People v. Kristy, Cr. 4783

• Decision Date: 17 June 1952
• Docket Number: Cr. 4783
• Citation: 111 Cal.App.2d 695,245 P.2d 547
• Parties: PEOPLE v. KRISTY.
• Court: California Court of Appeals Court of Appeals

Page 547

245 P.2d 547

111 Cal.App.2d 695

PEOPLE v. KRISTY.

Cr. 4783.

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

June 17, 1952.

Hearing Denied July 17, 1952.

Robert B. Heggen, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., Elizabeth Miller, Deputy Atty. Gen., for respondent.

WHITE, Presiding Justice.

In an indictment returned by the Grand Jury of Los Angeles County and an amendment thereto, defendant was accused of the crime of murder. It was also alleged that he suffered a prior conviction of the crime of forgery, a felony, for which he served a term in the state prison. To the charge contained in the indictment as amended, defendant entered pleas of not guilty and not guilty by reason of insanity. He denied the prior conviction.

Trial was had before a jury which returned a verdict finding defendant guilty of murder of the first degree and recommending that he be punished by imprisonment in the state prison for the term of his natural life. The jury also found that the allegation of a prior conviction was true. The plea of not guilty by reason of insanity was withdrawn by defendant. A motion for a new trial was denied and sentence of imprisonment in the state prison for life was pronounced against defendant.

From the judgment of conviction and the order denying his motion for a new trial, defendant prosecutes this appeal.

Before epitomizing the factual background which gave rise to this prosecution, we pause to note appellant's claim that where there is a conflict in the evidence the testimony given 'on both sides' should be narrated. However, the rule is that on appeal in a criminal case following a conviction, the evidence must be considered in the light most favorable to the prosecution. This, for the reason that an appellate tribunal is not authorized to retry the cause. It is the function of the jury in the first instance, and of the trial court after verdict to determine what facts are established by the evidence. It is only when it is made clearly to appear that upon no hypothesis whatever is there sufficient substantial evidence to support the conclusion reached in the trial court, that the verdict returned by the jury and approved by the trial judge on motion for a new trial, may be set aside upon the ground of insufficiency of the evidence. As was said in People v. Newland, 15 Cal.2d 678, 681, 104 P.2d 778, 780, 'We must assume in favor of the verdict the existence of every fact which the jury could have reasonably deduced from the evidence, and then determine whether such facts are sufficient to support the verdict'.

With the foregoing rules in mind and after reading the voluminous record herein, covering more than 1,000 pages, we regard the following as a fair resume of the evidence as reflected by the record herein, and sufficient for an understanding of the points presented for our consideration.

The record reveals that in 1937 defendant and Margaret Frances Thomas commenced living together as man and wife, and in December, 1937 a daughter, Helen, was born to them. However, defendant denied the truth of this testimony given by Helen's mother. After the birth of Helen the defendant and the mother of the former were known as Mr. and Mrs. Kristy, although the defendant's name was Krystopik.

In 1940 or 1941 Mrs. Kristy's two children, who were not the children of defendant, named Betty and Raymond, came to live with them. In this regard defendant's testimony was that the two children just mentioned had lived with foster parents for several years, were grossly neglected, and that he was responsible for and insisted upon bringing the children into his home. All of them continued to live together until April, 1950, when Mrs. Kristy left their home in Downey, California, at the request of defendant. She left the three children with defendant when she moved away, but Helen went to live with her in June of 1950. During the year following her departure from the home, Mrs. Kristy did not see her children Betty or Raymond, although she talked to Betty on the telephone.

In June, 1951 defendant and Betty asked Mrs. Kristy to return to the family home, which she did on June 15, 1951. It appears from the record that about a week before Mrs. Kristy returned Betty had told her that the defendant had 'had things to do' with her. Betty was then 20 years old.

