People v. Cooley (211 Cal. App. 2d 173, 1962)

CONLEY, P. J.

The defendant, Donnell Cooley, known as Spade Cooley in the amusement world, was convicted by a jury of murder in the first degree for the killing of his wife, Ella Mae. Thereafter, he withdrew his additional plea of not guilty by reason of insanity and waived a jury with respect to fixing the penalty for his crime. The trial judge sentenced 'him to life imprisonment. There was no motion for a new trial. A notice of appeal was filed in due course.

We shall be as concise as reasonably possible in stating the significant facts shown in the more than 2,750 pages of the reporter’s transcript. In this connection we must keep in mind the rule applicable to appellate courts in the review of a criminal record on appeal.

The Supreme Court states in People v. Newland, 15 Cal.2d 678, 681 [104 P.2d 778] :

“The rule applicable where there is evidence, circumstantial or otherwise, that a crime has been committed and that the defendant was the perpetrator thereof, has been many times reiterated by the reviewing courts of this state as follows ; The court on appeal ‘will not attempt to determine the weight of the evidence, but will decide only whether upon the face of the evidence it can be held that sufficient facts could not have been found by the jury to warrant the inference of guilt. For it is the function of the jury in the first instance, and of the trial court after verdict, to determine what facts are established by the evidence, and before the verdict of the jury, which has been approved by the trial court, can be set aside on appeal upon the ground’ of insufficiency of the evidence, ‘it must be made clearly to appear that upon no hypothesis whatever is there sufficient substantial evidence to support the conclusion reached in the court below. ... We must assume in favor of the verdict the existence of every fact which the jury could have reasonably deduced from the evidence, and then determine whether such facts are sufficient to support the verdict. ’ If the circumstances reasonably justify the verdict of the jury, the opinion of the reviewing court that those circumstances might also reasonably be reconciled with the innocence of the defendant will not warrant interference with the determination of the jury.” (See also People v. Osslo, 50 Cal.2d 75, 84-85 [323 P.2d 397] ; People v. Daugherty, 40 Cal.2d 876, 885 [256 P.2d 911] ; People v. Reed, 38 Cal.2d 423 [240 P.2d 590]; People v. Cullen, 37 Cal.2d 614 [234 P.2d 1]; People v. Jones, 36 Cal.2d 373 [224 P.2d 353]; People v. Robillard, 55 Cal.2d 88, 93 [10 Cal.Rptr. 167, 358 P.2d 295]; People v. Wein, 50 Cal.2d 383, 398 [326 P.2d 457] ; People v. Eggers, 30 Cal.2d 676 [185 P.2d 1] ; People v. Perkins, 8 Cal.2d 502, 510 [66 P.2d 631] ; People v. Tom Woo, 181 Cal. 315, 326 [184 P. 389] ; People v. Stephens, 66 Cal.App.2d 755 [152 P.2d 1019]; People v. Wright, 94 Cal.App.2d 70 [210 P.2d 263].)

In view of the foregoing rule, it is inevitable in reviewing the long record that we examine with more particularity the evidence of the People tending to show the guilt of the defendant rather than the proof supporting his theory of innocence.

The Evidence

The appellant, Spade Cooley, ‘‘the King of Western Swing,” had been a well-known bandleader, musician and television actor. He first met Ella Mae Cooley in 1943, when he hired her to sing with his band; in 1945 they married, after he divorced his first wife.

In the year 1946, just before the birth of their first child, Melody (who was an eyewitness against her father upon the trial), the victim believed that she had discovered the appellant with another woman in their home; when she proceeded to pack her belongings with the intention of moving to her sister’s home, he warned her that if she did leave him he would find her and kill her. In the year 1950, at the home of her sister, the appellant twisted her arm behind her while she screamed, “Don’t let him take me, don’t let him take me ”; at that time when her brother-in-law attempted to intervene, the appellant struck him.

Sometime later, on a cruise to Catalina Island, the appellant struck his wife and forced her to kneel and apologize to their guests for something which had met with disfavor on Ms part. The record shows that during their life together the appellant had inflicted numerous beatings upon her and that on one occasion when he started to choke her she was forced to jump from an automobile. The appellant’s daughter, Melody, testified that she had witnessed the appellant “slap around” her mother and threaten to kill her on numerous occasions and that he had often beaten her. On at least five occasions beatings were witnessed by a nurse and domestic-companion, and in one instance the nurse was forced to strike appellant with a eucalyptus log in order to stop him from continuing the assault. In February of 1961, Ella Mae stated that she was being kept a prisoner by her husband and that she was afraid of him, as he had threatened to kill both her and the children.

In the early part of 1961 Mrs. Cooley was hospitalized; she had been under a severe strain and was quite nervous; while hospitalized she expressed fear of her husband to her doctor on several occasions. During this period she retained a woman attorney to commence divorce proceedings; she told her attorney that her husband had often beaten her and that his physical abuse was growing worse; she said that she was in fear for her life, as appellant had told her he was going to kill her if she attempted to leave him and that he would kill their children if she tried to take them with her; the victim said she was afraid to return home; she said that she wanted no property but would be satisfied to get out with her life.

At about the same time Ella Mae began sending small increments of money to “Bud” Davenport and Luther Jackson with the understanding, they said, that the money would be invested in stock in their names in secret trust for her use after she obtained a divorce. While she was in the hospital in March the appellant telephoned and told one of the nurses that he was coming to visit his wife; when a nurse’s aide relayed the message to her she became hysterical and begged for a place to hide, and after the aide left the room, she locked herself inside the bathroom and refused to come out again until the nurse’s aide identified herself and said that Cooley was not there.

Mrs. Cooley had telephone conversations with Davenport and Jackson while she was in the hospital, during which she told them she feared for her life because of the numerous beatings inflicted upon her and the threats made by the appellant. On March 11, 1961, while Davenport and the victim were conversing by telephone the appellant tried for a period of 45 minutes to reach her, and when he later questioned her about her protracted conversation and told her falsely that he had monitored the call, the victim replied, “So what, now you know.” Appellant assumed that the victim was carrying on an illicit affair with Davenport, and he informed a business associate, Jerry Enfield, that Ella Mae had been having sexual relations with Davenport. Davenport and Jackson were living together and had visited the ranch on a number of occasions. Each of them denied on the witness stand that Mrs. Cooley had ever had sexual relations with either.

