People v. Hopper

• Decision Date: 18 October 1956
• Docket Number: Cr. 2671
• Citation: 302 P.2d 94,145 Cal.App.2d 180
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Kenneth E. HOPPER, Defendant and Appellant.

Page 94

302 P.2d 94

145 Cal.App.2d 180

The PEOPLE of the State of California, Plaintiff and Respondent, v. Kenneth E. HOPPER, Defendant and Appellant.

Cr. 2671.

District Court of Appeal, Third District, California.

Oct. 18, 1956.

Robert C. Bienvenu, Leo J. Biegenzahn, Modesto, for appellant.

Edmund G. Brown, Atty. Gen., by G. A. Strader, Deputy Atty. Gen., for respondent.

VAN DYKE, Presiding Justice.

This is an appeal from a judgment entered upon a jury's verdict which found the appellant guilty of rist degree murder with a recommendation of life imprisonment. Defendant also appeals from an order denying his motion for a new trial.

Appellant and the victim of the homicide had been living together as husband and wife for approximately ten years. She was the mother of his four children.

Appellant contends that the evidence is insufficient to support a verdict of first degree murder. With this contention we agree, and this conclusion requires a somewhat detailed statement of the evidence. On July 5, 1955, at about 11:45 A.M., the Sheriff's Office of Stanislaus County received a call to investigate a death at the home of the appellant. A deputy sheriff proceeded to the home where he observed the body of the decedent, Milladean Hopper, lying on a bed. The cause of death was ascertained to be hemorrhage due to laceration of the kidney. The autopsy physician described the injuries to the body of decedent as follows: There were multiple injuries, bruises and abrasions by fingernails. Although there were no external wounds on the head, there was considerable hemorrhage beneath the scalp. This injury could have been caused by a blow from a fist but was not particularly characteristic of such a blow. It was more suggestive of a wound occasioned by falling on the floor or hitting a large, flat surface. It could have been caused by a kick. It was possible that the force which caused the fracture of the three ribs in the back was a crushing force applied to the front part of the body rather than a blow to the back part, and this would be as reasonable an inference as the inference that the fractures were caused by a blow. Without the injury to the kidney, death would not have resulted, with the possible exception of the head injury. The kidney is more vulnerable to a posterior than to an anterior blow. The fractures of the three ribs and the injury to the kidney were just as consistent with the application of a crushing force as the application of a blow of any sort with any type of a blunt instrument. There was no break in the skull. Of the multiple small bruises around the knee, more than a dozen in total, a number of blows from a blunt object would have been necessary to cause them. The bruises on the back about the waistline would not necessarily have been caused by the same blunt instrument that caused the bruises on the knee, and in the opinion of the autopsy surgeon the same instrument was not responsible. It was possible that all of the bruises had been caused by a fall from a car. With regard to the bruises on the lower limbs, they could have been caused by blows from a blunt object, they could have been caused by several kicks, they could have been caused by several falls to a floor, and they could have been caused by a fall from a car onto a road surface on which there was loose rock. The autopsy surgeon gave her opinion that the most likely possibility was that the bruises were caused by kicks. Taking the entire body, the overall pattern of the injuries was, in the opinion of the autopsy surgeon, not consistent with a fall on a roadway, which opinion was influenced somewhat by the absence of what the autopsy surgeon called road burns. On redirect examination the autopsy surgeon gave as her opinion that the probable cause of the breaking of the ribs was a direct blow which could have been from a boot, and that the rupture of the kidney was caused by a blow on the back of the body rather than by a crushing force applied to the front. The condition of the deceased's body, considering all the injuries thereto, was such that, in the opinion of the autopsy surgeon, the injuries were the result of a beating. The coroner testified that he had examined the body of decedent and that there were bruises all over the body which were not consistent with the type of bruises which would, in his opinion, have been received by a person falling from an automobile. Appellant and deceased had attended a Fourth of July dance, which they left about 2:30 A.M., in company with John McDonald. They entered appellant's car and drove to a restaurant, where the two men had something to eat, but decedent, stating she wanted to sleep, remained in the car. About 4:30 A.M. they drove to the Hopper residence, whereupon McDonald stated he wanted to go home; and the three then drove to Oakdale, the two men in the front