People v. Camargo

• Citation: 279 P.2d 194,130 Cal.App.2d 543
• Decision Date: 01 February 1955
• Docket Number: Cr. 2570
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Albert CAMARGO, Defendant and Appellant.

Page 194

279 P.2d 194

130 Cal.App.2d 543

The PEOPLE of the State of California, Plaintiff and Respondent, v. Albert CAMARGO, Defendant and Appellant.

Cr. 2570.

District Court of Appeal, Third District, California.

Feb. 1, 1955.

Paul S. Garstang, Chico, for appellant.

Edmund G. Brown, Atty. Gen., by Doris H. Maier & F. G. Girard, Deputies Atty. Gen., for respondent.

WARNE, Judge, pro tem.

Appellant was accused by three counts of an amended indictment with involuntary manslaughter of his infant son, in violation of section 192, subdivision 2, of the Penal Code. Count I alleges a violation of the Penal Code section, with the additional words 'while wilfully causing or permitting said child to suffer.' Count II (alternative) alleges a violation of the same subdivision of the Penal Code section in the language of the statute, and adds the words 'while inflicting upon said child unjustifiable physical pain. Count III (alternative) also alleges a violation of said Penal Code section and said subdivision in the words of the statute with the additional words 'while permitting or causing the life or limb of such child to be endangered.' Appellant was tried by a jury and acquitted upon the first and second counts, and was convicted upon the third. Motions in arrest of judgment and for a new trial were made by the appellant, and denied by the court; however, sentence was suspended and appellant was granted probation. Appellant appeals 'from the judgment therein entered * * * on the 25th day of June, 1954, and from an order denying a new trial, and from the whole thereof.' Since no judgment was entered or pronounced, the order granting probation must be deemed to be the final judgment for the purpose of this appeal. Penal Code section 1237 as amended in 1951. It is apparent that such was the intent of the appellant because he starts his opening brief with the caption: 'Appeal from the order granting probation * * * and from the order denying defendant's motion for a new trial.' In the case of People v. Robinson, 43 Cal.2d 143, 271 P.2d 872, 873, the court laid down the following rule: 'A notice of appeal will be liberally construed to permit a hearing on the merits and avoid a dismissal because of some technical defect or irregularity.' We will therefore construe the notice as an appeal from the final judgment as well as the order denying the motion for a new trial.

Appellant contends that the evidence is wholly insufficient as a matter of law to support the verdict of the jury finding defendant guilty of manslaughter, and also that the corpus delicti of manslaughter was not established by the prosecution.

Appellant's two months old infant son died in his mother's arms at approximately 3:00 o'clock in the afternoon of February 14, 1954, as he was being rushed to an Oroville hospital by his parents. On the following morning an autopsy, performed by a doctor who specialized in pathology, revealed the infant's death had been caused by a brain concussion with traumatic intracranial hemorrhages; i. e., hemorrhages of the brain produced by violence. The autopsy surgeon also testified that the deceased baby had suffered multiple bruises in the vicinity of the head and face, including one across the top of the scalp which measured 1/2 by 3/8 inches. Some of the bruises around the left eye were associated with small lacerations of the skin. There were six external injuries on the body. He also testified that the deceased baby had suffered a number of serious and severe injuries including a potentially fatal rupture of the liver. Eleven ribs had been broken, and there was extensive hemorrhage area surrounding the brain. There was bleeding in the lung and beneath the lining of the lung cavity on the right side beneath the area of injury. There were also hemorrhage areas in the heart, kidneys, adrenal glands, bladder, rectum, thalamus, breast bone, and larynx. The doctor further testified that the pathological studies which he made established that the brain concussion was sustained between 24 to 72 hours prior to the death; that the injury to the lungs and the liver was nearer 72 hours prior to the death, and the ribs had been broken many hours or days prior to death. He also testified none of the injuries could have been caused within 1 hour or less prior to death. The medical testimony in respect to the time element is of special significance because it was the theory of the prosecution that severe and multiple injuries had been inflicted upon the baby by the appellant over a period of several weeks. In support thereof evidence was introduced that appellant on several occasions endeavored to 'exercise' and 'toughen up' his young son by dropping him on a bed, bouncing him up and down, throwing him into the air, holding him up by the thumbs, and squeezing him until his head turned reddish purple. Appellant denied any mistreatment in his handling of the infant, but admitted that in playing with him he bounced him up and down on the bed, and that he once suspended him by the thumbs to demonstrate his strongth. Appellant disclaimed any intent to harm his child, and all of the witnesses admitted that he never displayed any anger towards the baby or seemed to feel that he was being brutal. At the trial appellant and his wife testified that on the afternoon, between 1:00 and 3:00 o'clock, preceding the baby's death, the appellant accidentally dropped him on his head on the floor, but that the baby did not seem to suffer any ill effects therefrom. Later on, around 7:00 o'clock or a little later, they attended a show and took the baby with them. During the time that the child was in the show there was nothing unusual about its behavior; however, they testified that the following afternoon the baby suddenly became seriously ill and discharged a quantity of mucus from its nose and mouth, struggled for breath and appeared to be choking to death, and that appellant tried to keep the baby breathing by slapping and spanking it vigorously and applying artificial respiration. When his efforts appeared to be unsuccessful, they started for the hospital to obtain medical aid, but the baby died just as they reached the hospital. In a statement made to the investigating officers four days after the baby's death, appellant stated that when the baby kept gasping for breath he became excited and must have hit him too hard. He claims he could not recall how many times he struck the baby, but 'it might have been a dozen, might have been a half a dozen. It seemed like everything happened so quickly.' The prosecution contends that the boby's fatal injuries could not have been caused at that time, or on the preceding afternoon when it fell to the floor, as the autopsy surgeon testified that none of the serious injuries could have been incurred less than 24 hours prior to death, and that the child could not have choked to death as there was no obstruction of the mouth, nose, windpipe or lungs, and that there was no abnormal amount of mucus which should have been present if the baby had had the seizure or attack described by appellant and his wife. However, there was no testimony as to whether or not such a fall to the floor, approximately 24 hours before death, could have caused the fatal brain concussion. It is appellant's contention that...