However, the appellant assumed, notwithstanding his belief that the two men were homosexuals, that she had been conducting an affair with Davenport, and the appellant then telephoned him shortly afterwards at 1 o’clock in the morning and told him that he was coming to “beat his teeth in” and to kill him. He did visit Davenport and Jackson at 3 a.m., accompanied by two friends and business associates, Jerry Enfield and Beal Whitlock. At that time appellant accused Davenport and Jackson of being homosexuals and falsely told them that he had tape recordings of all of Davenport’s telephone calls to his wife. He then struck Davenport on the chin and told him that if he did not get out of the state he would kill both him and Ella Mae.

On March 13th the appellant confided to a friend of the family, the nurse Dorothy Davis, that his wife was leaving him for another man.

On the 21st day of March, 1961, appellant filed a divorce case, charging extreme cruelty. Two days later he requested an escrow officer of a bank to come to his home to notarize certain quitclaim deeds. Before this person arrived, the appellant beat his wife severely, and that night the victim signed four deeds which transferred the property upon which they lived from joint tenancy to appellant’s sole ownership. Bach of these parcels of land was said to be worth #80,000, but each was heavily encumbered. Ella Mae was also induced to sign several deeds in blank.

On March 24th appellant telephoned to Anita Aros, who had been a violinist in his band, telling her that he was divorcing his wife and asking her to marry him as soon as he obtained a decree in Nevada; she accepted his proposal, although she later said she considered it a joke. Several days later he again telephoned her, saying they would be married in seven weeks; on that occasion he forced his daughter to tell Anita Aros that- she wanted her for a mother.

Appellant made various telephone calls in which he accused his wife of carrying on an extramarital affair; he forced her by means of threats and beatings to confess this purported delinquency to numerous people, including her 14-year-old daughter; the defendant told Melody that her mother was a “whore” and a “slut” and that she had been going to motels and trailer parks with other men. On another occasion appellant dragged the victim to his car and started to drive away, but before he was able to go any great distance she jumped out of the car; it was going so slowly at the time that she was not injured.

On March 29th the appellant requested his business associate, Jarrold L. Enñeld, to move the trailer in which he had been living near appellant’s home to a point a mile away.

Appellant forced his wife to make telephone calls to various people and confess her purported extramarital affair; at times during these calls appellant would hit her. He required her to call the Antelope Valley Hospital to demand a record of her calls while she had been a patient there. During this period, while she was sitting in bed, the appellant kicked her in the stomach saying to Melody, “See she only cries when you hit her, she doesn’t care what’s happening.” Mrs. Cooley expressed a desire to escape, but no one could or would help her. When appellant left the ranch in the early part of the evening on one occasion he took the speaking devices out of all of the telephones so that his wife could not call out. When he returned from a meeting of the Elks Club one night he told the victim he was going to take her to the home of Bobbie Bennett, his business agent in Los Angeles; she did not want to go, as she had told her daughter that each time he took her to Bobbie Bennett’s house he would stop on the way in the intervening mountainous country and beat her, and she expressed fear also that she would be held prisoner in the Bennett home. Appellant, however, dragged her out of the house and put her in his automobile.

On the following day, March 30th, Mrs. Cooley telephoned her sister, Elizabeth Kidwell, from the Bennett house in Los Angeles, saying that she was in “bad shape,” that she needed a place to hide and that Mrs. Kidwell could expect a call shortly from some people who would try to effect an escape for her. However, she never saw her sister again.

On March 31st the appellant informed a nurse that the victim had jumped from a moving automobile. She had a black eye, brush burns on her arms and legs, and her ankle, coccyx and back were bruised.

On April 2nd the victim and the appellant were back at their home in Antelope Valley. She had a black eye, was drained of color and had an abrasion on her arm. She stated to her daughter that the appellant had pushed her from the car.

On the same afternoon, at about 4 o’clock, the nurse Dorothy Davis paid a visit to the ranch. Appellant showed the nurse the telephone bills which he told her were the victim’s confessions. Mrs. Cooley confessed to her that she had been carrying on an extramarital affair.

Late on April 2nd, the appellant received a telephone call from William S. Lewis, the private investigator he had hired to get evidence for his divorce suit. Ella Mae spoke to the investigator on the telephone and stated that she had had intercourse with “Bud” Davenport twice. The appellant heard this confession and ordered the investigator to check out the information as to motels.

On April 3, 1961, the day of the homicide, Jarrold L. En-field, business associate of the appellant, visited him at the ranch. The appellant informed him he now had proof of the victim’s infidelity and produced a purported written confession, which stated, in her handwriting, that she had gone to a motel with two men, Davenport and Jackson. Enfield looked at the confession and said, “Yes, it’s Ella Mae’s handwriting, Spade, but I know how you got it.” Appellant replied, “What difference does it make as long as it is true.”

At 2 p.m. one Russell Kirsan arrived at the ranch. At that time a pickup truck was blocking one entrance to the Cooley ranch, and there was a chain across the other entrance. Kirsan entered the house, where he and appellant discussed business matters, particularly the drafting of a check for $2,000 in payment of a debt owed to a Mr. Peterson. Shortly after-wards, L. C. Martin, appellant’s foreman, arrived. Kirsan signed the payroll checks for the work crew. At that time appellant was dressed in a striped shirt with the shirttails out, khaki trousers and black boots. At appellant’s request, Kirsan left to purchase a bottle of whiskey. Kirsan returned later in the afternoon and he, Martin and appellant each poured a drink.

At 4 p.m. Melody telephoned from the McWhorter home nearby, asking if she could spend the night there. Mrs. McWhorter spoke to appellant and told him she would be happy to have Melody and her little brother, Donnell, Jr., stay over night with her own children. Appellant asked if it would not be a great imposition. She replied that it would not. Appellant said, “Well, I needed this.”

At 4:40 p.m. Chester Peterson, the contractor, arrived to collect his check for $2,000. Kirsan refused to sign a check in that amount, as checks of over $500 required the express approval of the board of directors of the corporation for which the work had been done. Appellant thereupon became belligerent, made heated statements to Kirsan that his action was ruining appellant’s reputation for paying bills promptly, finally shoved him, challenged him to a fight and expelled him from the house. At about 5 -.30 p.m. appellant attempted to persuade Martin to accompany him to the trailer of Davenport and Jackson to watch him beat them. Peterson left about 5 :30.

