People v. Burns

• Decision Date: 03 March 1952
• Docket Number: Cr. 2761
• Citation: 241 P.2d 308,109 Cal.App.2d 524
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE v. BURNS.

Page 308

241 P.2d 308

109 Cal.App.2d 524

PEOPLE v. BURNS.

Cr. 2761.

District Court of Appeal, First District, Division 1, California.

March 3, 1952.

Hearing Denied March 31, 1952.

See 242 P.2d 9.

Hugh E. Burns, in pro. per., and Emmet F. Hagerty, San Francisco, for appellant.

Edmund G. Brown, Atty. Gen., David K. Lener, Dep. Atty. Gen., for respondent.

BRAY, Justice.

Defendant appeals in propria persona from a conviction by a jury of murder in the second degree and an order denying a new trial. He was represented by counsel at the trial and on argument here.

Questions Presented.

1. Insufficiency of the evidence, particularly to prove second degree murder. 2. Errors in admission of testimony, particularly evidence of the commission of a crime 13 years prior. 3. Alleged misconduct of the judge and district attorney.

Facts.

It is the theory of the prosecution that deceased died from being beaten about the head by defendant. The defendant contends that her death was due to injuries from falls.

Defendant, 37 years of age, married and father of two children, is a sergeant in the United States Army and was stationed at Camp Stoneman. On Saturday, in uniform, he with a couple of other soldiers came to San Francisco after stopping at Orinda for a couple of drinks. About 6 o'clock he was in Brownie's Tavern where he met Mrs. Myrna Stewart, aged 39, whose husband was absent from the city. Burns testified that she smiled at him, and he bought her drinks. Both he and she drank ginger ale and whisky. In the course of their conversation she gave him the name of a hotel which was not 'too fussy' and stated she would go there with him later in the evening. He then went to the hotel, checked in, and returned to Myrna at the tavern. They had more drinks. Defendant does not know how long they remained in the tavern, nor does he remember leaving the tavern. In a statement to the police given on Monday he stated that the next thing he remembered was the cab driver telling him 'we couldn't fight in his taxicab.' He also stated that he did not remember hitting Myrna, but he must have because of the driver's statement, and then he stated that he did remember striking her in the cab. He also stated that after they got out of the cab, he apologized to her for hitting her. He further stated that the driver put them out of the cab. The driver testified that about 9 p.m. the couple got into his cab at the Mark Hopkins Hotel. They were not drunk but evidenced that they had been drinking. Defendant directed him as to particular streets to drive on, and had him stop at a drug store which defendant entered, returning in approximately three minutes. Defendant first told him to drive to Twin Peaks and then told him to drive to the beach. Arriving at the beach defendant directed him to drive to the left, along the Great Highway. The couple were quiet all the way until then, when the driver heard Myrna say, 'No, don't.' The couple were embraced and he said, 'No rough stuff in the cab.' Defendant replied, 'All right.' Near Fleishacker Zoo the driver made a 'U' turn and started back. At Wawona Street defendant said, 'Stop here. We are going over to have a drink.' The couple got out. 'They appeared friendly.' At no time did the driver notice any marks on Myrna's face. There was no fight in the cab and the driver did not put the couple out. Defendant's testimony at the trial differed with his statement to the officers. His testimony concerning the ride from the time when he claims he first remembered being in the cab up to this point was substantially the same as that of the driver. The place where the cab stopped was opposite a bar called Mac's Hitch Rack. On the other side of the street was a concrete pedestrian tunnel under the Great Highway to the beach.

