an association of counsel here for all purposes of this case.

THE COURT: No, I think not. I think that is just exactly one of the difficulties we had resulting from Miss Zacsek being late this morning —

MISS ZACSEK: Forty seconds.

THE COURT (Continuing): — there was an arrangement made between Mr. Schutz and Mr. Coviello with reference to their clients.

MR. SCHUTZ: And it still continues.

THE COURT: It continues so far as the trial is concerned, but that other arrangement was merely during the impanelment of the jury and limited to that.

MR. BARNES: Was there an association, may I ask your Honor, of record with regard to Miss Zacsek's clients and those of the other defendants?

MR. VAN TRESS: There wasn't any by me.

MISS ZACSEK: No.

THE COURT: No, there was no arrangement. Miss Zacsek is representing her clients and nobody else is representing


408
them.

MR. BARNES: I misunderstood the matter, then, originally, when it came up, because your Honor may recall I asked your Honor to straighten us out on that matter, due to the fact that some time along in the cross examination the matter might arise, and I just wanted to be sure.

THE COURT: Yes, I realize that, but there has not been any such arrangement made, so far as the actual trial is concerned.

MR. BARNES: Very well.

THE COURT: You may proceed. Answer the question, Juanita. What do you mean when you use the word "gang"?

A I don't know.

Q Well, Juanita, when you went to school did you run around with a gang of girls, or did you call them your crowd?

MR. BARNES: That question is objected to on the ground it is compound.

THE COURT: Well,—

MISS ZACSEK: I will withdraw it and reframe it.

Q Juanita, when you went to school did you have some girl friends that you hung around with, and they were just a little group of close friends?

A Yes.

Q And you would sort of play together and go to each


409
other's houses and have little parties together?

A Yes.

Q Well, when you were in such a group with your friends, what did you call yourself, what did you refer to?

A We didn't call ourselves nothing.

THE COURT: Well, did you call yourselves a gang?,

A We didn't call ourselves a gang.

THE COURT: The girls you ran around with, did you call yourselves a gang?

A No, sir.

Q BY MISS ZACSEK: Did you call it your crowd?

A No.

Q Have you a word in Spanish for it?

A No.


410

Q When you lived there on 37th Street did you hear of this group of young men who go together as being a gang?

A Yes.

Q Do you know —

MR. SCHUTZ: At this time may I ask the young lady to speak loudly? I cannot hear her.

THE COURT: Speak up. We are wasting time, Juanita. We have been very patient with you. You have to talk into that microphone and talk loud enough so the people can hear you.

MR. BARNES: While we have an interruption, your Honor, I have the list that counsel suggest we get. I am prepared to pass sufficient copies to the jury so each juror may have one.

THE COURT: If you have fifteen copies you may hand them to the jurors and they can pass them among themselves.

MR. BARNES: Yes.

MR. BIRD: May the record show where it says "Left to right" it means as the defendants are facing and not as the jury faces the defendants.

MR. BARNES: Left to right as we are facing the defendants.

MR. BIRD: No, right to left, as we face the defendants.

MR. BARNES: I beg your pardon. Left to right as the defendants are facing the jury.

THE COURT: In other words — Mr. Gilmore will pardon


411
me using him as a starting point — the defendant closest to Mr. Gilmore is No. 1, and then they number from 1 to 6 coming this way, and then they again start on the side of Mr. Gilmore and number this way.

MR. SHOEMAKER: In other words, they are numbered from the rail toward the east?

THE COURT: Yes.

MR. BARNES: That is correct, your Honor.

MR. VAN TRESS: I think this would be a good time, as was suggested the other day, to write in the name on house No. 3, I believe it was.

THE COURT: Yes. I thank you, Mr. Van Tress, for the suggestion. I will say this for the information of the jury. Whenever there is no particular disagreement as to who lived in a house or by whom the house is occupied, or who is known as the owner of the house, it might help the jury some if we wrote in on the diagram the name of the person. Now, house No. 3 has been referred to as the Delgadillo house. I understand it is agreed we might write on the diagram — not necessarily this minute —

MR. BARNES: We can do it right now if it is convenient.

THE COURT: All right, Mr. Barnes.

MR. BARNES: It was suggested the other day that we just write "Del" for Delgadillo — it is a long name if we write it out — the jury can see it better if we just write "D-e-l."


412

THE COURT: Yes. It is rather difficult to remember these places on the diagram.

MR. BIRD: While we are having an interruption, I might suggest there was a stipulation entered into by counsel yesterday in this case which has not been made a matter of record.

THE COURT: While Mr. Barnes is exercising his artistic ability we will take care of that. I understand, Miss Zacsek and gentlemen, that in view of the fact that during the trial the Grand Jury transcript and the testimony taken at the Coroner's inquest will be used for various purposes, it is now stipulated by and between counsel for the various parties that if the shorthand reporters who took the testimony before the Grand Jury and at the Coroner's inquest were called they would testify that they correctly transcribed the testimony as given by the witnesses, taking it down first in shorthand and then transcribing it to typing, and that subject to correction it may be deemed considered that the transcripts correctly reflect such testimony as given by the respective witnesses before those two trials.

MISS ZACSEK: So stipulate.

MR. BIRD: So stipulate, your Honor.

MR. BARNES: So stipulate, your Honor.

THE COURT: Is that stipulated, Mr. Schutz?

MR. SCHUTZ: Yes.

MR. BARNES: It is further suggested that I make a large


413
or capital "L" out of the "L" in "D-e-l" for "Delgadillo" so it can be better seen, your Honor.

MR. BIRD: No objection.

MR. BARNES: This is supposed to be a small "L".


414

THE COURT: You might blacken it up. It is rather inconsistent to use a lower case letter for "e" and then an upper case for "L."

MR. BARNES: This is not an upper case letter; this is a lower case letter.

THE COURT: Just blacken it up and I think the jury can see it. Can you see it from where you are, Mr. Nelson?

JUROR NELSON: Yes, I can, your Honor.

THE COURT: You may proceed, Miss Zacsek.

Q BY MISS ZACSEK: How long have you lived on 37th Street?

A Around five years.

Q You say that you only heard the 38th Street gang mentioned for about six months or a year?

A Yes.

Q You had not heard of it before?

A No.

Q Are you sure of that?

A I am quite sure.

Q You say you lived there for five years. Did you live near Henry Leyvas and the Leyvas family who lived there?

A No.

Q In that neighborhood?

A I did not see — I did not — no.

Q Do you know any of your Spanish or Mexican neighbors


415
there, Juanita?

A Yes.

Q Do you know any of the neighbors or families there whose sons are in the row of chairs there as defendants?

A Yes.

Q How many of those boys whom you see here did you see in 37th or 38th Street, in that neighborhood, that lived there?

A Eddie.

Q Eddie who?

A Eddie Grandpre.

Q Eddie Grandpre lived there. Who else?

MR. BARNES: Just a minute. If your Honor please, the witness did not say that Eddie Grandpre lives there. She said she recognized the young man as a young man she had seen around on the street.

THE COURT: You had better clear that up.

MISS ZACSEK: Yes.

MR. SHOEMAKER: Let us have her identify Eddie Grandpre.

MISS ZACSEK: Will you stand up, please?

(Defendant Grandpre stands up.)

Q BY MISS ZACSEK: Juanita, when I am talking about people who live in that neighborhood — you say you know those people who walk around there or who you have seen. I asked you if you know people who lived in that neighborhood. Do you understand that, Juanita?


416

A Yes.

Q When I asked you if any people lived there, any families whose sons, that is, boys who are your neighbors and belong to families that are your neighbors, if any of those boys are here as defendants?

MR. BARNES: We submit the question —

THE COURT: I think you better reframe it.

Q BY MISS ZACSEK: You live at 2103 East 37th Street?

A Yes.

Q Well, Eddie Grandpre lives just a short distance from you, a few houses away, doesn't he?

A Yes.

Q And he is a close neighbor of yours, isn't he?

MR. BARNES: Objected to as calling for a conclusion and opinion of the witness, as to whether he is a close neighbor.

THE COURT: Overruled.


417

Q BY MISS ZACSEK: Is that right?

A Yes.

Q All right, now, have you got any other neighbors that you live near, and the boys in the family are here as defendants, Juanita?

A I don't know of any.

Q You don't know?

A No.

Q Now, Juanita, you said that you went down to the Sleepy Lagoon some time Saturday evening with your sister Josephine and Jackie and Johnny and Manuel; is that right?

A Yes.

Q Now look, Juanita, please, speak up, speak right into that microphone, will you, huh? Does that bother you, that mike in front of your face?

A It doesn't bother me, but I am tired.

Q Well, perhaps I can get it over close to your mouth and you won't have to speak very loud. Is that comfortable for you?

A Yes.

Q When you got to the Sleepy Lagoon you saw some other cars there, a couple of cars?

A Yes.

Q Those cars were there already when you got there?

A Yes.

Q Did you stop and talk to any of the people in those cars?


418

A No.

Q Did you wave to them or say hello or anything?

A No.

Q Was anybody swimming in the Lagoon?

A I didn't see anybody swimming.

Q Do you know whether Mexican boys and girls or just boys or girls have gone swimming in that lagoon?

MR. BARNES: That is objected to as calling for a conclusion of the witness.

THE COURT: I don't see its materiality, either. Sustained.

Q BY MISS ZACSEK: Did you stay in the car very long before you got out?

A No.

Q Just a little while?

A Yes.

Q You said you didn't have a watch or any way of telling time that night; is that right?

A Yes.

Q So you just, whenever you give us any time, that is just your best guess?

A Yes.

Q Because you really don't know, do you?

A No.

Q You stayed in the car and talked to Jackie and Johnny and Josephine a little while, and then you got out;


419
is that right?

A Yes.

Q And you walked away?

A Yes.

Q Towards your uncle's house?

A Yes.

Q Now, at any time at all, Juanita, that you were walking away, did you hear any — the sound of any automobiles coming up toward that Sleepy Lagoon?

A I don't remember.

Q You don't remember. Do you remember any automobile headlights around there anywhere?

A No.

Q At that time?

A No.

Q Did you see any people coming up towards that lagoon while you were walking away?

A No.

Q When you came back did you see any automobiles around there, other than the two automobiles that you told us about that were already there?

A No.

Q Did you see any other people around there other than some people that you said you had seen in the automobiles that were already parked there?

A I don't remember.


420

Q You don't remember?

A No.

Q Well, Juanita, you told us that something was said about a fight, after you got back; is that right?

A Yes.

Q And you said somebody said that they had picked a fight on them; is that right?

A Yes.

Q Who said that, Juanita?

A I don't know.

Q Well, Juanita, when you got back from your uncle's house to the lagoon there were some boys and girls around that lagoon that had come out of the car; isn't that right?

A I don't remember.

Q Well, perhaps I can help you, Juanita. When you came back you saw several boys and some girls around there that were talking; is that right?

A I don't remember.

Q Well, what made you tell us, Juanita, that somebody said something there about a fight?

A I don't know.

Q A little louder, please.

A I say I don't know.

MR. SHOEMAKER: What was the answer, Mr. Kennelly?

(Answer read.)

MR. SHOEMAKER: We cannot hear back here, your Honor.


421

Q BY MISS ZACSEK: Well, you said that you came back and you stood by the car; is that right?

A Yes.

Q Well, as you stood there did you see other young people around that car?

A Yes.

Q Sure. Can you remember who you saw?

A No.

Q Can you remember how many you saw around that car?

A No.

Q Did you see any young people standing around any other car?

A I don't remember.

Q Were the other two cars still there?

A I don't know.