Appellant and Martin discussed certain projects under construction at the ranch. At 5:35 p.m. Ella Mae walked into the room and sat down in a chair, separated from appellant’s chair by a coffee table. She looked pale; her left eye was black, her hair was “messy,” she had no cuts under the chin, no cuts on the nose, and no other visible marks or bruises, and she appeared to be missing no hair on her head. Appellant kept asking Martin in her presence to go with him to beat up Davenport and Jackson, but Martin would not. He left the ranch at 5 :45 p.m.

At 6 o’clock Ella Mae called Melody and asked her to come home so she could explain to her “what this was all about.” Melody told her mother that she did not want to come home. Appellant then took the telephone. He said, “I know, Melody, you don’t want to see your mother. You don’t want to see her, this old rep, do you?” Melody replied that she did wish to see her mother, so appellant told her to come on home. The girl asked Mrs. McWhorter to drive her to the ranch but to pick her up again no later than 20 minutes afterwards.

Appellant admitted on the stand that before Melody arrived he struck and knocked the victim to the floor while they were in the living room and that he also struck her while they were in the bedroom. The savagery of the attacks can be pieced together from the injuries inflicted and the physical evidence found at the scene. The victim’s body was covered with multiple bruises and abrasions; her left eye was blackenend, her nose bruised, her lips bruised and split, there were cracks on the chin, injuries to her neck, shoulder, chest, hip, arms, wrist, legs; there was an abrasion on the right side of the right breast; the nipple was blackened and discolored and partially separated from the breast. There were bloodstains on the floor in the living room; a broken cup in the living room contained bloodstains and female hair which resembled the victim’s; in the bedroom there were bloodstains on the floor in front of the desk, impact or splatter-type bloodstains on the pillow case, on the sheets and on the boxspring cover of the bed, and on a water tumbler on the desk; there were bloodstains on a rifle in the bedroom and on the upper part of an ashtray stand, as well as blood splatters on the bedroom walls and on appellant’s trousers. Deep bruising of the muscles of the neck, a break in the hyoid bone and a break in the thyroid cartilage in front of the victim’s windpipe indicate that she was strangled. A clump of hair forcibly removed from her head was found near the foot of the bed. There was bloody material in the victim’s vaginal and rectal orifices and splits in both the vaginal and anal-rectal mucous membrane. A broom was found in the bedroom which contained a uniform deposit of mucus substance with some blood extending 5 or 6 inches down the handle. Pour fragments of blond bloody hair were imbedded in the fibers of the broom handle, and this hair resembled the victim’s. Expert testimony showed that these stains could not have been placed on the handle by hand contact. Contact bloodstains on the bedding were consistent with mutilation of the anal and vaginal area with the broom handle.

When Melody arrived at the house appellant was talking on the telephone, and she heard him say, “Beal, don’t call the police. ’ ’ The evidence shows that there was a Beal Whit-lock who was a friend and business associate of the appellant. Appellant’s daughter testified that at that time he was dressed in tan cord pants and black boots and that he was sweaty. Melody asked him, “Are the police coming?” He said, “Yes, there will be some in here in a minute, all over here in a minute. Come here, I want you to see your mother. ’ ’ As they went through the living room Melody saw tables shoved up on one another, a broken glass on a table and a bottle of whiskey.

They entered the bedroom, but her mother was not there. Instead, she saw bloodstained sheets. Appellant walked into the bathroom and said, “Get up Ella Mae, Melody is here.” When the victim did not answer, appellant dragged her nude body out of the shower by the hair and banged her head twice on the floor, causing internal injuries and hemorrhaging. The victim uttered no sound and made no movement. Appellant said, “Melody, I’ll give you three minutes to get her off the floor or I’ll kill her if you don’t get her up.” He went into the living room and began a countdown, calling out, “One minute left,” “Half a minute left, Melody.” Melody tried to raise her mother, but was unable to do so, as she was limp. Finally appellant said, “Time’s up, Melody,” and he strode into the room with a rifle in his hand. He made his daughter sit down in a chair and said, “All right, Melody, you are going to watch me kill her.” With that statement, appellant stamped the victim in the abdomen with his boot. Contusions in the abdominal area indicate three applications of force; this stamping split the victim’s abdominal aorta, and the resultant hemorrhage caused her death in approximately 20 minutes, in the opinion of expert witnesses. After he stamped on her, appellant stooped down by the victim and said, “We’ll just see if you’re dead.” He called her a “slut.” Then he knelt down and touched the nipples of both of her breasts with his cigarette.

Melody started to run, but appellant grabbed her and said, “All right, I’ll give you two more minutes to get her off the floor.” Then the phone rang. Appellant answered it and carried on a conversation on it. Then he returned to the bedroom and said, “Come on Melody I won’t touch her any more, sexual wise.”

Appellant then took Melody into the living room, made her sit on his lap, kissed her passionately and touched her breast. He told her he was going to turn all his love over to her and to Donnell, Jr., as their mother had “crushed him.”

Melody remarked that she would turn off the shower, and appellant told her to pour some water on the victim. Melody did pour water on her mother’s chest, as from the rattling sound she heard emanating from the victim’s throat, she feared she would drown her if she bathed her face.

The girl returned to the living room. The telephone rang again. It was “Billy” Lewis, the private investigator. The appellant and Lewis discussed the latter’s attempt to obtain evidence for appellant’s use in his divorce action. Appellant was insistent that Lewis investigate motels appellant claimed the victim had stayed at with Davenport and Jackson. Although he seemed annoyed because Lewis had not performed his duty better, appellant was rational enough and calm enough to give him explicit instructions on the work he expected. When Lewis asked appellant if his wife could hear the conversation, he replied, “No, not at all.”

While the defendant was talking to Lewis, Melody kept looking out of the window for Mrs. McWhorter, whose return she expected momentarily. When he ended his conversation, Melody told appellant that she thought she saw Mrs. Mc-Whorter and didn’t want her to come into the house. She kissed her father on the cheek hurriedly; as she ran from the house, appellant’s parting words were, “Melody, don’t tell the police anything. If you do, I might have to kill you.” The girl thought she heard a shot behind her, so she said she hid back of Beal Whitlock’s trailer, then ran across a field to Mrs. McWhorter, who was just arriving. Although she was crying hysterically, she told Mrs. McWhorter the details of the murder of her mother she had just witnessed.

