People v. Finley

• Decision Date: 14 August 1963
• Docket Number: Cr. 8813
• Citation: 33 Cal.Rptr. 31,219 Cal.App.2d 330
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Frank FINLEY, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 31

33 Cal.Rptr. 31

219 Cal.App.2d 330

The PEOPLE of the State of California, Plaintiff and Respondent, v. Frank FINLEY, Defendant and Appellant.

Cr. 8813.

District Court of Appeal, Second District, Division 2, California.

Aug. 14, 1963.

Hearing Denied Oct. 9, 1963.

Nathaniel J. Friedman, Los Angeles, under appointment by the District Court of Appeal, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., H. Warren Siegel, Deputy Atty. Gen., for respondent.

ASHBURN, Justice.

Defendant appeals from a conviction of murder of Marguerite M. Eggleston, the offense being fixed as second degree; also from order denying motion for new trial. Through court-appointed counsel appellant presents five claims of prejudicial error for our consideration.

It is asserted that it was error to permit the autopsy surgeon to detail his 'surgery' because of the 'highly inflammatory' nature of the evidence. Counsel says in his brief: 'It added nothing to the prosecution's case by way of demonstrating how death occurred, nor did it in any manner link the defendant with the crime, merely on the basis that the body had certain cuts and bruises, which were admitted to be of indeterminate age.' In this counsel errs. As shown in our discussion of sufficiency of the evidence infra, the issue of cause of death was in such evidentiary shape that the autopsy surgeon's findings were necessary to and highly persuasive of his conclusion that death of the victim was caused by acute bile peritonitis due to laceration of the liver precipitated by a very severe blunt force, a laceration which could have been caused by fists or kicking, the principal laceration being in the right lobe of the liver. His testimony filled a need for a definite showing as to the technical cause of death and tended directly to corroborate the testimony of Mrs. Carol Gordon, who was the only eye witness to the beating and kicking which was administered to decedent by appellant. This evidence was also important to establishing the prosecution's theory that the killing was a felony murder occurring in the commission of an assault 'by any means of force likely to produce great bodily injury' (Pen.Code § 245).

Photographs of the body of deceased of which appellant complains were not inflammatory and were a proper contribution to the proof of the cause of death. In effect, the jury found that it was caused by the beating given decedent by appellant. The same is true of the diagram made by the autopsy surgeon while on the stand illustrating his testimony as to the many injuries sustained by decedent shortly before the autopsy.

People v. Burns, 109 Cal.App.2d 524, 241 P.2d 308, 242 P.2d 9, cited by appellant, is not persuasive here for the facts are radically different. That opinion says, in part, 109 Cal.App.2d at page 541, 241 P.2d at page 318, concerning the photographs: 'They were particularly horrible * * *. The completely bald head, the surgical cuts and sutures, the ugly punctures, the inverted lips with the instruments attached, make the body so grotesque and horrible that it is doubtful if the average juror could be persuaded to look at the pictures while the witness pointed out the bruises and abrasions.'

A similar contention of appellant is that the court erred in permitting Dr. Wilkinson, a physician attached to the County General Hospital, to testify to the meaning of certain x-ray reports which had been made by a roentgenologist, and that he was permitted to detail gruesome surgical details which did nothing but inflame the jury. While the x-rays were made under the doctor's direction and control and were interpreted by the roentgenologist who rendered a report, the doctor's testimony did not consist of interpreting the x-rays. It was directed primarily to an explanation of the condition of decedent when she arrived at General Hospital on July 6 at 12:21 a. m. His testimony was largely the same as that of the autopsy surgeon with respect to injuries which had been received by the victim.

Particularly he observed acute bile in the liver, bruises in the left lower portion of the abdomen. One a second examination the sounds in the abdomen had changed. It had become swollen and signs of peritoneal irritation were present, so she was taken to surgery. There the witness found that she had a deep tear of the upper surface of the liver which was oozing bile and blood; also a tear in the suspending ligament of the small bowel and another in the ligament of the large bowel; a large amount of blood in the abdomen. The lacerations of the liver were on top and down behind and there were several small ones underneath the gall bladder. The major laceration was eight to twelve inches above the navel and the bruises of the lower abdomen were below the waistline. There was no impropriety in the admission of this evidence even if it were gruesome and inflammatory. It was part of the legitimate proof of the savage assault made upon decedent by appellant, which was the heart of the case.