Q Well, isn't it a fact, Juanita, that the boys and girls who were there when you returned told you, and spoke that there had been a fight and the Downey Street gang had come up and started picking a fight on them?

A Yes.

Q That is right, and you heard that the Downey Street gang had come there and had tried to beat up Henry Leyvas; you heard that, didn't you?

A I don't remember.

Q Do you remember while you were there that they were talking and saying that they — that Henry had been


422
hurt, and that he could not fight back or anything; do you remember hearing that?

A No.

Q What do you remember about the word "Downey Street Gang"; what else do you remember about it?

A That they came and beat up the boys, that is all I remember.

Q Yes, the boys and then —

MR. SHOEMAKER: May I have that read? I did not hear it.

MR. BARNES: I didn't, either.

(Answer read.)

Q BY MISS ZACSEK: That the Downey Street gang came there and beat up the boys, you remember that?

A Yes.

Q Do you remember anything said there about the Downey Street gang having tried to break up their automobiles?

A I don't remember.

Q You don't remember that?

A No.

Q But you definitely remember that it was said that the Downey Street gang had come there to beat up the boys?

MR. SHOEMAKER: Objected to as asked and answered, your Honor.

THE COURT: Yes, that is merely repetition.

Q BY MISS ZACSEK: Juanita, do you speak Spanish with your friends around that neighborhood?


423

A Sometimes; not all the times.

Q Sometimes you speak English and sometimes Spanish?

A Yes.

Q Now, you have Mexican friends here, girls you go with?

A Yes.

Q Now, you have heard about other gangs, haven't you, Juanita?

MR. BARNES: That is objected to on the ground it is not proper cross examination and not material.

THE COURT: Sustained.

Q BY MISS ZACSEK: Well, you have heard about the Downey Street gang?

A Yes.

Q Did you know who the Downey Street gang, or what the Downey Street gang was when you heard about it that night?

A No.

MR. SHOEMAKER: "Downey Street Gang" — there is no "Street" in it that I know of.

Q BY MISS ZACSEK: Well, thank you. It was the Downey gang; is that right?

A Yes.

Q Did you ever hear of the Downey gang before that?

A I don't think I have; I don't remember.

Q How?

A No.


424

Q You never did?

A I don't remember if I did or not.

Q Did you hear of the Alpine gang?

MR. BARNES: That is objected to on the ground it is not proper cross examination.

THE COURT: Sustained.


425

Q Had you ever seen Henry Leyvas before this night?

A I don't remember.

Q When you lived on 37th Street during those five years did you ever hear of any member of the Leyvas family as being neighbors around where you lived?

A No.

Q You don't remember of hearing about Henry Leyvas at all before this Saturday night?

A I don't remember.

Q Did you hear anything said about Henry there at the lagoon when you came back and heard something about the Downey gang coming, and a fight, or picking a fight with the boys?

A No.

Q No?

A I don't remember.

MR. SHOEMAKER: What was the answer, Mr. Kennelly?

(Record read.)

Q BY MISS ZACSEK: Did you hear Henry Leyvas' name mentioned there at the lagoon at all that night?

A I don't remember.

Q Did you see Henry that night?

A I don't know.

MR. SHOEMAKER: She shook her head and said something. What was the answer?

(Answer read.)


426

THE WITNESS: I am tired.

Q BY MISS ZACSEK: Do you know — What, dear?

A I say I am getting tired.

MISS ZACSEK: I know; I know it is awfully hard up there. Do you want to rest a minute? All right, let's go on, you can, can't you, Juanita?

A O. K.

Q O. K. Do you know Victor Segoba?

A Yes.

Q Does he live near where you live?

A He used to live right where we used to live, on the same street.

Q On the same street?

A Yes.

Q How long did he live there?

A I don't know.

Q Did he move away?

A Yes.

Q When did he move away, do you know that?

A No.

Q How long is it that he has been gone away from there?

A I don't remember.

Q Were you friendly with Victor when he lived there, was he your friend and acquaintance?

A Yes.

Q Yes. And you were friendly with Eddie, weren't you?


427

A Yes.

MISS ZACSEK: Victor, will you please stand up?

(Defendant Segoba standing.)

Q BY MISS ZACSEK: That is Victor, isn't it?

A Yes.

Q And you have already seen Eddie stand up?

A Yes.

MR. BARNES: May we have the record show it was Victor Segoba who stood up and not some other Victor?

THE COURT: Yes.

MISS ZACSEK: Thank you.

Q Now, during the time that you lived there these five years, you have seen and talked to Victor and to Eddie both, haven't you?

A Yes.

Q Now, coming back to that lagoon: After you heard that the Downey Street gang had come to pick this — or the Downey gang, rather, had come to pick this fight —

MR. BARNES: That is objected to as assuming facts not in evidence, that she ever heard that the Downey gang went there to pick the fight.

THE COURT: The objection is sustained.

Q BY MISS ZACSEK: Well, you said the Downey gang came to fight the boys; isn't that right?

MR. BARNES: That is objected to as assuming facts not in evidence.


428

THE COURT: Just a moment, Miss Zacsek. The witness did not say that, and that form of question is not a proper one, anyway. You can ask her what she saw and what she heard.

Q BY MISS ZACSEK: Juanita, I have forgotten what you told me about that. Will you tell me again what you heard said when you came back to the lagoon about the fight, and the Downey gang, tell me the words again, please?

A I just told you that they came and beat up the boys, that is all I heard.

Q That they came and beat up the boys?

A Yes.

Q All right. Now, after you heard that they came and beat up the boys, what was the next thing that you remember hearing or the next thing that was done?

A I don't remember hearing anything else.

Q Well, did you get in your car?

A Yes.

Q And then after you got in your car you drove away?

A Yes.

Q That is, the car drove away?

A Yes.

Q And you told me, or told all of us, rather, that you went down to where the pool hall was?

A Yes.

Q Juanita, do you know or have you heard any of your


429
friends, say Eddie Grandpre or Victor Segoba, say anything about the pool hall being their club house?

A No.

MR. BARNES: That is objected to — it was answered, apparently, and I did not hear it, your Honor.

MISS ZACSEK: The answer was "No."

THE COURT: I will let the answer stay in the record.

Q BY MISS ZACSEK: Juanita, do you know what a club is, or a clubhouse, Juanita?

A It is where the boys and girls have meetings, ain't it?

Q Uh-huh, yes. When you got there you saw your friend Victor near there?

MR. SHOEMAKER: When you got where, Miss Zacsek?

MISS ZACSEK: To the last point I brought her, to the pool hall.

MR. SHOEMAKER: The poolroom?

MISS ZACSEK: Yes.

A I don't remember.

Q BY MISS ZACSEK: You don't remember whether you saw Victor there?

A No.

Q Do you remember whether you saw Eddie there, Eddie Grandpre?

A I don't remember.

Q You told us when you were on the stand that when you


430
got there you heard somebody in that group of boys and girls say they were going to a party?

A Yes.

Q And you went along too?

A Yes.

Q What did you understand by the word "party"?

MR. SHOEMAKER: Objected to as calling for a conclusion of the witness.

THE COURT: Sustained.

Q BY MISS ZACSEK: What did the word — what did going to a party mean to you at that time?

MR. SHOEMAKER: Objected to on the same ground.

THE COURT: Sustained. In other words, the witness is asked to interpret words used by somebody else.

Q BY MISS ZACSEK: Juanita, did you say anything when you heard that everybody was going to a party?

A I don't remember if I did.

Q Now, you said that you saw some of the boys get out of the cars and break stakes off a fence after they got to the ranch where you saw some lights?

A Yes.

Q Did you see what they broke off?

A Some boards from the fence.

Q Boards. Did you see what kind of boards?

A No.

Q Do you know what those boards looked like?


431

A No.

MR. BARNES: I submit the witness has answered. She did not see what kind of boards they were.

THE COURT: I will permit her to answer this next question, if she can.

Q BY MISS ZACSEK: Can you tell us anything about how those boards looked?

A No.

Q Was it very dark?

A It was dark. I couldn't see what kind of boards they were.

Q You couldn't?

A No.

Q Did any of the light that you were talking about shine out on the road where you were?

A I don't remember if it did.

Q Do you remember that it was dark?

A Yes.

Q Was it hard to tell in that darkness who was who? Was that hard to do?

A Yes, ma'am.

Q How far away would a person have to be that night before you could tell who they were?

MR. BARNES: That is objected to as calling for this witness' conclusion, and no foundation laid for it. As far as the witness is concerned, we have no objection, but


432
as far as her controlling what other people could see, we do object.

MISS ZACSEK: I will withdraw it.

THE COURT: I think that is probably correct. Although I have in mind the old rule as to the difference between day and night, at common law, it must be a person's features to determine whether it was day or night. I do not think that would apply here. You can ask how far away she could see a person's face and recognize it.

MISS ZACSEK: Yes.

Q How far away could you see a person's face clearly enough to know who they were?

A I don't know.

Q How far would they have to be away from you that night?

A I don't know.

Q Well, your friends were there, weren't they?

MR. BARNES: Objected to as argumentative.

THE COURT: Sustained.

Q BY MISS ZACSEK: Your sister was there?

A Yes.

MR. BARNES: The same objection.

Q BY MISS ZACSEK: You stayed in the car with her, you told us before?

A Yes.

Q You told us that your friends or the boys got out of


433
the car.

MR. SHOEMAKER: Objected to as asked and answered.

THE COURT: Sustained on that ground and also sustained upon the other ground you are pursuing the question of ability to identify, because her identification obviously would be based upon the fact she got into the car with them where there was more light and rode a distance with them. That would not determine what the visibility was there.

MISS ZACSEK: I think I can get at it if I may ask one or two more questions in this wise, your Honor.

Q Could you see your friend's face in the car when they were still in it after the car had stopped at that ranch?

A I don't remember.

MR. SHOEMAKER: What was the answer, Mr. Perry?

(Answer read.)

Q BY MISS ZACSKE: Did you see anybody there with knives?

A No.

Q Did you see anybody there with chains?

A No.

Q Did you see anybody there with iron bars in their hands?

A No.

Q While you were at the poolroom did you see anybody with any knives, chains, iron bars or anything else in


434
their hands?

A No.

Q Did you see anybody with anything in their hands other than just boards they pulled off the fence?

A No.

Q Is that all you saw?

A Yes.

Q Did you really see those boards, Juanita, or did you just see or hear them being pulled off the fence?

A I seen them.

Q You did?

A Yes.

Q Did you see Henry Leyvas there?

A No.

Q At any time?

MR. SCHUTZ: May I have that answer?

(Answer read.)

Q BY MISS ZACSEK: Did you see him that night at any time?

A I don't remember.

Q But you are sure you did not see him there on the ranch?

A I am sure.

Q You are sure?

A Yes.

Q Did you see Victor Segoba there at the ranch?


435

A No, I did not.

Q At any time?

MR. SCHUTZ: What was that answer, Mr. Reporter?

(Answer read.)

Q BY MISS ZACSEK: Did you see Eddie Grandpre there at the ranch?

A No.

Q Did you see Eddie at the pool hall, Eddie Grandpre?

A I don't remember.

Q Did you see Victor Segoba at the pool hall?

A Yes.

Q What was he doing there?

A He was standing, that is all I seen.

Q Was he talking to somebody?

A I don't remember.

Q Just standing there?

A That is all I seen. I just seen him and I turned around to talk to my sister.

Q What was he doing when you saw him standing there?

A I don't remember.

Q Were there people around him, boys or girls?

A I don't remember.

Q Now, you said when you got to the ranch where you saw those lights, you saw a lot of boys running around?

A Yes.