After Melody left, appellant cleaned up some of the blood. Later in the evening Bobbie Bennett arrived. She was accompanied by one Ed Borglund. The three discussed business affairs. The appellant did not mention anything about the victim during the business discussion, but he went into the bedroom on one occasion to look at the victim. When he returned to the living room he told Bobbie Bennett that she was hurt, and the latter urged defendant to call a doctor, but he refused. Instead, he had Bobbie place a telephone call to the nurse Dorothy Davis in Los Angeles at 9 p.m. Bobbie told Dorothy that the victim had had an accident and that they needed her services at the ranch. Dorothy suggested to Bobbie that if the victim was seriously injured they ought to call a doctor and an ambulance.

Later in the evening “Billy” Lewis telephoned again. He informed appellant that he was unable to find evidence that the victim had stayed with Davenport and Jackson at the motels appellant had told him to investigate. Appellant asked him to call the next day, and he then put Bobbie Bennett on the line. Lewis asked Bobbie what was happening at the ranch. She replied, “Well, nothing any too good.” Then Bobbie asked Lewis to be prepared in case she called him for assistance later that night. Lewis asked, “Is there something cooking?” Bobbie replied, “Yes.” Then Lewis asked, “Would this be an emergency thing?” Bobbie replied, “Yes.”

Dorothy Davis arrived at the ranch at 11 p.m. No doctor or ambulance had been called. Appellant and Bobbie met her at the front door and told her the victim was in the bedroom. Dorothy went in to examine Mrs. Cooley, who was lying diagonally across the bed with her head near the pillow area and her body under a sheet and blanket. She could feel no pulse and heard no heartbeat, and she told appellant that Ella Mae was dead. Dorothy Davis first called the Antelope Valley Hospital, then the sheriff’s department, in search of an ambulance. She told a deputy sheriff she feared the victim was dead. An ambulance was dispatched to the Cooley ranch.

Dorothy advised appellant to change his clothes. He was dressed at the time in tan trousers and socks. He put on a sport shirt, trousers and cowboy boots, and appellant put the tan trousers in the washing machine.

The ambulance arrived at 11;35 p.m. Appellant asked the driver to take her to the Tehachapi Valley Hospital. He went into the bedroom where he saw the body lying diagonally on the bed, wrapped in a blanket with her face exposed. He removed her from the bed with appellant’s help, placed her on a gurney and took her into the ambulance. Appellant rode in the back of the ambulance; before leaving the ranch at 11:45 he executed a general power of attorney in favor of Bobbie Bennett. On the trip to the hospital appellant was calm and collected; upon arrival he informed the doctor there that the victim was badly injured and needed medical attention. The doctor found that the victim was dead. He so informed the defendant, who apparently showed no remorse but merely asked if the doctor was sure. At 3 o’clock in the morning of April 4, 1961, appellant made a voluntary statement to the sheriff’s deputies, which was tape recorded and was later used at the trial.

Appellant’s defense was twofold. First, he claimed that the victim had suffered her fatal injuries as a result of an accidental fall in the shower; secondly, he urged that he had no intent to kill his wife, as he had blacked out when he learned the details of her alleged sexual relationship with Davenport and Jackson.

The first angle of the defense was completely discredited' by the medical experts as well as by the testimony of Melody, as an eyewitness to the murder.

Appellant’s second theory of defense, the contention that upon learning of the details of her alleged affair with Davenport and Jackson “rockets went off in his head” and that he lost consciousness of what he was doing and of his surroundings can searely stand up in view of the fact that he knew generally of these alleged matters weeks before the time of the killing. He was sufficiently apprised of this purported relationship in the early weeks of March to cause him to order the two men to leave the victim alone and to strike Davenport and threaten to kill both him and Ella Mae. About the middle of March appellant insisted the victim telephone Davenport so that he could listen to their conversation and assure himself there had been no sexual liaison between them; the gist of the conversation caused him to believe there was in fact an illicit relationship. About March 15 appellant emptied the victim’s handbag and discovered a receipt for a $200 money order. Mrs. Cooley confessed to appellant that she thought she was in love with Davenport and that she had been sending money to him to invest for her. She admitted that she had received numerous telephone calls from Davenport.

On March 17 Ella Mae confessed to appellant that she had been in love with Davenport, and he thereupon informed her that he would seek a divorce, after which she told him that she had herself previously consulted an attorney about the possibility of obtaining a divorce. That very day the appellant signed a complaint for divorce on the ground of extreme cruelty.

Later, Ella Mae told her parents in the presence of defendant that “she had been a very foolish and a very bad woman and that she had been giving [Davenport] money.” Following this, appellant took her back to the ranch with him, and, according to the defendant, the victim on this trip jumped out of the car, sustaining injuries. However, he did not call a doctor.

On March 29th, while he was taking her to confront Davenport and Jackson, Mrs. Cooley once more jumped from the moving car, according to defendant’s testimony, and she again sustained injuries; the defendant did not call a doctor for her on this occasion either.

On Saturday, April 1, appellant hired a private detective for the purpose of obtaining evidence to ‘ expose and humiliate” Davenport and Jackson. On the day of the murder, April 3, appellant questioned Ella Mae about going to a motel with the two men. When she admitted that she had done so, something “exploded” in Ms brain, according to Ms testimony. In spite of this, appellant did not strike the victim at that time. Eather, he conducted business in an apparently normal fashion with a partner and with other persons. Late in the afternoon, after all of his guests had departed, appellant saw the victim sitting on a long divan in the living room. He testified that he sat down in an easy chair across from the divan and when Ella Mae suggested that he looked hot, he removed his shirt, his boots and his socks. Appellant remembered that he had three drinks of whiskey during the day and had also taken three thorazine pills in the morning.

According to the defendant, Ms wife and he immediately began to discuss the impending divorce. She asked the appellant if he was going to keep hounding Davenport and Jackson, and said to him, “I’m not worth it,” and that she would show him she was not worth it. She asked appellant to telephone Melody and have her return to the ranch so that she could tell them both what she had done, and the call to Melody was accordingly placed. Appellant testified in detail as to the victim’s confession of her first meeting with Davenport and of their unnatural conduct at that time. Cooley said that he had no “conscious recollection” of then striking the victim, but that he must have done so, for she fell on the table and then to the floor. His next recollection, according to his testimony, was of the victim’s sitting on the bed in the bedroom. He remembers vividly all of the next few events. He said that she said to him, “Now you think I don’t love you, don’t you?” She took his cigarette and said, “I’ll show you how much I love you.” He testified that, saying this, she opened her blouse and burned herself on the breast.