seat, Mrs. Hopper in the back. McDonald testified that during this ride the two seemed to getting along well together and that, in fact, at one point in the conversation appellant had stated that decedent was the 'best woman he ever had', and decedent had responded that appellant was 'not so bad' himself. It was after McDonald got home and appellant had driven away that decedent received the injuries from which she died. While appellant and decedent were at the dance appellant danced with another woman and asked her if she was still going with a certain individual. When she replied she was, he told her that if she would get rid of that man he would get rid of decedent. There was nothing to explain what might have been meant by the term 'get rid of'. During the same evening decedent shouted at appellant while he was on the dance floor, stating that she was tired and wanted to go home. Appellant replied, 'Damn it, you're drunk'. She stamped her feet and said, 'I still want to go home', whereupon he took her by the arm and with a jerking motion took her to the center of the floor where the two engaged in conversation with another man. On July 2, 1955, appellant and decedent went into a cafe and they were quarreling as they entered. Decedent was overheard to say, 'If you ever do that again I am going to call the cops'. The appellant replied, 'Goddamn you, if you do it will be the last Goddamned thing you ever do. 'I'll kick the _____ out of you'. Thereupon decedent began to cry. Several witnesses testified that on several other occasions appellant struck decedent and made threats to kill her; however, all this occurred long prior to the homicide. For instance, one witness testified to such an incident in February of 1954. On this occasion appellant referred to decedent as 'a two-bit whore', grabbed her by the hair, threw her to the ground, stepped back and kicked her a severe blow, causing her to scream, whereupon two men came out of a dance hall and stopped the fight. Later on, the same night, when the Hoppers had returned home, this same witness observed appellant slap decedent and push her across the bed. The witness thereupon left the room and went to another part of the house. She later saw decedent with red marks on her face. On this occasion the appellant tried to persuade this witness to have intercourse with him but was refused. Another incident occurred in the early part of 1952. A witness had observed appellant chasing decedent around the house. She was yelling and screaming and he had a garden tool of some kind in his hand. (He explained this by saying that it was in jest.) Three days later the same witness observed that the decedent had a black eye. Another incident occurred in October of 1953 when a witness heard a commotion and observed appellant striking somebody whom she could not identify. However, she heard appellant say, 'God damn you, I'll kill you, you bitch, you God damned bitch, I'll kill you'. Three or four days later this witness saw decedent and observed that her nose was swollen and her eyes were black. A week before the death of Mrs. Hopper and while the two were walking toward the Eatmor Cafe in Modesto, one witness observed Mr. Hopper as he walked beside decedent kick her 'in the seat' and a few steps later strike her on her left shoulder. In January of 1954 the pair, accompanied by another, went to Stockton. During the trip the two argued continuously, and the companion heard appellant tell decedent to 'Shut up or I'll get you'. The party returned to Modesto, arriving about 3 P.M. where Mrs. Hopper was scheduled to play the piano. Later that evening the witness testified he saw her bleeding at the mouth, with blood over her face and with disheveled hair. He asked a few minutes later of the appellant where decedent was, and appellant replied, 'If I ever catch her I will kill her'. On this same occasion another witness saw her walking down the highway in a condition which the witness described as 'all bloody' with blood over her face and the front of her dress. He tried to talk to her, but she would not talk. He stated her face was 'pretty well beat up'. About that time appellant drove up in his car, and decedent got into the car with him, and the two of them drove away. Another witness, who had an orchestra which played for dances in the neighborhood, within a few days of the homicide went to the home of appellant for the purpose of engaging decedent in his band. She had two black eyes and during the conversation appellant stated, 'she run off down the railroad tracks without her shoes on and when I found her I beat the hell out of her'. While these incidents were testified to, covering, as is seen, a range of several years, it is also without dispute that the two lived together steadily and maintained a family residence. It is also without dispute that appellant, for several years at least and because he claimed to have such an injury to his back that he was unable to work, was without employment and without income, and that he, decedent and the four children were supported by the...