Q Did you hear anything about the Downey gang there?


436

A No.

Q Did you see where the boys that were running around came from?

A No.

Q Were cars parked in front of you on the road?

A There was a tree right in front of us.

Q A what?

A A tree.

Q Were you first car out there?

A No.

MR. SCHUTZ: May I have the answer, please?

(Answer read.)

Q BY MISS ZACSEK: Can you remember who got out there after you got into the road or onto the road that is in the ranch?

A No.

Q Do you remember when the car got stuck in a hole?

A Yes.

Q Well, where was that car in relation to where you were, in relation to your car?

MR. SHOEMAKER: She said the car just went into a ditch and did not get stuck in a hole.

THE COURT: Well, a ditch and a hole might be the same thing in the mind of the witness. I don't know.

MISS ZACSEK: Well, let us clear it up.

Q Juanita, once you said the car was stuck in a hole


437
and then before that you said it was in the ditch.

A It is just the same to me.

Q It is just the same to you?

A Yes.

Q Do you know whether that was a dry hole or was it kind of wet and muddy?

A I don't remember.

MR. SCHUTZ: Juanita, will you try to keep your voice up? I cannot understand what you are saying from here. Will you try to raise your voice?

A Yes.


438

Q BY MISS ZACSEK: Where was your car? Was it ahead of the car that got stuck in the ditch or was it behind the car that got stuck?

A Behind the car.

Q Was it right behind it?

A I don't remember.

Q Was there a car ahead of it, if you can remember?

MR. BARNES: We object to that on the ground it is indefinite now as to which car counsel is talking about, whether it is the one the witness rode in or the one that was stuck in the ditch.

MISS ZACSEK: The one that was stuck in the ditch.

THE COURT: Suppose you reframe it so there will not be any doubt about it.

Q BY MISS ZACSEK: You can remember that car being stuck in the ditch, can you? Can you see that, remember it?

A Yes.

Q Was there a car in front of that car that was stuck in the ditch, in that hole?

A I don't remember.

Q Can you remember how many cars there were that were around you, your car, when your car was stopped up there by the place where the lights were?

A No.

Q Did any cars stop at all by the lagoon?

A I don't remember.


439

Q Juanita, how soon was it after your car stopped by the place where there were lights on the ranch before you saw these boys running around?

A I don't remember.

Q Did you see any boys running toward you at all?

A Towards us?

Q Yes?

A I don't remember.

Q Can you remember what direction the boys were running in?

A No.

Q Can you remember the direction from where they came before they started running?

A No, I don't remember.

MR. SCHUTZ: Your answer was "I don't remember"?

A Yes.

Q BY MISS ZACSEK: You do not remember much about the whole thing; is that right?

A That is right.

Q Is that because you are so tired, Juanita?

A Well, they told us to forget everything about it.

MR. BARNES: What was that answer? I did not hear it.

(Answer read.)

Q BY MISS ZACSEK: Who told you that, Juanita?

A I don't remember who told us; when they sent us to Ventura.


440

Q They sent you to Ventura?

MR. SHOEMAKER: May we have that answer read?

(Answer read.)

Q BY MISS ZACSEK: They sent you to Ventura?

A Yes.

Q You are over at Juvenile Hall now, aren't you?

A Yes.

Q They bring you here and take you back?

A Yes.

Q Is that why you have forgotten everything, Juanita, because you were told to try to forget it as soon as you could?

A Yes.

Q You just sort of put it out of your mind since then?

A Yes.

MISS ZACSEK: That is all, Juanita. Thank you.

MR. SHOEMAKER: That is all, your Honor.

THE COURT: That is all.

MR. SCHUTZ: Nothing further.

(Witness excused.)

MR. BARNES: We are sending for another witness, your Honor. It will take a minute or two before we are ready with the witness, due to the fact there are no accommodations for witnesses here, they having been excluded.

THE COURT: Yes. I do not know whether the jury understands, but there was a request made that the witnesses


441
remain out of the courtroom. Due to there being no special witness room to keep the witnesses here we have these little delays sending for a witness because they have to be brought from other floors.

BETTY ZEISS, called as a witness on behalf of the People, being first duly sworn, testified as follows:

THE CLERK: State your name, please.

A Betty Zeiss.

THE CLERK: How do you spell that last name?

A Z-e-i-s-s.

DIRECT EXAMINATION

BY MR. BARNES:

Q Betty, how old are you?

A Sixteen.

MR. BARNES: Just sit back and relax and take it easy, Betty, and make yourself comfortable there. This contraption is a loudspeaker that will amplify the voice a little and make it a little easier for us to hear you. You don't mind using that, do you?

A No, sir.

MR. BARNES: Let me pull it over a little for you to make it a little easier. Now, you just sit back comfortably in the chair and pull this speaker up to your face so


442
that you can talk into it and we can all hear, and we will get along faster.

Q Around the 1st of August, Betty, where did you live?

A I forget the address; it was on Pico Boulevard.

Q On Pico Boulevard?

A Yes, sir.

Q Some time in the early morning hours of Sunday morning the 2nd of August did you go out with a number of boys and girls past the Sleepy Lagoon to a group of houses out on the Williams ranch?

A Yes, sir.

Q Let me show you a diagram here, Betty. You have not been in court, and I will explain this to you so that you will know generally what it is. This diagram is marked in this case as Exhibit No. 1, and it shows generally Atlantic Avenue, and then a road leading down past a reservoir, which is marked here as Sleepy Lagoon, and on past that to a little group of houses over here. The top of the diagram is north, the far side over there is west, the side closest to me is east, and the bottom part is south; do you understand that diagram, generally speaking?

A Yes, sir.

Q Thank you. Now, we have another diagram now, if you will just turn around a little bit and I will explain this one to you. This is a diagram marked "2" in this case, and it shows in larger form the location of the houses and the


443
roads which are shown in the small red circle on the first diagram I showed you. In other words, this Exhibit 2 is an enlargment of what is shown in this red circle, Exhibit 1; do you get the general idea?

A Yes, sir.

Q The top of the diagram is north, the lefthand side, as you look at it, is west; the bottom is south and the righthand side is east. These black squares where the words "House" are marked on this diagram, Exhibit 2, indicate generally the outside walls of the houses and the bunk house as shown on the diagram. The brown portion which I am pointing to marked "Traveled road" indicates generally where cars pass. There are two power poles indicated upon the diagram marked with the words "Power pole" and the letters 3-A and 3-B in blue pencil put on there.


444

There is a water tank outlined heavily in black, indicated in the southern portion of the diagram, a pump house and another house marked No. 8 over there. Generally speaking, Betty, do you understand what is shown upon that diagram?

A Yes, sir.

Q Now, I think you said that you did go out there some time in the early morning of Sunday, August 2nd, this year, did you?

A Yes, sir.

Q And did you go in an automobile with anyone?

A Yes, sir.

Q Who was with you in the automobile that you went in, Betty?

A There was quite a few kids.

MR. SCHUTZ: Quite a few kids, did you say?

A Yes, sir.

MR. SCHUTZ: Is that the answer, Mr. Reporter?

THE REPORTER: Yes.

Q BY MR. BARNES: Let me get at it this way: Who drove the car, do you remember?

A Benny Alvarez.

Q Benny Alvarez?

A Yes, sir.

Q Do you see Benny Alvarez in the courtroom?

A Yes.


445

Q Which row is he in?

A The first row.

Q And as you look at the row is he on your right — near the right end or near the left end of the row, or near the center?

A He is the second boy on that end.

Q The second boy on the right end as you look at them?

A Yes, sir.

MR. BARNES: May we have the record show the witness has identified Benny Alvarez?

MR. VAN TRESS: And Benny Alvarez is standing.

MR. SCHUTZ: Yes, standing. Just be seated.

Q BY MR. BARNES: The boy who just stood up was Benny Alvarez; is that correct?

A Yes, sir.

Q About what time did you first see Benny Alvarez that evening?

A I had been with him all evening.

Q Are you acquainted with the location at Vernon and Long Beach, Betty?

A Yes, sir.

Q Before going to the houses shown on the two exhibits I have shown you, or near that place, had you been in the vicinity of Vernon and Long Beach?

A Yes, sir.

Q Now, before you went to the vicinity of Vernon and


446
Long Beach?

A Yes, sir.

Q Now, before you went to the vicinity of Vernon and Long Beach where were you within a couple of hours before that?

A I don't remember.

Q Who was in the car when you were in the car at the vicinity of Vernon and Long Beach, Betty?

MR. VAN TRESS: We object to that as no proper foundation laid as to time, in that she has stated she was with Benny Alvarez for a couple of hours and she does not remember just where they had been; it is indefinite.

THE COURT: Overruled.

MR. BARNES: The judge says you may answer, Betty.

THE COURT: Just as a suggestion, I wonder if you could not start from the time she got into the car, and who was in the car and probably go along a little easier?

MR. BARNES: It might be more convenient, your Honor.

Q Where did you get in the car that evening, Betty?

A On Pacific Boulevard.

Q How far was that from Vernon and Long Beach?

A I mean Pico Boulevard.

Q Pico Boulevard. You started out from Pico Boulevard that evening?

A Yes, sir.

Q Where you lived?


447

A Yes, sir.

Q Then where did you go, Betty?

A I went down towards Vernon and Long Beach.

Q And you went in a car at that time?

A Yes, sir.

Q And was Benny Alvarez driving at that time?

A Yes, sir.

Q Did you pick up anyone between the time you left Pico Boulevard and arrived at Vernon and Long Beach?

A Not that I remember of.

THE COURT: Was there anybody besides Benny in the car when he picked you up?

A No, sir, not that I remember.

MR. BIRD: The answer was "No", your Honor?

THE COURT: The answer was "No."

Q BY MR. BARNES: Just the two of you in the car at that time?

A Yes, sir.

Q When you got to Vernon and Long Beach did you stop there?

A I don't think we did.

Q I beg your pardon?

A I don't think we did. I think we rode around for a little while, if I remember right.

Q You rode around for a while?

MR. SHOEMAKER: What was your answer to that last


448
question?

Q BY MR. BARNES: You rode around for a little while, Betty?

A I think we did.

Q All right. Now, at the time that you went to the ranch that night, the Williams ranch, do you remember about what time it was you got there, just roughly?

A I had no idea what time it was.

Q Was that car the only car that went there, or were there also other cars?

A There was other cars.

Q From what place — I withdraw that. Did the other cars start from the same place at the time you started?

A Yes, sir.

Q From what place did they start, Betty?

A In front of Bertha Aguilar's house.

Q In front of Bertha Aguilar's house?

A Yes, sir.

Q Do you remember where Bertha Aguilar lives?

A I don't know what street it is; it is 43rd or something, I don't know.

Q Do you recall whether or not that address is 1720 East 42nd Street?

A It might be 42nd Street but I don't know the address.

Q You don't know the number, but you think it was either 42nd or 43rd Street; is that it?


449

MR. VAN TRESS: We object to counsel leading the witness.

THE COURT: I was interrupted and I did not catch the question. Let me have it, Mr. Kennelly.

(Question read.)

A Yes, sir.

THE COURT: The objection is overruled. The answer may stand.

MR. SCHUTZ: If the court please, while I appreciate the witness may be a little nervous, while you ask her to take her hand from her mouth so the answer is clear?

THE COURT: If you will just talk right into that, Betty, it will work fine, if you do not turn your head a little bit away. If you do that it does not go in; it has to go right straight in, and if you will do that, please?

MR. BARNES: If you will put it up a little closer it will work better. Don't be afraid of it; it won't break, you cannot break it.