Next, appellant testified in detail to the victim’s purported “love cult confession,” and with respect to her alleged plan to go with Davenport and Jackson to La Jolla, or some other seaside location, and to aid them in founding a love cult colony. He also testified that she told in detail of her own initiation into the love cult. Appellant testified that he had no “conscious recollection” of his actions after the victim described these sexual activities. He stated that he next recalls seeing her lying half on the floor and half on the bed, still conscious. As Melody would soon arrive, he asked Ella Mae if she wanted “to take a shower and try to cleanse herself as much as she could. ’ ’ Appellant saw the victim walk into the bathroom but did not see her go into the shower. The next sound appellant heard was a thud and breaking glass. He testified that he had no “conscious recollection” of what happened after he heard the crash.

The defendant recalled, so he said, that Melody assisted him in removing her mother from the shower and putting her on the bed, but he had no “conscious recollection” of what occurred while Melody was there. Thus, he had no “conscious recollection” of touching her breasts with a cigarette, as testified by Melody, or of stamping on her abdomen with his boot or mistreating her with the broom handle, or of having a gun in his hand. He had no “conscious recollection” of grabbing the victim by the hair when he pulled her out of the shower or of banging her head on the floor or of giving Melody a countdown to get her mother off the floor. He had no “conscious recollection” of speaking on the telephone to Beal Whitlock and telling him not to call the police or of telling Melody, “The police will be swarming all over this place,” or of shouting, “Get up, Ella Mae, get up, Melody is here, tell her the bad things you told me.” However, the appellant recalled, so he said, of telling Melody, as she left the house, that the victim was hurt badly from a fall in the shower and that she had burned herself on the breast with a cigarette. He also recalled cleaning away the blood in the shower and on the floor outside the shower with a rag sometime during the evening.

Defendant’s Contentions on the Appeal

The defendant and appellant makes the following claims on the appeal:

1. The evidence is insufficient to justify the verdict of first degree murder;

2. The court committed prejudicial error by permitting evidence of the decedent’s state of mind;

3. The court erred in giving certain instructions and in refusing others ;

4. The district attorney was guilty of prejudicial misconduct.

Proof of Murder iist the First Degree The- defendant claims that the evidence was insufficient to justify the verdict of guilty of murder in the first degree. In his brief appellant’s counsel says: “Had the jury been properly instructed it is entirely conceivable that they would have found the defendant guilty of murder in the second degree or even manslaughter.”

Murder is the unlawful killing of a human being with malice aforethought (Pen. Code, §187). A homicide is murder of the first degree when the accused, as a result of deliberation and premeditation, intends unlawfully to take away the life of another. (Pen. Code, § 189; People v. Martinez, 38 Cal.2d 556, 560-561 [241 P.2d 224] ; People v. Bender, 27 Cal.2d 164, 178 [163 P.2d 8] ; People v. Sutic, 41 Cal.2d 483, 491 [261 P.2d 241] ; People v. Mason, 54 Cal.2d 164, 168 [4 Cal.Rptr. 841, 351 P.2d 1025].) This means that a defendant must have weighed in his mind and considered the course of action he was taking, and after having considered the reasons for and against such course of action, chose to kill his victim. (People v. Robillard, 55 Cal.2d 88, 95 [10 Cal.Rptr. 167, 358 P.2d 295, 83 A.L.R.2d 1086] ; People v. Honeycutt, 29 Cal.2d 52,61 [172 P.2d 698] ; People v. Bender, supra, p. 183.) However, direct evidence of malice or of a deliberate and premeditated purpose to kill is not required, but these elements may be inferred from proof of such facts and circumstances as furnish a reasonable foundation for such an inference and where the evidence is not at law insufficient, the matter is exclusively within the province of the jury as the trier of fact to determine. (People v. Brubaker, 53 Cal.2d 37, 40 [346 P.2d 8] ; People v. Cartier, 54 Cal.2d 300, 305-306 [5 Cal.Rptr. 573, 353 P.2d 53] ; People v. Robillard, supra, p. 95; People v. Wells, 10 Cal.2d 610, 617, 624 [76 P.2d 493] ; People v. Cook, 15 Cal.2d 507, 514 [102 P.2d 752] ; People v. Rupp, 41 Cal.2d 371, 382 [260 P.2d 1].)

Appellant asserts that his conduct was excusable as a result of provocation. In People v. Taylor, 197 Cal. App.2d 372, 380-381 [17 Cal.Rptr. 233], it is said:

“To be sufficient to reduce homicide to manslaughter, the heat of passion must be such as would naturally be aroused in the mind of an ordinary, reasonable person under the given facts and circumstances, or in the mind of a person of ordinary self-control. (People v. Brubaker, 53 Cal.2d 37, 44 [346 P.2d 8].) The primary question in determining whether homicide is voluntary manslaughter is whether the defendant’s reason was, at the time of his act, disturbed or obscured by some passion to such an extent as would render an ordinary man of average disposition likely to act rashly or without due deliberation and reflection, and from this passion rather than from judgment. [Citing cases.]

“ Furthermore, before a homicide may be classified as voluntary manslaughter, it must appear that there was no ‘cooling’ period, that is, after the ‘heat of passion’ was reasonably and justifiedly engendered, ‘hot blood had not had time to cool’ before the fatal act was committed, that is, the act that engendered the ‘hot blood' had occurred so shortly before the killing that reason had not had time ‘to resume its empire.’ (People v. Wells, 10 Cal.2d 610, 618 [76 P.2d 493].)

“ In the final analysis, the existence of provocation and its extent and effect, if any, upon the mind of defendant in relation to the existence of malice is a question of fact for the jury. [Citing authorities.] ”

The People urge that the testimony of Melody, Cooley’s daughter, as to his acts in killing Ella Mae would of itself sustain a conviction of first degree murder, and that while this evidence alone establishes a wilful, deliberate, premeditated murder, there was more; the testimony that appellant heaped physical abuse upon the victim during their marriage, that she was in grave fear of him, that she was induced to sign deeds transferring her property to Cooley, that he proposed marriage to Anita Aros, tends to support a conclusion that the murder was wilful, deliberate and premeditated.