Claim is made that the x-rays were not available to defendant for pretrial inspection. It fairly appears they were not in the possession of the prosecution but of the hospital. There is no indication that defense counsel had made any effort to inspect them prior to the trial. When the point was raised the judge gave counsel time to examine them and she thereafter announced: 'I have looked at them extensively and to my satisfaction.'

The sufficiency of the evidence to sustain the verdict of murder in the second degree plainly appears from a reading of the reporter's transcript. There were but two eye witnesses to the crucial events preceding the Eggleston death--Mrs. Carol Gordon and defendant. He was the only witness called by the defense upon any phase of the case. The police officers who arrived shortly after the beating furnished circumstantial evidence supporting Mrs. Gordon's version of the matter.

We must, of course, accept as established the evidence which favors respondent's position (People v. Daugherty, 40 Cal.2d 876, 885, 256 P.2d 911), and consider as rejected by the jurors that which contradicts the evidence supportive of the conviction.

Mrs. Gordon, who was a stranger to both Marguerite Eggleston and defendant, had been living at apartment 210 at 1220 South Harvard, in Los Angeles, for only three weeks before July 5, 1962, the date of the crime. The Eggleston apartment was number 206. Mrs. Gordon was home alone on that evening and at about 10:00 to 10:30 p. m. her attention was attacted by a noise like a door slamming and hearing a 'holler,' 'no, Frank, no, Frank.' She went outside her apartment into the hallway. There she saw a man, later identified as appellant, beating 'this lady,' holding her and kicking her across the face and beating her around the face with his fists, striking her with one hand and then the other. He looked toward Mrs. Gordon, so she went inside for about two minutes; she then opened the door and Finley was still beating the woman. At that time she was lying on the floor of the hallway, he was looking over her and beating her with fists and kicking her; the beating and kicking were continuous; the blows landed around her head and neck and above her waist. Defendant left, going downstairs. Mrs. Gordon asked Eggleston if she could help her, heard the downstairs door slamming and as defendant was coming up the stairs he motioned Mrs. Gordon toward her own door; as she left defendant was kicking his victim. Defendant left again. Mr. Gordon came home, was told what had happened and, having no telephone, went next door to call the police. Defendant came back upstairs and asked: 'What happened to you? Who did this to you? How did you get out here?' (Although the record is not clear, these remarks seem to have been addressed to Eggleston.) Mrs. Gordon returned to her apartment and as her husband was doing so defendant picked Eggleston up and took her inside her apartment. The Gordons closed their door but she heard bumping and talking and once heard defendant say 'he loved her.'

The first time Mrs. Gordon saw them defendant was striking Eggleston around the face and neck; the second time she saw him hit her across the face and upper part of the body and saw him kick her but could not say whether it was around the lower part of her body. Mrs. Gordon saw that the middle panel of the door to apartment 206 was out. She heard no screams or cries from Eggleston but when she was lying in the hallway she was moaning.

Police Officer William H. Williams arrived with Officer Van de Veer about 10:45 p. m. He testified that the door was closed but the center wooden panel was completely out. He looked through the hole and saw Eggleston standing about three feet inside and holding a towel or a rag to her face; she had blood stains on her and a swelling about the left eye. Defendant was standing directly behind her. The officer walked in and asked her who had done this to her. She pointed to defendant and said he did it. Defendant made no response. Then the officer arrested him.

In the police vehicle in front of the building defendant said he had followed Eggleston to the building and asked to be admitted; she refused and he then hit the door with his right fist and knocked out the center panel; the whole door fell on Eggleston and he fell on the door as it landed on her and that caused her injuries. The officer did not examine the hinges of the door but he did open it with no unusual motion when he entered. Defendant did not say anything about decedent having called him that day. He said he had lived with her in January and had followed her to see if she was living with another man.

Later at the receiving hospital the officer saw a small laceration on defendant's right hand. He said he received it as he knocked the door in. 'I only hit the deceased a couple of times.' This was his first mention of striking her. There was a slight...