People v. Freudenberg
| Decision Date | 27 November 1953 |
| Docket Number | Cr. 2445 |
| Citation | 121 Cal.App.2d 564,263 P.2d 875 |
| Court | California Court of Appeals Court of Appeals |
| Parties | PEOPLE v. FREUDENBERG. |
Dunnell, Herbert & Dunnell, Fairfield, O'Hara, O'Hara & Healy, O'Hara, Randall, Castagnetto & Kilpatrick, Vallejo, for appellant.
Edmund G. Brown, Atty. Gen., by Doris H. Maier, Sacramento, for respondent.
On November 6, 1952, the Grand Jury of Solano County returned an indictment against the defendant, Herman Freudenberg, Jr., charging him with the offense of manslaughter in that on the 18th day of October, 1952, he 'did wilfully, unlawfully, feloniously and without malice, kill one Elizabeth Anne Freudenberg, a human being.' Upon being arraigned defendant made a motion to set aside the indictment for lack of reasonable or probable cause, pursuant to section 995, subd. 2, of the Penal Code. The motion was denied and defendant entered a plea of not guilty. Trial was had before a jury and the jury returned a verdict finding defendant guilty of manslaughter as charged in the indictment. The court then referred the case to the probation officer for investigation and report and, after a hearing on the report, denied defendant's motion for probation, and pronounced judgment. Defendant thereupon filed this appeal from said judgment.
Appellant urges a number of grounds for reversal of the judgment, but before discussing them we shall give a summary of the evidence.
Appellant, Herman Freudenberg, Jr., was a Buick dealer in the city of Fairfield in Solano County where he resided with his wife, Betty Freudenberg, her two children by a former marriage, and their daughter, Madeline, aged two and one-half years. On Saturday, October 18, 1952, defendant went to work as usual about 8:00 a. m. and returned to his home about 1:00 p. m., after his place of business closed. Defendant spent the afternoon doing yard work at his home and receiving callers, and his wife spent most of the afternoon with him in the yard, tending the couple's young daughter. During the afternoon a Mr. and Mrs. Bushing, friends of the Freudenbergs, stopped at the Freudenberg home and the two couples sat around talking, and divided the contends of two cans of beer. Defendant and his wife had a dinner engagement with a Mr. and Mrs. Crane and a Mrs. Shirley Walt, and later in the afternoon they had a drink of Bourbon and water while they were dressing to go out for dinner. At about 7:30 p. m. Mr. and Mrs. Crane and Mrs. Walt arrived at the Freudenberg home, and two rounds of drinks were served. About 8:00 p. m. the group left the Freudenberg home to go to dinner at a restaurant known as Dick's, which was about a mile from the Freudenberg home in Fairfield. Upon entering the Crane automobile Betty Freudenberg remarked to defendant that the garage door was open and requested defendant to close it. Defendant replied that there wasn't anything of value in there to be stolen and that it was not necessary to close it, but his wife again told him to close it and he then closed the garage door. Defendant evidently did not like the tone of his wife's voice and when he returned to the car Mrs. Walt told Mrs. Freudenberg, 'Betty, I think you got a dirty look.' Nothing more was said at the time and the group drove to the restaurant. The Crane car was parked a short distance from the restaurant, and while the Cranes and Mrs. Walt entered the restaurant the Freudenbergs stood outside arguing. Betty said to defendant, 'What's wrong with you Herman, anyway?' and defendant replied, 'Well, I didn't like the tone of your voice when you told me to close the garage door.' Betty then stated, 'Well, why don't you pack your bags and leave?' Betty then started to walk away from the restaurant but defendant and Mrs. Walt prevailed upon her to return to the party. Before entering the restaurant Betty apparently made some remark to defendant which made him angry, and he started walking toward home. Betty entered the restaurant and asked Mrs. Crane for the car keys so that she could go and pick up the defendant, but Mrs. Crane said that Mr. Crane would drive her, and Mr. Crane and Betty drove up the road about one-quarter of a mile to where defendant was walking, and Betty asked him to come back to the party. Defendant refused, telling her to do what she wanted. Betty then stated to Mr. Crane, 'I had better get out and walk with him because if I don't he will never forgive me.' Mr. Crane stopped the car and Betty walked a short distance opposite defendant and stated that she was sorry about the garage door. She said: 'If it will do any good I will get down on my knees and tell you I am sorry.' She proceeded to get down on her knees, but defendant picked her up almost immediately and stated that he was too embarrassed to go back to the party and that he was going home. Mr. Crane then turned his car around and left them. This was between 8:30 and 8:45 p. m., and the Freudenbergs were then about three blocks from their home.
Defendant and Betty walked home by different routes, she arriving first. She entered the house and saw her daughter Phyllis who was watching television in the living room. Defendant did not enter the house when he arrived but got into his automobile which was parked in front of the house and sat in the automobile for a short time until Betty came out of the house. She did not see him in the automobile, but he called to her and asked her where she was going and she said she was going out to look for him. They then entered the house together, and it was then between 9:00 and 9:30 p. m., and defendant went to their bedroom and began to undress, when Betty entered the bedroom and they apparently resumed their quarrel, and Betty stated to defendant, 'Well, why don't you pack your bags and leave?' to which defendant replied, 'O.K., I will.' Defendant then put on his shirt, tie and coat and went to the kitchen to mix himself a drink, and found his wife already there having a drink. Defendant testified that they then discussed how silly it was to quarrel over such trivial matters, reviewed their happy married life together, conversed about matters in general, and embraced and kissed each oher several times. During this time, according to defendant, he and Betty had 'two or three or maybe four drinks' of Bourbon and plain water. After the couple had talked for some time, at about 11:00 p. m., Betty stated to defendant, 'Herman, sometimes you make me so mad I could kill you.' The record shows the following testimony by defendant:
'Q. [Mr. Lynch] Now, this statement she made about 'Herman, sometimes you make me so mad I could kill you,' did this all come out of the clear sky, there was nothing leading up to it? A. There was nothing leading up to it. No, it was a joking remark.
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Defendant replied to the effect that 'Well, I could make it easy for you' or 'I can help that.' He then went to their bedroom, opened the bureau drawer and took out his .45 caliber army type semi-automatic pistol which he had retained from his military service. The gun was not loaded, so defendant took out a loaded clip which was also in the drawer, put it in the gun, placed a shell in the chamber, which cocked the gun while he was on his way back to the kitchen. Upon entering the kitchen defendant found his wife sitting on a chair-type metal stool, and, according to his testimony, he went up to her and said, 'Here is the gun.' In defendant's testimony at the trial is the following:
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The bullet went through Betty's midsection and exited on the left side of her back about three or four inches above the belt line. In the opinion of the ballistics expert, Roger Greene, at the time of the gun's discharge it was directly against Betty's sweater as the powder burns were in the inside of the fabric, the fabric from the bullet hole was missing and had been blown out by the blast and a tear in her sweater suggested that the muzzle of the gun went through the hole after the bullet was fired and tore the garment. The bullet also penetrated the chair in which Betty was sitting at a height of about 32 inches and went into the wall at the back of the chair at a height of about 27 inches. The bullet had a downward course. ...
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