THE PEOPLE, Respondent, v. FREDERICK R. HILLS, Jr., Appellant, 30 Cal. 2d 694

EDMONDS, J. When charged with the crime of murder of the first degree, Frederick R. Hills, Jr., waived a trial by jury. He was convicted of that offense and the death sentence was imposed. His appeal from the judgment and from an order denying a new trial challenges these determinations principally upon the ground that the evidence is insufficient to support the conclusions of the trial judge in regard to his guilt. The victim of the homicide was Doris Hills, the appellant’s wife. She was described as being about 5 feet tall and weighing less than 100 pounds. At the time of her death, they were living together.

The two sons of the couple had left the home of their parents but a daughter, with her husband and a small child, were members of the household. It appears that Mr. and Mrs. Hills had a happy married life until about four years ago, when they quarreled over the marriage of their daughter, Carol, at the age of 16. Hills opposed her marriage but his wife gave the necessary consent. The argument was never forgotten and continued to be the cause of much bitterness between the parents.

Carol married a soldier and while he was away on military duty, she and her baby returned to the family home. 'When Carol’s husband was discharged from the Army, he joined them and the three continued to live with Mr. and Mrs: Hills. Difficulties between Carol and her husband accentuated the discord in the Hills’ home, and a controversy between Mr. Hills and one of his sons added to the family disturbance. The son, Richard, tried to borrow money from his father to buy an automobile.

Hills either did not have it or refused to make the lpan and suggested that Richard obtain the necessary amount by selling his two motorcycles. Richard borrowed the money from a friend. The dispute caused hard feelings between Hills and his son, and Richard was ordered out of the home.- He has lived with his aunt since that time. There were other causes for inharmony. As a result of physical difficulties, for two or three years Mrs. Hills had been nervous' and irritable, and she and her husband engaged in many discussions regarding the rearing of children. Apparently these arguments were unending.

Financial matters also brought about dissension. Hills closed a joint bank account which had been maintained by him and his wife and deposited the money in his own name. A quarrel followed, in which Hills claimed that his wife did not “know the value of a dollar,” spent too much money and overdrew the account. Shortly before her death, Mrs. Hills inquired of an attorney in regard to her property rights in the event of a divorce. There was testimony that Hills knew of these inquiries, although at another time he denied any knowledge of them.

Hills admits that he killed his wife on a December night, but he has given several different versions as to the manner in which it was accomplished. However, the testimony of Carol, her husband; and Hills, is -without conflict as to the events' which preceded the homicide. At the dinner table, Carol’s baby was making considerable noise. Her husband told her to keep the baby quiet, which prompted Mrs. Hills to say, “Well,, that sure is a heck of a way to bring up a kid,” whereupon she walked out of the room. Hills went to milk the cows.

When he returned, his wife was reading'a magazine; Carol, her husband and the baby were in another room. The young people went to bed. Hills started reading a magazine and later asked his wife why she had “jumped on” Carol’s husband. She replied that she did not like him any more. There was some discussion about the other children. Hills then left the house to cheek the boiler in the greenhouse. Upon his trial, Hills declared that, on his way back from checking the boiler, he was struck across the shoulders and did not know exactly what happened.

According to his testimony, the next thing he remembered was seeing his wife lying on the floor of the shed. After turning on the light he tried to discover what had happened. Upon listening to her heart and not hearing any beat, he attempted to revive her by artificial respiration. He then recalled that he walked up and down, wondering what to do next, and later dug a hole. Upon cross-examination he admitted burying his wife in this hole, which was in a squash patch. He then went to bed without awakening his daughter or her husband. The next morning Carol prepared his breakfast.

He asked her if she knew where her mother was, attempting to hide his distress from her. Later he and Carol went to friends in the neighborhood, asking if they knew anything about the whereabouts of Mrs. Hills. In his testimony, Hills admitted that he then knew his wife was dead and had been buried in the garden. But he declared that at times he suffered “black-outs,” which were caused by a dusting powder used by him for killing bugs in the greenhouse.

He attributed loss of memory as to just what had happened in the shed at the time he killed his wife to one of these “black-outs.” Two days after the homicide, Hills and Carol reported to the police that Mrs. Hills was missing. A report made by Biehard, the son, was then on file, but Hills denied that he had any knowledge of it at that time. It was more than a month after the crime was committed before Hills was questioned by the police. He then told them that, following his wife’s “flare-up” at the dinner table, he had gone out to take care of the boiler.

When he came back to the house, he went to bed and did not see Mrs. Hills again. He got up several times during the night to check the boiler; each time he came back the lights were still on and he did not see his wife. When asked if this was not unusual, he replied that she often read or sewed at night after he had gone to bed. Some time later, he assisted the officers in searching the premises, but he did not lead them to the sqnash patch, nor indicate where his wife was buried. Although he then refused to take a lie detector test, he later submitted to one.