Q You were in front of Bertha Aguilar's house about what time, Betty, just roughly?

A It was rather late; I don't know what time it was.

Q Late in the evening, was it?

A Yes, sir.

Q Do you think it was before midnight or after midnight, Betty?

A Well, I thought it was before midnight.


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Q Would you say it was a long time before midnight or close to midnight?

A Pretty close to midnight.

Q When you were in front of Betty Aguilar's house — Bertha Aguilar's house, were you in an automobile?

A Yes, sir.

Q Who else was in the car at that time, Betty?

A I don't remember who all was in the car.

Q Can you tell us some of them that were there?

A Benny.

Q Benny Alvarez?

A Yes, sir.

Q Go ahead.

A I don't remember. Different people kept getting in the car and then getting out.

Q Was Bertha Aguilar in it?

A No, sir, not that I remember.

Q While you were there in front of Bertha Aguilar's house in the car with Benny, did anyone come up to the car and say anything about anything that had happened out at the Sleepy Lagoon that night?

MR. SCHUTZ: If the court please, we will object to that on the ground that is leading and suggestive.

THE COURT: Overruled.

MR. VAN TRESS: Assuming something not in evidence so far as this witness is concerned.


451

THE COURT: Overruled. The question is whether something occurred, not assuming something occurred.

A Nobody came up to the car that I remember.


452

Q BY MR. BARNES: Well, did anyone say anything there that you heard while you were in the car?

A No.

Q Did any car drive up there?

A Yes.

Q What kind of a car was it, did you notice, Betty?

A No, I did not notice.

Q Did you notice who was in it?

A I don't know who was in it.

Q Did you hear someone in that car say anything?

A No, I didn't hear anybody.

Q Did anyone in that car go over to the other car?

A No; I got out of our car and I was standing on the sidewalk.

Q Yes?

A And nobody came over to our car.

Q While you were out there did you hear anybody say anything about anything that had happened that night?

A Yes.

Q And who did you hear say that, Betty?

A I don't remember who it was.

Q Where did the voice come from?

A From the car that had driven up.

Q From this car that had driven up near your car?

A Yes.

Q Now, was it a man's voice or a woman's voice,- a boy's


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voice or a girl's voice that said whatever was said there?

A I think it was a boy's; I didn't notice.

Q After that voice said whatever was said did you and Benny and others go from Bertha Aguilar's house to some place?

A Yes.

Q Where did you go?

A We went over to the corner of Vernon and Long Beach.

Q Near the pool hall?

A Yes, sir.

Q You know where the pool hall is?

A Yes.

Q Now, what was it that the voice in the car said before — that you heard said after it drove up?

MISS ZACSEK: That is objected to, may it please the court, on the ground it calls for hearsay, in that there has been no identification of that voice and in no way can it be tied to any of the defendants in this case.

MR. BARNES: We will tie it to the defendants all right. We cannot do it with this witness.

THE COURT: Overruled.

MR. BIRD: Pardon me, your Honor. An objection that goes to a question about the second or third question back, just went through my mind. This witness was not in the courtroom when the other witness testified and we are not sure from the state of the present record whether she is


454
talking about the same pool hall. I think the matter ought to be cleared up.

MR. BARNES: I will clear that up in a minute, just as soon as I finish with this subject. May we have the question read, your Honor? I understand your Honor overruled the objection?

THE COURT: Overruled.

MR. BARNES: May we have the question read?

(Question read.)

MR. BARNES: I think I got wound up there, your Honor. May I withdraw it and try another one?

THE COURT: All right.

Q BY MR. BARNES: Before you went to the vicinity of Vernon and Long Beach what was it that you heard the voice in the car say?

A That some of the boys that were in the car had gotten thrown into the Sleepy Lagoon.

Q Then, what was said by anyone there?

A I don't remember exactly what was said.

Q Betty, I do not expect you to remember the exact words, because that is very hard for anyone to do, but can you give us the substance of what was said, the meaning, the sense of what was said.

MR. VAN TRESS: That would be calling for a conclusion if she gives —

THE COURT: I think the last part of it somewhat ruined


455
the question. I think what Mr. Barnes meant to tell you, Betty, was it is awfully hard to say the exact words, but you can say what was said; just tell what was said, even if you cannot use the exact words; just what you remember.

A Well, all I remember was that they said they were — somebody had gotten thrown in the Sleepy Lagoon and they were going down to see what happened.

Q BY MR. BARNES: Was there anything said about where to go?

A Not that I heard.

Q After those words were spoken did you get in the car?

A Yes, sir.

Q Were there others in the car besides yourself?

A Yes.

Q How many others, as near as you can remember, Betty?

A About four.

Q Were there other girls in the car besides yourself?

A Yes.

Q How many other girls besides yourself?

A Two.

Q Two?

A Two others, I think.

Q And the driver of the car; is that right?

A Yes.

Q The driver of the car was Benny?

A Yes.


456

Q Benny Alvarez?

A Yes.

Q All right. You, Benny Alvarez and two other girls drove then to the vicinity of Vernon and Long Beach?

MR. VAN TRESS: We object to that as —

Q BY MR. BARNES: (Continuing) — is that right?

MR. VAN TRESS: He corrected it, making it a question.

THE COURT: I think I will sustain the objection to that. You might ask the direct question.

MR. BARNES: Yes, I will ask the direct question.

Q Where did you, Benny Alvarez and the two girls then go?

A To Vernon and Long Beach.

Q Now, in one of your previous answers, Betty, you mentioned the pool hall, and you said, I think, you knew where that was. Had you ever been in the building?

A No, sir.

Q Did you know whether or not they actually played pool in the building?

A No, I did not.

Q You know where the building is?

A Yes.

Q Is that a building that you know by the name of the pool hall?

THE COURT: Is that what you call it?

A Yes.


457

Q BY MR. BARNES: Is that what you call it?

A Yes.

Q About how far is that from — withdraw that. Is that on Vernon or is it on Long Beach?

A On Long Beach.

Q It is on Long Beach?

A Yes.

Q Is it on the west side of Long Beach or the east side?

A I think it is on the west side. Yes, it is.

Q It is on the west side of Long Beach?

A Yes.

Q Is it north or south of the street known as Vernon?

A North.

Q Is it near one of the corners or is it near the center of the block?

A Near one of the corners.

Q How far from the northwest corner of Long Beach Boulevard and Vernon is it?

A I couldn's say exactly.

Q I don't mean in feet, Betty, but I mean can you tell me whether it is right on the corner or whether it is a quarter of a block from the corner; just roughly, about how far; just give us an idea?

A It is not in the middle of the block from the corner.

Q You would say that it was not in the middle of the block. Would you say that it was closer to Vernon than it


458
would be to the next street north?

A Yes.

Q All right. After you got down there that evening to the pool hall state whether or not you — withdraw that. Did the car stop after you got near the pool hall?

A Yes.

Q Where did it stop, Betty?

A There is a vacant lot next door to the pool hall and it stopped in front of that.

Q And then what happened? How long did it stop there?

A I don't know exactly how long it stopped.

Q Can you tell whether it stopped a short time or a long time?

A Not very long.

Q You had no watch?

A No, sir.

Q Can you give us just an estimate of the time, Betty, as to whether it was an hour or two, or five or ten minutes or a quarter of an hour or whatever estimate you can put on it?

A About 15 or 20 minutes, I guess. I don't know.


459

Q When you say fifteen or twenty minutes, you guess, you mean that is just your best estimate of the time, is that right, Betty?

A Yes.

Q Did you see other cars there, Betty?

A Yes.

Q About how many other cars did you see there?

A Four or five, I imagine.

THE COURT: We are quite close to our recess time, Mr. Barnes.

MR. BARNES: Yes, your Honor.

THE COURT: I do not like to break in, but we have to do it some time or other. We will take our morning recess. The jury will keep in mind that you are not to talk about the case, and not to form or express any opinion. Keep in mind the admonition heretofore given.

MR. BARNES: May we have an order that no one but the officer in charge of this young lady talk to the young lady during the recess?

THE COURT: Yes, it will be so ordered.

(Recess.)

MR. SCHUTZ: If the court please, I have asked Mr. Barnes to approach the bench with me momentarily. I merely want to make an inquiry and we will not need the reporter.

THE COURT: All right, Mr. Schutz.


460

(Conference at bench between court and counsel.)

MR. BIRD: If the court please, at this time I move the substitution for and instead of the Public Defender of Attorney George E. Shibley, of Long Beach, to represent my clients Manuel Reyes —

THE COURT: Let me get these — all right.

MR. BIRD: Robert Telles, Joe Valenzuela and Richard Gastelum. Now, will the defendants I just named stand up, please?

(The four defendants standing.)

MR. BARNES: Maybe, before your Honor makes an order on that matter, it may be that we would like to say something. I think perhaps the jury had better be excused, your Honor, or else perhaps we should approach your Honor's bench.

THE COURT: Yes, you may do that, Mr. Barnes.

MR. BIRD: I don't know what he has in mind.

(Conference at bench between court and counsel.)

THE COURT: Will those boys stand up again, Robert Telles, Valenzuela, Gastelum and Reyes, you three boys want Mr. Shibley —

THE CLERK: Four.

THE COURT: You four boys want Mr. Shibley to represent you?

(The four defendants answered in the affirmative.)

THE COURT: Let the record show the four defendants indicated that they desired Mr. Shibley to represent them.


461

I would like to ask the members sitting in the jury box, whether any of you are acquainted or have been acquainted in any way with Mr. Shibley at any time? The reason I am asking the jury that at this time, you will recall we asked the jurors whether they knew any of the lawyers, and we ask it for that reason at this time.

(The jurors indicated in the negative.)

THE COURT: The substitution will be ordered at this time.

MR. BIRD: As to the matter of the daily transcript, I will ask that that matter be deferred until tomorrow morning, because it is barely possible Mr. Shibley will take over my other two clients at that time.

THE COURT: Yes, we will take care of that.

MR. BARNES: Shall we proceed, your Honor?

THE COURT: Yes, Mr. Barnes.

MR. BARNES: Now, I am going to move this microphone back a little closer to you so that your voice will carry. May we have the last question and answer, your Honor? I am not sure what it was.

(Record read as follows: "Q— About how many other cars did you see there? A— Four or five, I imagine.")

Q BY MR. BARNES: Now, before you got to Vernon and Long Beach, about how long had you been at Bertha Aguilar's house, Betty?

A About forty-five minutes.


462

MR. BIRD: What was the answer, Mr. Reporter?

MR. BARNES: Will you repeat that, Betty?

A About forty-five minutes.

MR. BARNES: Is that microphone on, your Honor?

THE COURT: It is not, that is why it probably is not working.

MR. BIRD: Did the witness say four or five minutes?

MR. BARNES: About forty-five minutes, I think she said. We will get it again when the contraption warms up.

Q You say it was about forty-five minutes, Betty?

A About that.

Q Were you in the car there all the time, or were you in and out of the car?

MR. VAN TRESS: That has been asked and answered. She said she got out and was standing on the side.

THE COURT: Overruled. You may answer.

A Where at, at the pool-room?

Q BY MR. BARNES: At Bertha Aguilar's house, Betty.

A I got out of the car.

Q Did others — withdraw that. Did Benny Alvarez get out of the car, too, or did he stay in the car?

A I didn't notice.

Q Going back now to Vernon and Long Beach, I think you said you saw four or five cars there, and you were there somewhere around fifteen minutes, a little more or less. After you had been there that length of time did your car


463
go some place else?

A We went with the other kids.

Q You left with the other kids. By that do you mean other cars besides yours left?

A Yes.

Q Where did you go then, Betty?