Defendant testified that after leaving the cab Myrna suggested a swim before they had another drink. They started up the embankment to go across the Great Highway. Defendant fell in some bushes there. He claimed that the scratches found on his ear were caused by his fall or in his getting up, although when asked by Inspector Nelder if they were from a finger nail he replied that he did not know. (There were three scratches on the back of his right ear. He then noticed the tunnel and they started through it. Myrna fell against the cement side of the tunnel. He did not know whether she hit her head, although she fell head first towards the side. In his statement to the police he said 'she slipped' and fell on 'that cement.' He had told Inspector Nelder that the floor was concrete. (Actually the floor is loose sand, not concrete.) He helped her up. They walked out of the tunnel on to the beach. A short distance from the tunnel they undressed to go swimming. Myrna was a short distance from him. She asked him to help her with her brassiere. He helped her unhook it. Then she started for the water. They were both completely unde. By the time he caught up with her she had fallen forward. She did not answer him. He thought she had passed out, due to her drinking. He decided to take her down to the water to revive her. She was limp and he had difficulty in lifting and carrying her. He fell with her several times, tripping over debris. Once he fell on top of her on a log. He finally got her near the water and started to splash water on her. A breaker hit him from behind and he rolled on top of her. He eventually got her out of the surf and to the dry sand. He saw a couple walking along the beach (Mr. and Mrs. Baron). He called to them, asking that they give him a hand. Baron came over. Defendant explained that the woman had passed out from drinking and what he had tried to do to revive her. Together they carried her to where her clothes were. Baron and he started to dress her. Mrs. Baron approached so he got his clothes off to one side and dressed. The Barons dressed Myrna. Baron and he carried her through the tunnel to the street. Baron said something about getting an ambulance. Defendant said he did not want to get involved, knowing that the woman was married and so was he. Baron told him he was already involved. Defendant went across the street to Mac's Hitch Rack and asked a man and woman sitting at a counter to call an ambulance, as there had been an accident. He returned to the Barons and Myrna. The Barons left to go to Mac's for a cup of coffee. When the Barons entered the place, defendant decided that he had done everything he could for the woman. Defendant went towards Mac's but continued on to the next street and hailed a taxi which had just debarked some passengers. He then went to his hotel and changed into civilian clothes. He then noticed that his ear was bleeding more than he had realized. He next went back to Brownie's Tavern and asked Reilly, the bartender, to do him a favor, that if anyone asked if he were in there earlier in the evening to say he did not see him. He then went to another tavern, had a drink and left in a taxi, which took him to his hotel where he got his suit case. He was then driven to Cooper and Varni's bar where he waited while the taxi driver, at defendant's request, took his suit case to the Greyhound bus station from which the buses leave for Camp Stoneman, checked it, and brought back to him the key to the receptacle. Defendant had one drink there. He asked the bartender for a flashlight, saying that he thought he had lost his watch at the beach and he wanted to go out and look for it. This was about 2 o'clock Sunday morning. At his request he was driven to the 365 Club, taking with him in the cab a woman he met in Cooper and Varni's. When they closed the bar at the 365 Club he returned to his hotel. He left his hotel Sunday morning about 8 o'clock and after drinking at a couple of bars, and getting his suit case at the bus station, he went to the beach and looked for his wristwatch and glasses which he had lost there the night before. He also had lost one of his socks there. He then went to a couple of bars and then to a restaurant. He had had nothing to eat since 6 o'clock Saturday morning. He returned to his hotel and went to bed. That afternoon Sergeant Feller who had come down from Stoneman with him waked him up and they started back to camp. Defendant contended that in the statement testified to by Inspector Nelder the questions and answers were not complete and that some of them were twisted around.

Mr. and Mrs. Baron testified that while walking along the beach between the hours of 10:30 and 11:30 that Saturday evening they passed eight or ten yards beyond a nude man standing, who called, asking Baron to give him a hand. Lying at his feet was a nude woman, who was unconscious but breathing heavily. Defendant stated that he and she had been drinking; she had passed out from drinking, and he had brought her to the beach to revive her in the water. He and defendant carried her to the spot where defendant's clothes were. The woman seemed to be shivering and Baron took defendant's jacket and shirt and placed them over her.

Then Mrs. Baron and he started looking for the woman's clothes. Mrs. Baron found them and he and she put the woman's coat and dress on her. Mrs. Baron put the underclothes in the woman's hat. Baron suggested getting an ambulance or calling the police. Defendant said he did not want to get involved in anything. Baron told him he was already involved. Defendant suggested that they carry the woman where they could get a cab. Baron and defendant, who by then had dressed, then carried her through the tunnel to the street, Mrs. Baron bringing the underclothes and hat. In carrying the woman from the place where she was lying on the wet sand Baron did not observe any obstacles on the sand. Mrs. Baron noticed some sort of log, although it did not obstruct their path. When they got through the tunnel Baron noticed that the woman had a 'very stout or fat face or her face was swollen.' He did not notice anything about her mouth....