But when he was informed that the result of the test was unsatisfactory, he declined to take another one. He placed his refusal upon the ground that the test hurt his chest and his heart troubled him. The police did not visit him again for six months. They then went to his home at 10 o’clock at night and arrested him on a charge of suspicion of murder. The next morning Hills refused to take the lie detector test, but after consultation with his attorneys he agreed to do so. The test was given by the inventor of the instrument and lasted for about two hours.

The officers were not present, but at various intervals they were given reports as to its progress. Following the test, Hills told the officers that he had killed his wife. As he related the circumstances to them, on the night of the crime he made several trips to the greenhouse to check the boiler. During the last of these visits, while he was in the greenhouse, to his great surprise, he was struck across the shoulders with an iron bar. He whirled around and grappled with the person, who was unknown to him at the time. He felt a fur coat, and losing his head, struck at the person several times.

He realized that his assailant was a woman, he said, and he grabbed her by the throat. At that time he did not know that she was his wife. A few moments later she stopped struggling and was lying on the floor. He then recognized her as his wife and tried to revive her by artificial respiration. He thought she was dead and decided to bury her. He went out and got a shovel and buried her in the squash patch. Hills indicated to the officers on a map where the body was buried, and told them he would show them the grave. They took him to his home and started digging at the place indicated by him.

A pair of brown oxfords and a pair fit blue denim slacks were first discovered. Hills identified the shoes as belonging to his wife. Stockings were stuffed in the toes of the shoes. About a foot deeper, a decomposed body was found, clothed in a fur coat, a blouse, slacks, a man’s type underwear and shorts. The body was without shoes or stockings. The grave was between 5 and 6 feet deep.

In a statement given by Hills at that time he repeated the story he had told before, but said that he did not know how long it took him to dig the grave, or to bury his wife; also that he did not recall throwing the shoes and slacks on top of the body. He was certain that he did not take anything from the house to put in the grave. He did not call his wife to come out there, nor did he go out to the greenhouse with her. As he and his wife had not quarreled in weeks, he had no idea why she would come out and strike him with an iron pipe.

He also denied any knowledge of his wife’s inquiries as to a divorce and a division of the property. When he realized what he had done, he stated, he thought it best to make it appear that she had left him. Later, during this same statement, Hills said he was not sure whether he went to the house and got her shoes and slacks and threw them in the grave, but “it could be.’’ He also told the officers that he did not have any quarrel with his wife in the house; they were sitting on the wrapping bench in the greenhouse and got to arguing and he choked her, but did not strike her.

His wife had accompanied him when he went out to check the boiler. They were talking about Richard and she berated him for ordering Richard out of the house. This argument caused him to become so angry that he strangled her. A few days later, in an interview with Dr. DeRiver, official psychiatrist of the Los Angeles Police Department, Hills said that he and his wife had an argument while they were in bed. When the boiler started smoking, he got up and dressed and his wife said that she was going with him to finish the argument.

They came back through the greenhouse to the shed and sat on a bench and continued the argument, which was about Richard, for about half an hour. He then “blew his top.” Hills had called Richard a “God damn bastard,” and his wife said that her husband “was ten times that,” so they started tussling. He grabbed her throat and choked her, while she was on the floor of the shed. He stated he “never let go” of her after he got hold of her throat. After the grave was partly dug, he went back to the shed and she was cold; he felt the coldness when he picked her up. He told Dr.

DeRivers that he did not know that he hated his wife; he did not believe that he had planned to kill her, nor did he think he intended to kill her. The autopsy surgeon testified that because of the decomposed condition of the body, he was unable to give a definite cause of death. It was not certain that death was caused by manual strangulation; he could say that manual strangulation was present, but she may have died from suffocation. He explained that he had no way of knowing whether Mrs. Hills was dead when she was buried; it was possible that she was then still alive.

Although there was no soil or dirt in. what remained of the lungs, or in the chest cavity and bronchial tubes, it does not follow that she was dead at the time of burial because the soil, being moist, would not necessarily have been inhaled. Soil was found in the mouth and eyes, he said, but this would not necessarily be conclusive evidence that the person was buried alive. It would be possible for soil to be in the mouth whether the person was alive or dead when buried.

Upon this evidence the trial judge, sitting without a jury, convicted Hills of the crime of murder of the first degree and imposed the death sentence. As grounds for the reversal of the judgment, Hills maintains that although his wife may have been strangled, this could not be a circumstance tending to show premeditation or deliberation. He also asserts that it was error to admit his confessions and admissions in evidence as having been freely and voluntarily made. Finally, he argues that the record shows no crime of a degree greater than manslaughter.

To constitute murder of the first degree, there must be evidence showing that the killing was the result of a willful, deliberate and premeditated intent to kill, or was accomplished by means of poison, lying in wait, or by torture, or was committed in the perpetration of certain enumerated felonies. (Pen. Code, § 189.) The premeditated or deliberate intent, however, need not be shown by direct evidence, but “may be inferred from the proof of such facts and circumstances as will furnish a reasonable foundation for such a conclusion.” (People v. Eggers, ante, p. 676 [185 P.2d 1] ; People v.