We agree with the respondent’s observation that the truth of Cooley’s claim that he lost his senses at the time of the explanation by his wife of details of the purported relationship between her and the two men, Davenport and Jackson, is open to serious doubt. Mr. Cooley admittedly thought Davenport and Jackson were homosexuals, and Ella Mae had on numerous occasions in the past made lurid confessions to Cooley, only subsequently to retract them. She had been confessing her alleged infidelity to the appellant for weeks, and Cooley himself had repeatedly told numerous people of Ella Mae’s delinquency. Appellant testified that at noon on the day of the tragedy Ella Mae confessed that she had gone to a motel with both Davenport and Jackson; after this, appellant conducted business affairs with apparent calmness. Cooley carried on a conversation with his private investigator and discussed business problems with Bobbie Bennett after the injuries to Ella Mae were perpetrated.

Furthermore, the prosecution based its claim of murder in the first degree primarily upon the theory that the facts showed murder by torture. Murder which is perpetrated by means of torture is murder in the first degree. (Pen. Code, § 189.) In People v. Martinez, supra, 38 Cal.2d 556, 561, the defendant’s wife died from burns after her husband threw gasoline on her and lit a match. The court said:

“Murder is so perpetrated when ‘the assailant’s intent was to cause cruel suffering on the part of the object of the attack, either for the purpose of revenge, extortion, persuasion, or to satisfy some other untoward propensity. ’ (People v. Tubby, 34 Cal.2d 72, 77 [207 P.2d 51]; People v. Bender, 27 Cal.2d 164, 177 [163 P.2d 8].) In the present case defendant had previously stated that he intended to ‘do something bad’ to his wife. The jury could reasonably conclude that when defendant set about to burn his wife with gasoline, his intention was to inflict cruel suffering as punishment or revenge on his victim. ’ ’

In People v. Gilliam, 39 Cal.2d 235, 239 [246 P.2d 31], wherein one inmate of a jail killed another by beating and kicking him, the court said: ‘ ‘ On the record the jury could justifiably conclude that the defendant had the requisite intent which would support the verdict on any or all of the theories submitted to it. Considering the deliberateness of his acts and statements, the time intervening since his drinking, and the length of time consumed in committing the assault, the jury could infer that the defendant knew what he was doing and that he committed the acts with homicidal intent. The jury could also conclude that responding to an unprovoked sadistic tendency he had the purpose and intent to cause cruel suffering on the part of the decedent, and that among the torturous acts of brutality he maliciously gouged the victim’s eye with his heel. The evidence that the defendant did not desist until his victim stopped breathing supports the conclusion that he was alive when that kick was administered. The justification for the implied findings of the jury, which support the verdict of first degree on any or all of these theories, differentiates the result from that in People v. Tubby, supra (34 Cal.2d 72), and does not call for the application of that case nor of other cases on which the defendant relies. ”

In People v. Tubby, supra, 34 Cal.2d 72, 77, the case relied upon by appellant, the court said: “In determining whether the murder was perpetrated by means of torture the solution must rest upon whether the assailant’s intent was to cause cruel suffering on the part of the object of the attack, either for the purpose of revenge, extortion, persuasion, or to satisfy some other untoward propensity. The test cannot be whether the victim merely suffered severe pain since presumably in most murders severe pain precedes death.

‘‘ In this case the record is devoid of any explanation of why the defendant might have desired his stepfather to suffer. The only testimony concerning the relationship between the two men was that the deceased and the defendant were on amicable terms prior to the attack. . . . An indication that the defendant was in a ‘fighting mood, ’ inclined to fight almost anyone and not primarily interested in causing the ultimate victim to suffer, is the fact that he offered to fight the arresting officer and had to be subdued by force. It is too apparent to admit of serious doubt that the unprovoked assault was an act of animal fury produced when inhibitions were removed by alcohol. The record dispels any hypothesis that the primary purpose of the attack was to cause the deceased to suffer. When death results under the circumstances here shown the homicide cannot be said to constitute murder by torture in the popular, dictionary, or legal sense. The evidence is therefore insufficient as a matter of law to support the verdict on the theory that the homicide was murder by torture. ’ ’

From Cooley’s own testimony we gather that days and hours were spent in which he and Ella Mae Cooley discussed her indiscretions. His concentration on his wife’s purported amorous activities can be believed; he sought people to whom she could confess; he had secured written confessions from her; he traced down and struck one of her “friends.” For days he mulled over in his mind thoughts of his wife’s indiscretions. None of these things was present in People v. Tubby. The two eases are distinguishable.

An intent that the victim should suffer may be inferred from the condition of the victim’s body. (People v. Misquez, 152 Cal.App.2d 471, 480 [313 P.2d 206].) The pictures in evidence and the expert testimony would lead the jury to infer that it was the appellant’s intention that she should suffer cruelly. The body had fresh bruises and abrasions on it from head to toe, and there was testimony that the essential wounds could not have been caused either by a fall in the shower or by a previous fall from an automobile. The body had dried blood at the hairline, a black eye, discoloration of the nose, dried blood across the nose, discoloration of the lips, small splits in the lips, small cracks on the chin, discoloration of the neck, an abrasion in the breast area, bruises on the arm, ribs, hips, abdomen and hair missing from the top and forward part of the head. There was bleeding above the surface of.the brain, as shown by the autopsy. The body had complex abdominal injuries, particularly the retroperitoneal hematoma; this hemorrhage, due to a split in the abdominal aorta, was the cause of death, in the opinion of the People’s experts. Aside from an testimony by Melody, the eyewitness, who said that she saw the appellant drag the victim by her hair, bang her head against the floor, stamp her in the abdomen with his booted foot and put a cigarette on the victim’s breast, the condition of the body indicates that Ella Mae was badly injured, that a nipple of her breast was partly torn away, that a broom handle had been forcibly thrust into both her vaginal and anal orifices, that she was choked, her head banged violently on the floor and her abdomen stamped upon. “ It was for the jury to resolve conflicts in the evidence and to determine the inferences to be drawn therefrom [citing cases].” (People v. Baker, 42 Cal.2d 550, 563 [268 P.2d 705].) We conclude readily that there was overwhelming evidence of killing by torture, and that the murder was of the first degree.