A Out to — we started to Sleepy Lagoon.

Q Well, before you got to Sleepy Lagoon did you stop anywhere?

MR. VAN TRESS: Object to the form of the question as assuming that they got there. She says we started to Sleepy Lagoon and the question is then before you got to Sleepy Lagoon. It is assuming something not in evidence.

THE COURT: You may be technically correct. Sustained.


464

Q BY MR. BARNES: Well, calling your attention to the matter of the gasoline station, did you stop at the gasoline station after you left Vernon and Long Beach?

MR. SHIBLEY: Just a moment. I object to that as leading and suggestive.

THE COURT: Overruled.

A Yes, we did.

Q BY MR. BARNES: About how far was the gas station from Vernon and Long Beach? Just roughly?

A A few blocks.

Q Did you see other cars stop there, or was your car the only one?

A I think others stopped.

Q Did you see what was done by your car or other cars when they went to the gas station?

A I didn't notice anything.

Q About how long were they there, Betty?

A Just a few minutes.

Q Then they started out from the gas station toward the Sleepy Lagoon?

MR. VAN TRESS: We object to counsel leading the witness.

THE COURT: Overruled.

A Yes.

THE COURT: The witness has already testified to that.

Q BY MR. BARNES: Now, did those cars go abreast of one another or did they go in a single file, in line, or how


465
did they go, did you notice?

A The car I was in followed a car in front. I don't know about the others in back.

Q Did you notice whether or not there were cars in back of yours?

A Yes.

Q Were there cars in back of yours or not?

A Yes, ours was the second car.

Q Yours was the second car in line; is that right?

A Yes.

Q Do you know whose car the first car was, Betty?

A No, sir.

Q Did you see who was in the first car?

A No, sir.

Q Now, when you were riding between the gas station and the direction of the Sleepy Lagoon, who else was in your car, if anyone, besides yourself, Benny Alvarez and the two girls?

A I think there was another boy; I am not sure if there was one or two.

Q Was there another girl besides that?

A Not that I can remember of.

Q Can you remember who the girls were that were in the car at that place?

A Yes.

Q Who were they?

A Delia Parra and Dora Barrios.


466

Q Delia Parra and Dora Barrios; is that right?

A Yes.

MR. VAN TRESS: We object to counsel repeating the answer.

THE COURT: Overruled.

Q BY MR. BARNES: Is that correct?

A Yes.

THE COURT: I want the record to show at this time the witness is dropping her voice and it is rather difficult to hear. I did not get the names until they were repeated by Mr. Barnes. Just talk a little louder, please.

Q BY MR. BARNES: How long have you known Delia Parra, Betty?

A A few months.

Q Do you know "Smiles" Parra?

A Yes.

Q Do you see him in the courtroom here? If you cannot see all the defendants, get up and look around. You can stand up there.

(Witness does as requested.)

A Yes, I see him.

MR. BIRD: I did not hear what the witness said.

(Answer read.)

MR. BARNES: Just sit down again so we can hear you, Betty.

THE COURT: Would you be more comfortable if you stood up?


467

A No, that is all right.

Q BY MR. BARNES: Where is "Smiles" Parra sitting? In which row is he, Betty?

A The second row.

Q In the second row. Now, as you look at the second row, whereabouts is he in the second row?

A He is the first one.

Q The first one in the second row from your left or right?

A My left.

Q The first one on your left in the second row; is that correct?

A Yes.

MR. BARNES: May we have the record show the witness has indicated Ysmael Parra, your Honor?

THE COURT: It will so indicate.

MR. BARNES: ? As we have numbered them here, he would be No. 6, because we counted from the other end opposite to that which the witness counted.

Q Did you see "Smiles" Parra that night?

A Yes.

Q Before you got to the gasoline station did you see him?

A Yes.

Q Was he in a car or on foot, Betty?

A I seen him both.


468

Q Both in a car and out of a car?

A Yes.

Q What car did you see him in, Betty?

A The car I was in.

Q He was in your car at the gas station?

A Yes, I think he was.

Q You are not real sure of that, is that it?

A Yes, he was there.

Q Was he in the front seat or the back seat, do you remember?

A He was in the back seat.

Q When he was out of the car where did you see him?

A Standing alongside of the car.

Q At what place, Betty?

A In front of Bertha's house.

Q At Bertha's house?

A Yes.

Q That was before you went to the vicinity of the pool hall?

A Yes.

Q At the pool hall did any of the occupants of your car get out of your car?

A I don't know if they did or not.

Q Were you in the front seat or back seat, Betty?

A Front seat.

Q Besides Benny Alvarez was anyone else in the front


469
seat?

A No, sir.

Q Was Benny driving the car when you got to the gas station?

A Yes.

Q Now, before you went to the gas station and while you were in the vicinity of the pool hall did you hear any words spoken by anyone as to where you were going?

A Yes.

Q What did you hear, Betty? Just tell us in your own words.

A That we were going out to the Sleepy Lagoon.

Q Do you know who said that?

A No, sir.

Q Was it somebody in your car or somebody outside of your car?

A Somebody outside of the car.

Q Was that person in another automobile or on foot somewhere?

A I think they got out of an automobile that drove up; I am not sure.

Q Some car drove up near your car while you were there at the pool hall?

A Bertha's.

Q At Bertha's?

A Yes.


470

Q Was it at Bertha's house that it was said that you were going to the Sleepy Lagoon?

A Yes.

Q Was anything said about what you were going to do when you got to the Sleepy Lagoon?

A Not that I know of.

Q Did you get to the Sleepy Lagoon after you left the gas station that evening?

A Yes.


471

Q Did you go directly from the gas station to the Sleepy Lagoon?

A Yes.

Q When you got to the Sleepy Lagoon what happened?

A They went past it.

Q I beg your pardon?

A We drove past it.

Q You drove past. You did not stop at the Sleepy Lagoon?

A No.

Q How far did you drive past the Sleepy Lagoon before you finally came to a stop? I am not asking the distance, now, that is as to the feet or miles, but where did you stop after you passed the Sleepy Lagoon?

A At a ranch house.

Q At a ranch house. Is that one of the ranch houses shown on the map that I have shown you here this morning?

A I imagine so.

Q When you say you imagine so, do you mean by that that you believe it is?

A I believe it is.

Q About how far did your car stop from the ranch house, Betty?

A Quite a distance away.

Q When you say quite a distance, can you — do you see any distance around the courtroom here that is about


472
the distance, or is it further or a shorter distance?

A I will say from about the wall to where I am sitting.

MR. BARNES: Does your Honor have that distance? I know your Honor has some distances here.

THE COURT: The length of the courtroom is 42 feet. There is about 3 feet between the witness and the wall back of her, so it would be approximately 39 feet, within a matter of a very few inches.

MR. BARNES: Yes, your Honor.

Q When your car stopped there did other cars stop also?

A Yes.

Q About how many other cars besides yours went to that vicinity that night, Betty, just roughly?

A I don't remember, but not all of them went.

Q Did you see where the others went?

MR. BIRD: Pardon me. I might suggest, the last question is somewhat ambiguous in that I don't know whether he means by the "vicinity" the general vicinity of the entire Williams ranch or the immediate vicinity of the ranch house. I think if you will clear that up.

THE COURT: We will clear that up.

Q BY MR. BARNES: When you answered that last question and said that vicinity, did you mean the vicinity of the ranch house that you have mentioned?

A No, I meant some of the cars stayed at the lagoon and


473
the rest went on.

Q About how many cars stayed at the lagoon, Betty?

A I would say about two.

Q About how many cars went on to the ranch house?

A Three or four; I don't know.

Q You didn't count them?

A No.

Q Now, between the time that you got to the Sleepy Lagoon and the time you got to the ranch house, did anybody say anything about lights on the cars?

MISS ZACSEK: Just a moment, may it please the court. I object to that on the ground that it is leading and suggestive in this, that I am well aware of the court's definition of the leading question, but I am also aware that the question is beginning to suggest and has for some time, the questions as propounded, the answers, because it brings subjects to the mind repeatedly, perhaps, which would suggest the answer.

THE COURT: There is no objection to bringing subjects to the witness' mind. In fact, it is rather difficult to question the witness without bringing the subject matter to the witness' mind. I do not think there is any objection to that form of question. It will be overruled.

MR. BARNES: May we have the question read, your Honor?

(Question read.)

A Nobody in my car did.


474

Q BY MR. BARNES: Did you hear anybody in any other car say anything about that, Betty?

A No.

MR. VAN TRESS: I object to that as hearsay —

THE COURT: Overruled.

MR. VAN TRESS: No proper foundation laid. The question is between the lagoon and the ranch house. She has testified that two cars stopped at the Sleepy Lagoon, and it would be hearsay as to the two cars, to the occupants of those two cars that stopped at the Sleepy Lagoon.

MR. SHIBLEY: The further objection also, it is indefinite as to time.

THE COURT: The objection is overruled.

MR. BARNES: I think the witness said "No," your Honor.

THE COURT: The answer may remain.

Q BY MR. BARNES: Did you answer that question, Betty?

MR. SHIBLEY: I object to that. The reporter is the best evidence as to whether she answered it.

MR. BARNES: May we have the best evidence on it, then, your Honor? I thought I heard an answer.

(Answer read.)

MR. BARNES: My ears did not deceive me that time.

MR. VAN TRESS: Pardon me, Mr. Reporter, wasn't there an answer that nobody said anything about lights in my car?

THE COURT: That was the answer to the previous question.


475

Q BY MR. BARNES: Now, Betty, when you got to the vicinity of the — I withdraw that. Betty, I call your attention to the Delgadillo house, that is this one we marked here with the letters "Del." With regard to that house, about how far from that house was it that your car stopped?

A I can't tell.

Q You can't tell, is that it?

A Yes.

Q Are you sufficiently familiar with that map that you can point out the place where your car was stopped?

A No.

MR. SCHUTZ: Did the witness answer that?

THE COURT: The witness answered no.

MR. BARNES: The witness' answer was "No."

MR. SCHUTZ: Thank you.

THE COURT: Betty, when you turn your mouth away from the microphone your voice does not go in there. In other words, you have got to put your voice right into the microphone. When you talk at it sideways it does not get into it.

THE WITNESS: All right.

MR. BARNES: Perhaps we can get at it this way:

Q Do you recognize this house in particular on this map, Betty?

MR. SHIBLEY: I object to that as being leading and


476
suggestive.

THE COURT: Overruled.

A I couldn't even tell you what the house looks like.

MR. SCHUTZ: May we have the answer, Mr. Reporter?

MR. BARNES: "I couldn't even tell you what the house looks like" was the answer.

Q Now, you said you stopped about approximately the distance to the back wall of the courtroom away from some house there?

A Yes.

Q With regard to that house, can you tell us whether the house had any lights in it?

A There was a few lights but it wasn't —

Q I beg your pardon?

A There was a few lights but it wasn't very bright.

Q A few lights. After the cars stopped there at that house, will you state whether or not any one — you saw anyone leave the cars in which you had been riding and go towards the house with the lights?

A I didn't see anybody go towards the house.

Q What did you do after you got there, Betty?

A I got out of the car.

Q Where did you go?

A I stayed by the car a few minutes because Benny was pushing the car; it had stopped.

Q Benny Alvarez?


477

A Yes.

Q And the motor was off at that time, was it?

A Yes.

Q It was not running?

A No, it had died.

Q It had died. Did anybody help Benny push the car to get it started?

A Somebody was pushing it; I don't know who.

Q Did you hear the car start to run again?

A I don't remember.

Q Did anybody get out of the car with you, Betty?

A Yes.