Smith, 15 Cal.2d 640, 647 [104 P.2d 510]; People v. Cook, 15 Cal.2d 507, 514 [102 P.2d 752]; People v. Dale, 7 Cal.2d 156, 159 [59 P.2d 1014]; People v. Machuca, 158 Cal. 62, 64 [109 P. 886] ; People v. Mahatch, 148 Cal. 200, 202 [82 P. 779].) The drawing of the inference is a matter exclusively within the province of the jury, or of the trial court when a jury trial has been waived. (People v. Erno, 195 Cal. 272, 279 [232 P. 710].) It is not the province of this court to determine conflicts in the evidence, nor to choose between different inferences which reasonably may be drawn from the testimony.

The sole question, so far as the admissible evidence is concerned, relates to its sufficiency to support the verdict. (People v. Eggers, supra-, People v. Holt, 25 Cal.2d 59, 90 [153 P.2d 21].) The ultimate fact found by the trial court was that defendant was guilty of murder of the first degree. If there is substantial evidence in the record to support that judgment, the determination must be upheld. (People v. Eggers, supra; People v. Holt, supra; People v. Smith, supra; People v. Wells, 10 Cal.2d 610 [76 P.2d 493]; People v. Rico, 180 Cal. 385 [181 P. 663]; People v.

Mahatch, supra.) And “ [E]vidence of the means used might support an inference that the killing was willful, deliberate, and premeditated.” (People v.

Bernard, 28 Cal.2d 207, 211 [169 P.2d 636].) Applying these rules to the record in this case, from the evidence as to the relationship between Hills and his wife, and other members of his family, up to the time of the homicide, the manner of accomplishing the killing, the means of disposing of the body, the efforts made to prevent its discovery, and his conduct both prior to and immediately after the crime was committed, a deliberate intention to kill is fairly deducible.

An appellate court’s function is to correct errors of law; and where a jury has been waived, before the judgment may be set aside on appeal, it must clearly appear that upon no hypothesis is there sufficient evidence to support the conclusion reached by the trial court. The trier of fact is the sole judge of the weight and worth of the evidence. (People v. Newland, 15 Cal.2d 678 [104 P.2d 778]; People v. Green, 13 Cal.2d 37 [87 P.2d 821]; People v. Perkins, 8 Cal.2d 502 [66 P.2d 631]; People v. Latona, 2 Cal.2d 714 [43 P.2d 260]; People v. Tedesco, 1 Cal.2d 211 [34 P.2d 467]; People v.

Tom Woo, 181 Cal. 315 [184 P. 389].) “ [I]t is a matter for the trial judge to be persuaded beyond a reasonable doubt and not this court.” (People v. Smith, 35 Cal.App.2d 73, 76 [94 P.2d 633]; see, also, People v. Newland, supra, p. 682.) Clearly, from the record in the present ease, the required showing of premeditation and deliberation between the intent to kill and the homicide reasonably may be inferred. The cases relied upon by defendant are not controlling. In People v.

Kelley, 208 Cal. 387 [281 P. 609], the circumstances tended to show an accidental or unpremeditated killing and were not sufficient to show a deliberate or premeditated intent. And in People v. Howard, 211 Cal. 322 [295 P. 333, 71 A.L.R. 1385], the defendant’s statement, showing his connection with the crime, indicated that the deceased was the aggressor in a quarrel which led to the homicide. If the defendant’s statement was rejected as being untrue, the remaining evidence was insufficient to show that the intent was willful, premeditated, or deliberate.

A deliberate intention may fairly be adduced, however, from the facts and circumstances surrounding the killing of Doris Hills. A “Memoranda of Decision” was filed by the trial judge in which he stated the conclusions which he had drawn from the evidence. His opinion does not constitute findings of fact and cannot be used to modify the judgment. (Strudthoff v. Yates, 28 Cal.2d 602, 615-616 [170 P.2d 873]; DeCou v. Howell, 190 Cal. 741, 751 [214 P. 444]; Scholle v. Finnell, 173 Cal. 372, 376 [159 P. 1179]; Goldner v.

Spencer, 163 Cal. 317, 320 [125 P. 347].) But the credence which he gave to the testimony of Hills, and the inferences drawn from it and the evidence presented by the other witnesses, may be noted. He stated that there was ample evidence from which it could be found that Hills strangled his wife in the bedroom of their home and ,not in the shed; that the grave was prepared before the killing took place; and that she was still alive when buried. The motive for the homicide was said to be the belief of Hills that a divorce was inevitable and his unwillingness to give up any of the community property to his wife.

The explanation of Hills as to a “black-out” was rejected, and the evidence was summarized as showing “nothing more nor less than a deliberately planned and premeditated murder which was carefully and craftily executed by this defendant.” This determination finds full support in the record. The testimony also justifies the conclusion of the trial judge that the confessions and extrajudicial statements made by Hills were not procured by either mental or physical coercion. Moreover, no objection to their introduction in evidence was made. The judgment and the order denying a new trial are affirmed. Gibson, C.

J., Shenk, J., and Spence, J., concurred.