On June 20, 1951, a few days following her return, Mrs. Kristy received her paycheck. When she arrived home defendant who was there, commenced a discussion with her as to what bills she should pay and their conversation led into an argument during which defendant told Mrs. Kristy about 'having things to do with Betty'. Testimony reveals that defendant said, 'Well, * * * I'll tell you now, * * * I have screwed her, * * * I intend to screw her as long as she is in this house'. This conversation is denied by defendant. There is in the record evidence that Mrs. Kristy then said, 'Oh, no, you won't,' and that defendant said, 'Well, pack your damned clothes and get out of here than'. Mrs. Kristy told defendant that she would. Later, when Betty came home from work Mrs. Kristy talked to her about what the defendant had stated, saying to Betty, 'He said, Betty, that he had screwed you and he was going to keep on screwing you as long as you was in this house.' That Betty, according to the witness, 'turned at him (defendant) and her blue eyes turned black' and that she said, 'You won't Daddy, * * * you are not touching me another time.' That defendant then said, 'You all can pack your clothes and move'. According to the testimony of Mrs. Kristy she said that they would do so but that when defendant discovered that all of the children were going to go with their mother, he asked her not to leave, with which request she complied.

On June 20, 1951, after Mrs. Kristy had agreed to remain, she and defendant had a talk. He said, 'If Betty leaves this house I'll kill her'. Mrs. Kristy testified that she told him he wouldn't 'get by' with it and he said that he knew that, but that he would kill her and that if Mrs. Kristy interfered he would kill her also. On June 22, 1951, defendant was drinking, and he kept repeating that he was going to kill Mrs. Kristy and Betty.

On June 23, 1951 Mrs. Kristy and the children were going to a square dance and she asked defendant to go. He stated that he had a telephone call to make and whether or not he went would depend on the outcome of the telephone call. However, he refused to telephone unless the others went out to the automobile. Mrs. Kristy, listening from the outside, heard defendant say over the telephone, 'Well, my son likes to shoot too.' Mrs. Kristy had seen defendant tear out an advertisement from a newspaper that afternoon and the next day after hearing the foregoing telephone conversation she obtained an unamutilated copy of the paper and compared it with the one from which the advertisement had been torn. She thereby discovered that the advertisement which had been torn out was one which offered guns for sale. On June 23, someone who gave his name as 'Frank Kristy' called a telephone number listed in an advertisement in the paper and asked to buy a small gun. During the week following June 24, 1951, defendant threatened Mrs. Kristy and Betty practically every other night and upon one such occasion told Betty that she did not have long to live.

On July 3, 1951, defendant said that he was going to make it a 'real Fourth of July'; that it was not going to be 'with just firecrackers'. When Mrs. Kristy asked defendant what he meant, the latter replied that he was going to kill Betty on the Fourth of July, and when Betty came in that night defendant told her she did not have very much longer to live. After the girls had retired for the night defendant remained seated on the side of the bed occupied by Mrs. Kristy and himself. He kept repeating that he was going to kill Betty. Helen got up and went out to the kitchen. Upon her return defendant asked her three times what she had and she finally said, 'Well, Daddy, * * * I have got a butcher knife. If you dare lay your hands on Betty, * * * I'll cut your throat from ear to ear'. Defendant then accused Mrs. Kristy of influencing the children against him and when she said for that he was himself responsible, he stated, 'Well, I guess I'll just have to do away with the whole family'. It is in evidence that defendant, during that evening, was drinking.

On the morning of July 4, Mrs. Kristy discovered both telephone wires in the house had been cut. Defendant taped them together, saying, 'Well, I must have done it'.

On July 5, 1951, Mrs. Kristy, Betty and Helen were planning to swim at Long Beach. After dinner they went to Bellflower to purchase a suit for Helen. Upon their return Mrs. Kristy sat in the dining room altering the buttons on the suit when the girls started to take care of the dishes in the kitchen. Mrs. Kristy mentioned that she was going to take the girls swimming. Defendant was sitting in the living room and without saying anything he went to the bedroom or back porch and returned to the kitchen. Thereupon, he pulled a gun out of his shirt and said, 'You didn't think I had a gun, did you?' Mrs. Kristy jumped between defendant and Betty, whereupon the former told her to get out of the way. He kept the gun pointed at the three of them. The testimony was that it was a small gun and that defendant's hand covered most of it. Mrs. Kristy said, 'Frank, * * * for God's sake. Don't do anything drastic'. Whereupon defendant said, 'Well, that son-of-a-bitch there should be pleading for her life, not you'. Helen stepped toward him and defendant told her to get back, that he would just as soon kill her as anybody else. He went to the service porch and motioned with the gun for the women to come out there. They went out and while he kept the gun pointed at them defendant reached into his bedroom and got Betty's purse which he...