Evidence op Decedent’s State op Mind

Appellant argues that the court committed error in allowing several witnesses to testify to statements made by the decedent with respect to the fear which she entertained of her husband. Amy Pixler, the attorney at law who consulted with Ella Mae in the hospital, was permitted to testify to her statements that she was in fear of her life because of threats made by the defendant. Elizabeth Kidwell, the decedent’s sister, related a telephone conversation on the Thursday prior to Ella Mae’s death concerning her fear of appellant; she was also allowed to testify to an incident that occurred on a trip to Catalina Island several years before and also to a conversation that occurred in 1950. The witness Jackson related statements made by Ella Mae that she was in fear for her life, and Gloria Baltes stated on the witness stand that the decedent had told her that she would like to get away for a rest but that she was being kept a prisoner by the defendant. The trial judge was careful to instruct the jury that the evidence of Ella Mae’s fears was received solely for the purpose of showing the state of mind of the decedent.

People v. Merkouris, 52 Cal.2d 672, 682 [344 P.2d 1], and People v. Atchley, 53 Cal.2d 160, 172 [346 P.2d 764], hold that as an exception to the hearsay rule evidence may be given under proper circumstances of statements made by a murder victim to show fear of the defendant. This rule has been clarified and somewhat restricted in People v. Hamilton, 55 Cal.2d 881, 893-894 [13 Cal.Rptr. 649, 362 P.2d 473], in which the Supreme Court says:

“Undoubtedly, in a proper case, and in a proper manner, testimony as to thé ‘state of mind’ of the declarant, where there is an issue in the case is admissible, but only when such testimony refers to threats as to future conduct on the part of the accused, where such declarations are shown to have been made under circumstances indicating that they are reasonably trustworthy, and when they show primarily the then state of mind of the declarant and not the state of mind of the accused. But there are and should be rigid limitations on the admission of such testimony. One of these limitations is that such testimony is not admissible if it refers solely to alleged past conduct on the part of the accused.”

Reliance is also placed by appellant on the holding in People v. Purvis, 56 Cal.2d 93, 98 [13 Cal.Rptr. 801, 362 P.2d 713], in which the court speaks as follows: “Defendant contends that certain hearsay statements of Hazel Wilson were also improperly admitted. Witnesses testified that Hazel Wilson had told them that she was afraid of defendant because he had killed his wife. In the trial for the murder of Hazel Wilson defendant also claimed that he had killed without premeditation. There was no issue of either identification or self-defense. There was thus no ground on which Hazel Wilson’s fear of defendant could be admitted even to prove defendant’s guilt let alone to aid the jury in fixing the penalty. It may be that an inference as to the victim’s conduct can be drawn from the victim’s state of mind, but certainly no permissible inference can be drawn therefrom as to defendant’s character or actions. Standing alone, the error in admitting this evidence might not be prejudicial. Considered, however, with the error in admitting the highly prejudicial hearsay statements of Eleanor Purvis and the improper use of the hearsay in the prosecutor’s argument to the jury the conclusion is inescapable that the purpose of introducing such testimony was to inflame the jury against defendant.”

Here, the state of mind of the victim—namely, that she feared the defendant because of his threats to kill her, was of help to the jury in determining whether the People’s contention of murder by torture or the defendant’s claim of death by accident was correct. The trial court carefully instructed the jury as to the restricted significance and effect of the evidence. And it should be noted that much of the testimony given by the witnesses on this general subject was developed on cross-examination by the appellant; appellant’s counsel went further and introduced evidence of brutality on the part of appellant; consequently he now has no right to assert error to the extent of the answers given in response to his own interrogation. (People v. Buzzell, 15 Cal. 2d 654, 659 [104 P.2d 503] ; People v. Fitzsimons, 189 Cal. App.2d 682, 685 [11 Cal.Rptr. 471].)

Some of the evidence cited shows past acts of physical violence committed by the appellant upon Ella Mae; such evidence was properly admissible as showing the prior course of conduct of appellant toward his victim; it tends to show motive and easts further light on the question whether death was the result of appellant’s action or of an accident. (People v. Lint, 182 Cal.App.2d 402, 415-417 [6 Cal.Rptr. 95] ; People v. Cartier, supra, 54 Cal.2d 300, 311.)

Considering the whole record on the subject, we conclude that there was no prejudicial error in the introduction of evidence which showed the victim’s fear of appellant’s future actions.

The Instructions

Appellant contends that the court erred by refusing an instruction defining murder and the element of malice; the assertion is made that as a consequence the jury had no standard by which to distinguish between first degree murder and manslaughter.

The proposed instruction was CALJIC 301; it is correct in form and could well have been adopted. However, the instructions actually given sufficiently in effect cover the same ground, and the jury could not have failed to understand from the whole charge the elements involved in first degree murder. It is not prejudicial error to refuse an instruction if the subject involved is substantially covered by the charge actually given. (People v. Eggers, 30 Cal.2d 676, 688 [185 P.2d 1]; People v. Mathews, 163 Cal.App.2d 795, 801-802 [329 P.2d 983] ; People v. Eaton, 60 Cal.App. 612, 613 [213 P. 275] ; People v. Latona, 2 Cal.2d 714, 727 [43 P.2d 260] ; People v. Hall, 220 Cal. 166, 173 [30 P.2d 23, 996] ; People v. Morales, 26 Cal.App.2d 442, 444 [79 P.2d 771].)

The court drew a clear and definite distinction between the degrees of murder and the various types of manslaughter. The jury was instructed that in order to constitute a homicide, an unlawful act must be the proximate cause of death; that malice is an essential element of murder; that in order for a murder to be of the first degree, the killing must be wilful, deliberate and premeditated; that to constitute first degree murder “.. . the killing must be accompanied by a clear, deliberate intent to take life. The intent to kill must be the result of deliberation and must have been formed upon a pre-existing reflection and not under a heat of passion or other condition such as precludes the idea of deliberation”; that to constitute first degree murder, a defendant must weigh and consider the question of killing and the reasons for and against such a choice and, having in mind the consequences, decide to and commit the unlawful act causing death.

These instructions in effect advised the jury that malice was an element of first degree murder, but limited the malice to express malice as defined by Penal Code section 188. Thus, although not complete in that they did not cover implied malice, the shortcoming is beneficial to the appellant, as it limited the possible basis for a finding of malice. If there was any error in this regard, it cannot be relied upon by the appellant, as it was favorable to him.