Q Who got out?

A Dora Barrios was with me.

Q Dora Barrios?

A Yes.

Q Was she in your car?

A Yes. I don't remember seeing her getting out of the car, but she was out.

Q You saw her after she was out of the car, did you?

A Yes.

Q Did you go anywhere with Dora there?

A We started to walk towards the house.

Q And did you hear any noises in the vicinity of the house, Betty?

A Yes.


478

Q Describe what you heard.

A It sounded like glass breaking and people were hollering.

Q Did you hear women's voices?

A Yes.

Q When you say people were hollering, can you tell us the kind of hollering it was?

MR. VAN TRESS: I object to that as calling for a conclusion of the witness.

MR. SCHUTZ: I object to that as calling for a conclusion.

THE COURT: Overruled.

A No.

Q BY MR. BARNES: Did you see the direction from which the sound of breaking glass came?

MR. SHIBLEY: I object to that as calling for a conclusion of the witness as to which no person can give an answer.

THE COURT: Overruled. You may answer.

A I didn't see any glass —

THE COURT: The question was, did you hear from what direction the sound came.

MR. SCHUTZ: I thought counsel said, "Did you see."

THE WITNESS: He said, "Did you see." I could not see a sound.

THE COURT: Maybe I misunderstood the question. May I have the question, Mr. Kennelly?


479

(Question read.)

MR. SHIBLEY: I renew my objection.

THE COURT: I think your objection is good.

Q BY MR. BARNES: Did you hear where the sound came from of breaking glass?

A It sounded like it was coming from the house.

Q When you heard the sound of breaking glass did you look?

A Yes.

Q What did you see, Betty?

A Nothing.

Q Did you see anybody in the roadway there lying down?

A Yes.

Q Who was with you then, Betty?

A Dora Barrios.

Q What attracted your attention to the person lying down in the roadway?

A Dora.

Q She said something to you there, did she?

A Yes.

Q What did she say to you?

MR. BIRD: Objected to as hearsay.

MR. BARNES: We submit it is a part of the res gestae now, your Honor.

THE COURT: Sustained.

Q BY MR. BARNES: After she spoke to you where did you


480
go?

A Towards the person that was lying on the ground.

Q Where was the person lying on the ground, Betty?

A I don't know; just lying on the ground.

Q I mean was it — can you tell us where he was? I know he was on the ground, but I mean was he in a yard of a house or out in the roadway or out in a field, or where was he?

A It looked like a roadway.

Q Was he closer to the house that you were about 39 feet from when your car stopped, or farther away?

A He was closer to the car that I got out of than he was to the house.

Q Was he between your car and the house somewhere?

A Yes.

Q You went over to that person, did you?

A Yes.

Q Was anybody else there near him when you went there, Betty?

A No.

Q Was he making any sound?

A He was groaning.

Q How was he lying on the ground?

A Face down.

Q Face down on the ground; is that right?

A Yes.


481

Q What did you do then, Betty?

A I turned him over.

Q Did you look at him?

A Yes.

Q What did he look like? Describe him to us. I am not talking about his facial appearance, as to whether he looked like me or somebody else, but tell us whether you saw any blood, bruises or marks, or whatever you saw.

A He had blood on his face.

Q Whereabouts on his face, Betty?

A Around his mouth.

Q Did you speak to him?

A Yes.

Q What did you say to him?

A I don't remember.

MR. VAN TRESS: I object to that as —

MR. SCHUTZ: I object to that on the ground it would be hearsay.

THE COURT: Overruled.

Q BY MR. BARNES: What did you say to him?

A I don't remember.

Q Did he answer you?

A No.

Q Did he make any noise after that?

A He just kept groaning.

Q He kept on groaning?


482

A Yes.

Q When you turned him over to look at him, did he appear to you to be conscious or unconscious?

MR. SHIBLEY: Just a minute. I object to that as asking for a conclusion of the witness.

THE COURT: Overruled. You may answer.

A I imagine that he was conscious, for he was groaning.

MR. SHIBLEY: I object to that.

THE COURT: How did he look to you? Did he look to you as though he was unconscious or not?

A No, he didn't look like he was unconscious.

Q BY MR. BARNES: Did you try more than once to talk to him, Betty?

A Yes.

Q Did you pick him up at all?

A Yes.

Q What did you do, then?

A Just picked his head up off the ground.

Q You held his head in your arms?

A Yes.

Q When you did that did you speak to him?

A Yes.

Q Did he at any time during that night say anything to you?

A No.

Q He uttered no word at all, is that it?


483

A No.

MR. SCHUTZ: That has been asked and answered, if the court please.

THE COURT: No, it has not been. Overruled.

MR. SCHUTZ: Counsel asked if at any time he said anything to her, and then she answered, "No," and the next —

THE COURT: This last question covers the entire evening. The former question did not. The answer may remain in the record.

Q BY MR. BARNES: What did you do then, Betty?

A I don't know. I couldn't say what I did exactly.

MR. SCHUTZ: May we have the answer?

MR. BARNES: "I couldn't say what I did exactly."


484

Q As near as you can tell us, Betty, what next occurred?

A They decided to leave.

Q Did you hear anybody say anything about leaving?

A Yes.

Q Do you know who it was that said anything about leaving?

A No.

Q Before you left and after you had left the man who was lying there in the road with blood on his face, did you look back at him?

A Yes.

Q Did you see anybody near him?

A Yes.

Q What did you see the person near him do to him?

A It looked like he was standing over him.

Q Did you see anything in the hands of the person standing over him?

MR. VAN TRESS: Just a moment. Is that answer, "It looked as if someone was standing over him"?

MR. BARNES: Yes, I think so.

(Answer read.)

MR. VAN TRESS: What was the last question, Mr. Reporter?

(Question read.)

MR. VAN TRESS: We object to that as assuming something not in evidence, because the girl said it appeared or looked as if —


485

MR. SHOEMAKER: That is what observation is.

THE COURT: Overruled.

MR. SHIBLEY: The same objection.

THE WITNESS: Would you ask the question again?

Q BY MR. BARNES: Did you see anything in the fellow's hands that was standing over the man lying there, Betty?

MR. VAN TRESS: That is assuming that it was a man. I object to it.

MR. SHIBLEY: The same objection.

MR. SCHUTZ: I join in that objection.

THE COURT: You will have to say a person to comply with the objection.

MR. BARNES: Wait a minute before we go into that.

Q Did this person lying in the road appear to be a man or a woman?

A He appeared to be a man, I would say.

Q Did he appear to be a young man or an old man?

A Rather young.

Q Did he appear to be a Mexican boy or some other nationality?

MR. SHIBLEY: I object to that as being immaterial.

THE COURT: Overruled.

MR. SHIBLEY: Furthermore, asking for a conclusion of the witness.

THE COURT: Overruled. I think counsel will bear in mind that a witness may always testify to appearances under


486
that case of People v. Manoogian, 141 Cal. If counsel will read that we will save some objection along that line.

THE WITNESS: Shall I answer the question?

Q BY MR. BARNES: Yes, you answer the question. The court says you may answer.

A Will you ask it again?

Q Did the young man lying in the road appear to be a Mexican lad or some other nationality?

A I didn't take particular notice.

MR. SCHUTZ: I am sorry; I did not get the answer.

A I did not take particular notice.

Q BY MR. BARNES: Going back again —

MR. SHIBLEY: If your Honor please, I am going to make another objection at this time, as to Mexican nationality.

THE COURT: The question was not whether he was a Mexican, but the question was whether he appeared to be a Mexican.

MR. SHIBLEY: I think the court will take judicial cognizance it is impossible to tell from the appearance of a man what the particular nationality may be.

THE COURT: I am not so sure that is true. I think if counsel and I go down the street and our attention is attracted across the street to somebody we can see, we can say that that person appears to be a Mexican. There are certain characteristics which indicate a person may be a Mexican. We do not say that he is absolutely, but he appears to be.


487

MR. SHIBLEY: If your Honor please, the objection that I make, without being captious, goes to the use of the word "nationality" there. If it is to mean he is a person of Mexican extraction, that is something else.

THE COURT: Obviously it could not refer to anything else. The jury will so understand.

MR. BARNES: I feel, probably, your Honor, that counsel is at a little disadvantage. We have been here for some days now, and counsel for the defense and everyone connected with the case thus far, has been referring to the defendants and others as persons of the Mexican nationality.

MR. SHIBLEY: If your Honor please, that is exactly what I am objecting to. These men have a right to be treated like Americans. I think the most of them are American born, American nationals. I object to that question.

THE COURT: I might say this to counsel: Whether they are citizens of the United States or not they are entitled to just as many rights while they are here on trial, even though they actually may be foreigners. That has been gone over. That is the difficulty of counsel coming into the middle of a case. That has all been covered, and it was called to the jury's attention. All right, Mr. Barnes.

MR. BARNES: I have forgotten where I was, your Honor.

THE COURT: You were about to propound a question as to the man's apparent nationality. You also asked the question whether the man standing up had anything in his hand.


488

MR. BARNES: Thank you, your Honor.

Q BY MR. BARNES: Now, going back to the young man that you saw lying in the road and the man that was standing up near him, did you see whether or not the man that was standing up there at that place had anything in his hand?

MR. SHIBLEY: Just a minute. Your Honor, I make the same objection that was made before, as to whether it was a man or woman. That assumes facts not in evidence.

THE COURT: I do not think we have identified whether the upright individual was a man or a woman.

Q BY MR. BARNES: Did the person standing near the young man that was lying down appear to you to be a man or a woman, Betty?

A He appeared to be a man.

Q Now, will you tell us whether or not the man standing there had anything in his hand?

A It looked as though he had something in his hand.

Q Can you tell us what it looked like he had in his hand?

A Some sort of a board.

Q Kind of a board?

A Yes, it looked something like a club.

MR. SHOEMAKER: What was the last answer, Mr. Perry?

(Answer read.)

Q BY MR. BARNES: Did you see that man standing there with what looked like a club in his hand do anything to the


490
May we have the young men in the second row stand up so she can see the faces of those in the second row? All of them, if the court please?

(Defendants referred to did as requested.

MR. BARNES: Now may we have those in the last row stand up? She can see the faces of the defendants in the first row. That is only part of them in the last row, if the court please.

(Defendants referred to did as requested.)

THE WITNESS: I see him.

Q BY MR. BARNES: You see him?

A Yes.

Q Where is he, Betty?

A He is the third one on my right.

Q The third one from the end on your right?

A Yes.

MR. BARNES: May the record show the witness has identified Joe Ruiz?

THE COURT: Indicating Joe Ruiz. May I say also, for the purpose of the record, these defendants are seated in rows of chairs — you may be seated, Betty.

(Witness resumes seat.)

THE COURT: (Continuing) — and at times those in the front obscure the view of those in the rear.

MR. SCHUTZ: May the record show she identified Joe Ruiz — I think the record should reflect she identified Joe


491
Ruiz as the one she describes as "Chappy"?

THE COURT: That is correct.

THE WITNESS: May I stand?

THE COURT: Yes. May I say this young lady has just had a shot and she has stated she would be a little more comfortable if she stood. That will explain why she is standing.


492

THE COURT: Don't be embarrassed at all. Just talk into it, and you don't have to look at Mr. Barnes.

Q BY MR. BARNES: Did you see "Chappy" there that night?

A I seen him that evening, but I didn't see him at the ranch.

Q Where did you see him that evening, Betty?

A I think it was over by the pool hall.

THE COURT: May I interrupt just one moment?

MR. BARNES: Yes, your Honor.

(Short interruption on other court business.)

THE COURT: You may proceed.