The court also fully instructed the jury on murder by torture, and pointed out that such murder was of the first degree.

The jury was informed that second degree murder must be distinguished from both first degree murder and manslaughter. That in the case of second degree murder, the killing must be committed with malice aforethought, but that it is not wilful, deliberate and premeditated and not committed by means of torture. More particularly, they were informed that: “In practical application this means that the unlawful killing of a human being with malice aforethought but without a deliberately formed and premeditated intent to kill is murder of the second degree in any of the following eases:

“When the killing results from an unlawful act the natural consequences of which are dangerous to life, which act is performed deliberately by a person who knows that his conduct endangers the life of another; or,

“When the circumstances [at]tending the killing show an abandoned or malignant heart, or when the killing is done in the perpetration or attempt to perpetrate a felony such as the felony of wife beating.”

The jury was told that when there exists provocation which is sufficient to reduce a homicide to manslaughter and the killing is murder, provocation may be considered by them as bearing upon the degree of the crime.

Manslaughter was said to be the unlawful killing of a human being without malice. Voluntary manslaughter was defined, as was involuntary manslaughter. The provocation which would reduce a homicide to manslaughter on the ground of sudden quarrel or heat of passion was fully dealt with. The jury was instructed that manslaughter is distinguished from murder by the absence of malice, either express or implied. Going beyond that, the court informed the jury that the killing of a human being is excusable and not unlawful when committed by accident or misfortune in the heat of passion, under sudden and sufficient provocation.

These instructions adequately advised the jury of the differences between the various degrees of murder and of manslaughter ; “. . . it is never necessary to instruct in the exact language of a statute” (People v. Hayes, 161 Cal.App.2d 129, 134 [326 P.2d 169]) ; and there was no error in failing to give the proposed instruction on malice and murder in the first degree. (People v. Cox, 76 Cal. 281, 285 [18 P. 332] ; People v. Glaze, 139 Cal. 154, 164 [72 P. 965] ; People v. Mathews, supra, 163 Cal.App.2d 795, 801-802.)

The court instructed the jury on murder by torture as follows: “The unlawful killing of a human being which is perpetrated by torture is declared by the law to be murder of the first degree; and if you should find that the defendant committed a torture murder, you will have no choice but to designate the offense as murder in the first degree.

“The essential elements of a torture murder are:

“(1) Acts by the defendant;

“ (2) Which cause the death of a human being;

“ (3) Done with the intent to cause cruel pain and suffering; and

“ (4) For the purpose of obtaining a confession, or for the purpose of persuasion, or for any other untoward or sadistic purpose.

“The crime of torture murder does not require any proof that the defendant intended to kill the deceased, nor does it require any proof that the deceased actually suffered pain, nor does it require any proof of malice, wilfulness, deliberation or premeditation.

“In reaching your determination as to whether or not the defendant intended to cause cruel pain and suffering for some untoward purpose, you may take into consideration all of the circumstances surrounding the death of the deceased including acts of the defendant, if any, with respect to the deceased before the defendant knew the deceased was dead, even though said acts may have occurred after the deceased was actually unconscious or dead.”

This instruction is attacked by appellant on the following grounds: (1) It is urged that murder by torture requires proof that the deceased actually suffered pain; (2) that the instruction allowed the jury to find that appellant was guilty of murder by torture even though the appellant had no intent to kill; (3) that the instruction is erroneous in that it stated that proof of premeditation is not a necessary requisite of the offense charged.

The appellant’s contention that an essential part of the crime of murder by torture is proof that pain was actually suffered by the victim is based upon somewhat ambiguous language in an opinion in People v. Heslen (Cal.) 163 P.2d 21, which was set aside by the Supreme Court through the granting of a rehearing. (See 27 Cal.2d 520 [165 P.2d 250].) The other citation in support of appellant’s contention is People v. Tubby, supra, 34 Cal.2d 72, 76, in which the dictionary definition of torture is quoted.

It is quite evident that in all violent homicides there exists pain on the part of the victim, as is remarked in the case of People v. Misquez, supra, 152 Cal.App.2d 471, 480. But, clearly, it is the specific intent on the part of a defendant to inflict pain that is the essential element of the crime, and the trial court’s instruction was correct in this respect. (People v. Martinez, supra, 38 Cal.2d 556, 561; People v. Chavez, 50 Cal.2d 778, 788 [329 P.2d 907] ; People v. Misquez, supra, p. 480; People v. Daugherty, 40 Cal.2d 876, 898 [256 P.2d 911].)

The contention made by appellant that the instruction is erroneous in form by reason of the use of the following language, “The crime of torture murder does not require any proof that the defendant intended to kill the deceased . . . nor does it require any proof of malice, wilfulness, deliberation or premeditation,” is correct in that the sentence in question should have informed the jury that murder by torture does not require any separate or additional proof of malice, wilfulness, deliberation or premeditation. The very fact that it is a murder by torture supplies the necessary proof of these elements.

People v. Valentine, 28 Cal.2d 121, 135-136 [169 P.2d 1], holds that the intent to kill is not an essential element of murder by torture and that by statutory definition such murder is of the first degree:

“Even where the killing in perpetration or attempted perpetration of one of the named felonies is unintended and accidental, nevertheless, as held in People v. Lindley (1945) 26 Cal.2d 780, 791 [161 P.2d 227], ‘the offender “is guilty of murder of the first degree by the force of the statute.” [Citations.] If the evidence establishes conclusively that the murder was so committed, then only a verdict of murder of the first degree may properly be rendered. And even where the showing is not conclusive, if the record affords substantial support for the conclusion that one of the enumerated felonies was perpetrated or attempted, and the killing was committed in such perpetration or attempt, the judgment must be affirmed. [Citations.] ’ (See also Fricke, California Criminal Law, page 100, and cases there cited.) Similarly the murderer who kills by torture or poison may intend only to inflict suffering, not death. Evidence of the means used might support an inference that the killing was willful, deliberate, and premeditated, but where the jury has found that the killing was by poison, lying in wait, or torture it is not their function to go farther and draw inferences as to the manner of the formation and carrying out of an intention to kill. In such a ease the question which the statute (Pen. Code, § 189) answers affirmatively is not, ‘Is the killing willful, deliberate and premeditated?’; it is ‘Is the killing murder of the first degree ? ’ Ki