Q BY MR. BARNES: Now, Betty, I am going back for a moment to the time you saw the man with the club strike at the man that was down. Were you close enough to the man with the club to tell who he was?

MR. SHIBLEY: Just a moment, please. I object to that as assuming facts which the witness has not related definitely. The witness did not definitely identify anything as a club, and did not definitely say that anyone was beating him there, and counsel is, in effect, testifying.

THE COURT: The statement was that it was a board that looked like a club. Perhaps you had better reframe the question.

Q BY MR. BARNES: Betty, when you saw the man with


493
the board that looked like a club standing over or near the man that was down, and swinging the board that looked like a club in the direction of the man that was down lying there on the ground, were you close enough to the man with the board that looked like a club to see who he was?

A No, sir.

MR. SHOEMAKER: What is the answer?

A No.

Q BY MR. BARNES: Did you notice how many blows you saw the man with the board that looked like a club strike?

MR. SCHUTZ: Now, if the court please, to which we object upon the ground the witness has not heretofore testified to any blows or any number of blows being struck. She testified it looked as if he struck, that was her testimony.

MR. BARNES: That is all anybody can testify to, your Honor.

MR. VAN TRESS: I object to the form of the question as assuming something not in evidence.

MR. SHIBLEY: We make the same objection.

THE COURT: Did you see one blow struck by this man?

A I seen him swing the club.

THE COURT: You don't know whether it hit anybody or not?

A No.

Q How many times did you see him swing the club?


494

A More than once; I didn't notice.

THE COURT: You didn't count them?

A No.

THE COURT: I see.

MISS ZACSEK: Mr. Reporter, was that answer —

(Record read.

Q BY MR. BARNES: When you saw the man with the board that looked like a club swing it, will you state whether or not it appeared to you that he was swinging it — withdraw that. Betty, take this pointer and use that in your hand and show us how the man that had the board that looked like a club swung it.

A He swung downwards.

Q Well, can you illustrate what you saw him do there?

A Well, I don't know exactly how he did it. I don't care to illustrate.

MR. VAN TRESS: Why don't you take the position of the man on the ground and show it?

MR. BARNES: Your Honor, I do not think this is any place to try to be funny.

THE COURT: I did not hear counsel's remark, but if Mr. Van Tress wants somebody operated upon, maybe he had better try it.

MR. BIRD: Perhaps I was responsible. I said it in an undertone to Mr. Barnes.

THE COURT: Mr. Bird, your undertones reach this bench


495
very audibly. I heard what you said but I did not hear what Mr. Van Tress said.

MR. BIRD: I will keep that in mind, and not indulge in any further remarks with Mr. Barnes under those circumstances.

MR. SCHUTZ: May the record show I made the observation, and I was in good faith, as far as Mr. Barnes was concerned —

THE COURT: I did not hear what your observation was.

MR. SCHUTZ: I suggested that he take the position of the man on the ground and make a demonstration for the purpose of the record.

MISS ZACSEK: I suggest, may it please the court,—

THE COURT: I don't think counsel should suggest what some other person should do.

MR. BIRD: I think what Mr. Barnes is after, in all seriousness, is whether the club was swung in the general direction of the man who was on the ground, and the witness merely swinging the club here in the courtroom, without some particular object in view, we only get what the witness is trying to tell us.

MR. BARNES: If there is a question pending I will withdraw it so that we can get some more evidence before we have lunch.

THE COURT: Let's proceed. We are not getting anywhere with a rather uninteresting conversation.


496

Q BY MR. BARNES: Betty, did the man with the board that looked like a club swing it in the general direction of the man that was lying on the ground?

A Yes.

Q Now, Betty, did you hear anything out there that night that sounded like a shot?

A No, sir.

Q With regard to the noise that you heard coming from the direction of the house where you saw the lights, did you hear anything that sounded like screams?

A It sounded like screams.

Q Now, while you were there with this man that was lying on the ground, before you went away, Betty, did anyone come by you and say anything to you?

A Yes.


497

Q And in what direction did the persons who did come by and state whatever they did say to you?

A Towards the cars.

Q When you say towards the cars you mean towards the group of cars that were out with you?

A Yes.

Q What did this person say to you?

MR. VAN TRESS: I object to that as hearsay.

THE COURT: Overruled.

A Somebody asked me who he was, who the person on the ground was.

Q BY MR. BARNES: What did you say?

A I didn't know.

Q Then what was said?

A I said something about leaving him alone or something, I don't know, but they went on.

MR. VAN TRESS: I move to strike the answer, if the court please, as incompetent, irrelevant and immaterial and hearsay.

MR. SHIBLEY: The same objection.

THE COURT: Motion denied.

Q BY MR. BARNES: Did you recognize the person you saw lying there on the ground as anyone you had previously known?

A No.

Q Now, Betty, did you ever hear of the 38th Street gang?


498

A Yes.

Q How long ago did you hear about that?

A Ever since I can remember.

Q Do you belong to the 38th Street gang?

A No.

Q Do you know any persons who do?

A Pardon?

Q Do you know any persons who do?

MR. VAN TRESS: I object to that as no proper foundation, in that there is nothing to show that she ever has been in contact with anybody purportedly a member, and it is incompetent, irrelevant and immaterial.

THE COURT: I think perhaps the preliminary question should be amplified a little beyond the mere point of having heard of such a gang.

Q BY MR. BARNES: Do you know where the 38th Street gang is generally found?

MR. VAN TRESS: I object to that as assuming something not in evidence, that they can be generally found, assuming something not in evidence.

THE COURT: The objection is sustained to that particular question.

Q BY MR. BARNES: Well, you say you have heard of the 38th Street gang. Have you ever seen the gang?

MR. VAN TRESS: I object to that, if the court please —

THE COURT: Overruled.


499

MR. VAN TRESS: As calling for a conclusion of the witness and incompetent, irrelevant and immaterial.

MR. SHIBLEY: The same objection.

THE COURT: You may answer.

A Will you give me the question again, please?

Q BY MR. BARNES: Have you ever seen the gang, Betty?

A I have seen members of the gang.

Q Do you see any members of the gang here in court?

MR. VAN TRESS: I object to that as calling for a conclusion, it is not the best evidence and it is hearsay.

THE COURT: Overruled.

MR. SHIBLEY: I make the further objection that this whole line of questioning assumes facts not in evidence, that there is such a gang.

MR. SHOEMAKER: Well, you have not been here, Mr. Shibley.

MR. VAN TRESS: Well, we do not consider the proof is sufficiently established.

THE COURT: I think counsel do not differentiate between the question as a group being reputed to be a gang, and the group that actually is a gang.

Q If somebody speaks to you and mentions the 38th Street gang you have certain people in mind, haven't you?

THE WITNESS: Not necessarily.

THE COURT: In other words, it means a certain group of people.

MR. VAN TRESS: May the record show the answer was "Not


500
necessarily", in event the reporter did not get it?

MR. BARNES: He got it.

MR. SHIBLEY: I object to the court's further question as being leading and suggestive.

THE COURT: Overruled.

MR. SCHUTZ: I think perhaps, if the court please, counsel might frame his question along the lines the court indicated, the purported gang, or somebody reputed to be a member of the gang, we might eliminate some questions.

MR. SHOEMAKER: Your Honor, isn't there a question pending now before us?

THE COURT: I think not. The witness has already testified she has heard of such a thing as the 38th Street gang and you may start from there.

Q BY MR. BARNES: What persons have you heard are reputed to be members of the 38th Street gang?

MR. SHIBLEY: The same objection to that.

THE COURT: Overruled.

MR. VAN TRESS: We will object to it on the ground there is no foundation, in that it does not show this witness is a member of any particular locality or lives in, at or near any such purported headquarters of the gang, and she is not qualified to give an opinion at this time.

MR. SHIBLEY: And I further make the objection the apparent reason for such a question is to try to color the minds of the jury by such a suggestion.


501

THE COURT: Both objections are overruled.

MR. BARNES: I think the witness may have forgotten the question.

THE COURT: Will you repeat it, Mr. Kennelly?

(Question read.)

A I don't know how to answer that.

THE COURT: We had better have another question, then.

Q BY MR. BARNES: By the way, did you ever live in that vicinity, Betty?

A Yes.

Q How long did you live there, I mean in the vicinity of Vernon and Long Beach, or thereabouts?

A I have lived there on and off all my life.

MR. SCHUTZ: All of your life was the answer?

MR. BARNES: "On and off all of my life."

MR. SCHUTZ: Thank you very much, Mr. Barnes.


502

Q BY MR. BARNES: Do you know Andrew Acosta when you see him?

A I don't recognize the name.

Q Do you know Eugene Carpio when you see him?

A Yes.

Q Do you see him in court?

A Yes.

Q Where does he sit?

A The third person of the front row on my righthand side.

Q Do you know Joe Carpio when you see him?

A Yes.

Q And he sits next to Eugene over in the front row too, does he?

A Yes.

Q Have you ever heard whether or not those two boys, Eugene and Joe Carpio, are members of the 38th Street gang?

MR. VAN TRESS: I object to that —

MR. SCHUTZ: If the court please, —

THE COURT: The objection is sustained.

Q BY MR. BARNES: Did you see Eugene Carpio on the night of the trip to the Williams ranch?

A I don't remember seeing him there.

Q How about Joe Carpio, did you see him?

A No, I don't remember seeing him.

Q Do you know Manuel Delgado?


503

A Yes.

Q Did you see Manuel Delgado that night?

A I don't remember seeing Manuel there.

Q Do you know Richard Gastelum?

A No.

Q Do you know Edward Grandpre?

A No.

Q Do you know a boy whose nickname is "Turkey"?

A No.

Q Do you know —

MR. BIRD: Pardon me. May the record show counsel had in mind —

MR. BARNES: Edward Grandpre.

MR. BIRD: Thank you.

Q BY MR. BARNES: Do you know Henry Leyvas?

A Yes.

Q Do you see him in the courtroom?

A Yes.

Q Did you see him that night?

A I seen him that evening.

Q Where did you see him, Betty?

A I think it was near the pool hall.

Q Was that before or after you had been to the Williams ranch?

A Before.

Q Did you see what he was doing there?


504

A No, I did not.

Q Did you hear him speak?

A I don't remember him saying anything.

Q Did you see him at any other time that night?

A I might have; I don't remember.

Q Do you know John Matuz?

A I don't recognize the name.

Q Do you know Jack Melendez?

A Yes.

Q Did you see him that night?

A I don't remember seeing him.

Q Do you know Lupe Orosco?

A It sounds familiar but I cannot place it.

Q Do you know Joe Herrera?

A I do not recognize the name.

Q Do you know Angel Padillo?

A Yes.

Q Did you see him that night?

A Yes.

Q Where did you see him, Betty?

A Seated in his car.

Q Where was his car, Betty?

A I think he was driving past the poolroom when I seen him.

Q Did his car stop?

A I don't remember if his car did or not.


505

Q Did you see him at any other time that night?

A Not that I remember of.

Q Did you see anybody with him in his car?

A There was someone in his car, but I don't know who it was.

Q Do you see him in the courtroom here?

A Yes.

Q Where does he sit, Betty?

A He is the second boy in the second row on my lefthand side.

MR. BARNES: May we have Angel Padillo stand up, please?

(Defendant Angel Padillo does as requested.)

Q Is that the boy you refer to?

A Yes.

Q I think you said you saw him in his car. Was he driving it or somebody else driving it?

A He was driving it.

Q Angel Padillo was driving?

A Yes.

Q Did you see anyone with him that night? Did you see whether or not he had anyone with him in the car?

A No.

Q Any boy of any kind?

A No.

Q On the way back from the ranch — withdraw that.


506
After you left the ranch that night where did you go, Betty?

A We went back past the pool hall.

Q And did you stop there?

A Yes.

Q About how long?

A Not long; a few minutes.

Q Did anyone get out of your car there?

A I don't remember if they did or not.

Q Now, on the way back to the pool hall from the ranch was anything said by any of the occupants of your car about any injuries to any persons out there at the ranch?

MR. VAN TRESS: I object to that, if your Honor please, as hearsay, and on this ground: That in the event the theory of the prosecution is to prove a conspiracy, the object of the conspiracy, if it was to go out and beat up someone, had been accomplished, and any conversations after the accomplishing of the conspiracy would not be in furtherance nor would it be evidence tending to prove the objects of the conspiracy.

THE COURT: That objection would not be sound for the reason where a conspiracy is organized for the purpose of committing a particular unlawful act, it generally and at least not infrequently is the fact, as a matter of law, that conspiracy does not terminate with the performance of the


507
unlawful act, but continues on and beyond or to the extent of covering the period of departure and period of flight. I think counsel will recall in the case of a robbery which was committed, the robbers fled and in fleeing killed somebody, and it was held that that killing was in the perpetration of the robbery.

MR. VAN TRESS: But in this case there was no killing after the people left the ranch.

THE COURT: I am sorry; I do not think you heard what I said. Objection overruled.

MR. BIRD: Pardon me, your Honor. I think the question was: did you hear anybody say something about somebody getting hurt out there. That sounds as though it might be calling for a confession, a confession or admission which, of course, would not be binding upon those not present, if that is correct.

MR. BARNES: There is another reason.

MR. BIRD: Very well.

THE COURT: Even if that were so, the confession rule would apply where the person testifying to the confession or, at least some person present at the time of the confession, was in some position of authority, and would not refer to an incident with a private individual or some group present.

MR. SHIBLEY: The further objection that there is no showing by the witness' statement heretofore as to what


508
persons were there at the pool hall, whether they were the persons who had been at the ranch or not.

THE COURT: I think counsel has entirely missed the question. The question is not what occurred at the pool hall at all. Overruled. May we have the question again, Mr. Perry, as the young lady has lost it?

(Question read.)

A Not that I know of.

Q BY MR. BARNES: To refresh your memory a little, Betty, do you recall making a remark in the car on the way back to the pool hall and somebody telling you to shut up?

A No.

Q You don't recall that?

A No.

Q Do you know Rubin Penia?

A I don't recognize his name.

Q Do you know Manuel Reyes?

A No.

Q Do you know Victor Segoba?

A I don't know them by those names.

Q Well, it may be I will have to get at it in a different way. I call your attention to the man sitting on the righthand side of Henry Leyvas, in the second row. Can you see him?

A Yes.

MR. BIRD: On the witness' right or Henry Leyvas' right?


509

MR. BARNES: On Henry Leyvas' righthand side.

Q Do you know that man?

A No.

Q I call your attention to the back row, to the man at the extreme right hand of it as you look at the row.

MR. VAN TRESS: Pardon me, counsel. The one she could not identify has not been named here in court. I do not think he was — Will you stand up?

(A defendant does as requested.)

MR. VAN TRESS: Her attention was called to this man now standing, John Matuz, but I do not think his name went into the record as the one she was unable to identify.


510

MR. BARNES: I think counsel is mistaken. Before I asked that question — when I got down in the list to John Matuz, I asked her if she knew John Matuz, and she said, "No."

MR. VAN TRESS: Then, counsel repeated the question by asking —

MR. BARNES: I am now directing her attention to the particular individual, to make sure it is not a question of a mere matter of name, in view of the witness' previous answer.

MR. VAN TRESS: My only object was to have him identified, your Honor.

MR. BARNES: All right. Perhaps I can avoid that in the furture by following a little different procedure. Now, may I ask Mr. Rubin Penia to stand up?

(Defendant Penia does as requested.)

Q BY MR. BARNES: Do you know that boy?

A No.

MR. BARNES: May we have Manuel Reyes, sitting next to him, stand?

(Defendant Reyes does as requested.)

Q Do you know that boy?

A No.

Q Do you know Victor Segoba?

MISS ZACSEK: Stand up, Victor, please.

(Defendant Segoba does as requested.)


511

A No.

MR. BARNES: May we have the boy next to him stand up?

(Defendant referred to does as requested.)

A No.

Q BY MR. BARNES: You don't know him?

MR. BIRD: Robert Telles.

MR. BARNES: Yes, Robert Telles.

Q Do you know Victor Thompson, who sits next to Robert Telles? Can you see him?

MR. BIRD: Stand up.

(Defendant Robert Telles does as requested.)

Q BY MR. BARNES: Do you know him?

A Yes.

Q Did you see him that night at —

MR. BIRD: Pardon me. What name did you know Victor under?

A Bobby Lavine.

Q BY MR. BARNES: You knew Victor Thompson as Bobby Lavine, did you?

A Lavine.

Q Did you see Victor Thompson or Bobby Lavine, otherwise known as Bobby Lavine, that night?

A Yes.

Q Where did you see him, Betty?

A After we came back from the Sleepy Lagoon.

Q And where?


512

A He was walking down the street.

Q In what place? Near what place?

A On Vernon.

Q Well, how far away from Vernon and Long Beach would that be?

A Well, he was near the gas station.

Q Can you tell us whether that would be a block or two or three, or approximately how far from Vernon and Long Beach?

A About two and one-half blocks.

Q Was he walking in the direction of Vernon and Long Beach or in the opposite direction?

A I think he was walking in the opposite direction.

Q Do you know Joseph Valenzuela, who sits next to Bobby Lavine, on Bobby Lavine's right?

A No.

Q And the man next to Joseph Valenzuela, on his right, is Manuel Delgado; do you know him?

A No.

Q Do you know Henry Ynostroza?

A Yes.

Q Did you see Henry Ynostroza that night?

A Yes.

Q Where?

A I think he was sitting in the car I was in.

THE COURT: I did not hear the last answer.


513

(Answer read.)

Q BY MR. BARNES: Was that before you went to the Williams ranch or afterwards?

A Before we went. I am not quite sure.

Q You are not sure whether he was in the car —

A No.

Q (Continuing) — with you, when you went or not; is that right, Betty?

A Yes.

Q Did you see him out there at the Williams ranch?

A I am not sure whether I seen him or not.

Q Now, when you left the Williams ranch did anybody come back with you that had not gone out with you?

MISS ZACSEK: You are referring now to the car?

MR. BARNES: Yes, I am referring to the car the witness was in.

Q When you decided to leave the Williams ranch was there anybody else in your car that had not been there with you when you went out?

A I think — I am not sure, but I think it was Henry that was in the car.

Q Henry Ynostroza?

A Yes.

Q It is your best recollection that Henry Ynostroza came back with you from the Williams ranch; is that it?

A I am not positive.


514

Q I see. Now, how about anybody riding on the runningboards? Did you notice anybody riding on the runningboards from the Williams ranch down as far, we will say, as the Sleepy Lagoon?

A No.

Q About how many people did you see out there at the Williams ranch all told that night?

MR. VAN TRESS: We object to that as too general.

THE COURT: Overruled.

A Do you mean altogether, people at the ranch and all?

Q BY MR. BARNES: Yes.

A I couldn't say how many.

Q You mentioned there were other cars that went to the ranch with you and parked in the vicinity of where you parked that night near the ranch?

A Yes.

Q Did you notice whether or not those cars had other people inside of them?

A Yes, they had people in them.

Q Did you notice whether or not the cars had people on the runningboards?

A No, I didn't notice.

Q You didn't notice that?

A No.

Q Did you see any persons walking through the fields there that night?


515

A No.

Q When you got back to the vicinity of the pool hall after leaving the Williams ranch, did anyone come up to your car and say anything?

A Not that I remember of.

Q I think you said you did not get out of the car? Is that right? You stayed in the car there?

A Where?

Q At the pool hall, after you got back from the ranch, or did you get out?

A I think I stepped outside there for a few minutes.

Q Where did you go, Betty?

A Just outside the car.

Q How close were you to the pool hall at that time?

A Right next door.

Q On the same side of the street?

A Yes.

THE COURT: We will take our recess now until 1:45. The jury will keep in mind the admonition not to talk about the case or form or express any opinion.

(Whereupon a recess was taken until 1:45 o'clock p. m. of the same day, Thursday, October 22, 1942.)

Index

                                                                                                                                                                                   
PEOPLE'S WITNESSES:  DIRECT  CROSS  REDIRECT  RECROSS 
Aguilar, Bertha  1168-B  1278-Bird 
1289-Sh 
1292-Sch 
1297-R 
1300-Z 
1326-VT  1329-S  1343-Bird 
1346-Sch 
1347-Z 
Albino, Mrs. Mary  2378-B  2403-Z 
2437-R 
2440-Sh 
2445-Sc 
2452-R 
Barrios, Dora  1351-B  1461-B 
1463-Sh 
1464-Sc 
1468-R 
1473-Z  1475-B  1492-R 
Brown, Garner  3275-B 
Brown, Garner (recalled)  3346-B 
Brown, Garner (recalled)  3448-B 
Brown, Garner (recalled)  3282-B 
Brown, Garner (recalled)  3346-B 
Brown, Garner (recalled)  3448-B 
Brown, Garner (recalled)  3481-B 
Brown, Garner (recalled)  3622-B 
Brown, Garner (recalled)  3658-B 
Brown, Garner (recalled)  3751-B  3827-L 
3886-Se 
3906-Sh 
3951-VT 
3965-Sh  3966-B  3968-Z 
Carroll, Edgar H.  4109-B  4125-Sh 
Coronado, Eleanor  2128-B  2165-V 
2196-Z 
2245-Sc 
2254-R 
2257-Sh 
Cuneo, Dr. Henry M.  4263-Sh  4288-Z 
4311-Sh  4307-Sc 
4308-Sh 
4312-Sc 
Davis, Everett P  4485-B 
PEOPLE'S WITNESSES (Cont'd):  DIRECT  CROSS  REDIRECT  RECROSS 
Delgadillo, Marie  1577-S  1649-V 
1699-Z 
1756-R 
1766-Sch 
1803-Sh 
1835-Z 
1847-Sch 
1847-V  1853-S  1875-V 
1883-Sch 
Delgadillo, Victoria  1887-B  1921-Z 
1948-R 
1951-Sc 
1959-C 
1959-Sh 
1960-V 
1985-Z 
1997-Sh  1998-B  2004-V 
2007-Sc 
2009-Z 
Diaz, Lino  103-B  123-R 
123-Z  133-B 
Diaz, Teodulo  89-Sh  98-Bird 
99-Z 
Douglas, H. W.  4480-B 
Drumm, William L.  3641-B  3650-V  3658-B 
Emerson, Lloyd  3068-B  3073-Sh 
English, Thomas H.  3462-B  3467-Z  3470-B  3473-Z 
Ferguson, V. L.  4199-Sh  4202-Z 
Fitzpatrick, Thos. H.  3218-B  3221-Sc 
Fitzpatrick, Thos. H (recalled)  4353-B  4354-Z 
Gallardo, M. A.  3010-B  3023-V 
3028-Z 
Gonzales, Josephine  764-B 
Gonzales, Josephine (recalled)  843-B  994-Bird 
1005-Sh 
1011-Sch 
1014-V 
1015-R 
1023-Z 
1076-Bird 
Gonzales, Josephine (recalled)  1083-B  1145-B 
1146-V 
1151-Sc 
1151-R 
1153-Z