People v. Martina, Cr. 3110

• Decision Date: 20 March 1956
• Docket Number: Cr. 3110
• Citation: 294 P.2d 1015,140 Cal.App.2d 17
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Marie Julius MARTINA, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 1015

294 P.2d 1015

140 Cal.App.2d 17

The PEOPLE of the State of California, Plaintiff and Respondent, v. Marie Julius MARTINA, Defendant and Appellant.

Cr. 3110.

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

March 20, 1956.

Joseph C. Haughey, Toland C. McGettigan, San Francisco, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., William M. Bennett, Deputy Atty. Gen., for respondent.

BRAY, Justice.

Defendant appeals from a jury verdict judgment of conviction of murder in the second degree and from an order denying new trial.

Questions Presented.

1. Sufficiency of the evidence (a) that death was due to criminal means; (b) that defendant was the assailant.

2. Defendant acted while unconscious (a) as a matter of law; (b) instructions.

3. Alleged misconduct of district attorney.

4. Instructions and district attorney's comment on first degree murder.

Evidence. (a) Means of Death.

In the early afternoon of Wednesday, September 1, 1954, a chambermaid opened hotel room No. 301 and found therein lying on the bed the partly unclothed body of 75 year old Florence Hopkins. Both her eyes were blacked and swollen shut. There was blood about her face. She was lying on her back upon her dress with her blouse and slip pulled back and torn. Her brassiere was unhooked, exposing her chest. Red matter, which a police inspector believed to be blood, was found on and about the bed, on the wall about the bed and on a pillow found on the floor. Mrs. Weir occupied the room adjoining No. 301. Between 2 and 4 a. m. September 1st she was awakened by the scream of a woman in that room. She then heard three or four bumpings which sounded like somebody had been hit. Between each bumping she heard a woman's voice saying, 'You hurt me so.' A man's voice said 'Keep quiet,' the utterances being a couple of minutes apart. The witness heard rather loud sobbing or crying during the entire time. The noise gradually got lighter and finally stopped.

The surgeon who performed the autopsy found a large bruised area over the left forehead extending from the hair line well down onto the check, bruises about both eyes, laceration of the right lower eyelid about an inch long; fracture of the nasal bone, puffing and bruising of both lips; area of hemorrhage in the upper chest muscles, 'bloodstaining of the trachea, larynx and bronchi, * * * with some mucoid matter and blood within their lumens * * * marked edema of the lungs.' All injuries he considered to be of recent origin. In his opinion the injuries were caused by external force or violence. 'It is even likely' that human fists caused the injuries, and if so, it would have taken at least six blows. Death was caused by filling of the lung with blood from the nose.

A pathologist who worked on the tissues and organs of the deceased found certain abnormalities, pinpoint hemorrhages in the brain, a hemorrhage between the brain covering and the brain itself, a large amount of bloodstained mucous material in the windpipes and air passages in the neck and lung. He attributed these conditions to direct physical violence or blows. He stated that there must have been severe physical violence to the chest (like being hit by an automobile or falling from a building) and not an ordinary mild injury. He attributed death to 'a loss or a decrease in the ability of the body to get oxygen into the blood.' The injuries mentioned all played a part, no one by itself producing the whole picture. The blood alcohol level indicated a moderate degree of intoxication. This made the victim more vulnerable to death of this type.

Defendant's contention that the evidence was not sufficient to establish death by criminal means is based mainly upon the following, the absence of external bruising of the chest and head area (other than around the eyes, nose and lips), the testimony of the surgeon and the pathologist that each of the conditions he found possibly could have been due to a fall, ¹ the fact that a witness who saw defendant and deceased together in a bar about 10 p. m. saw deceased bump into the side of a booth and fall into the seat, and that there was no evidence of choking or damage to the neck nor of any sexual abuse or intercourse. All of these were matters for the jury. Coupling the conditions found by the medical men, particularly that in their opinion these conditions could have been caused by blows, with the testimony of Mrs. Weir and the conditions in the room, plus the entire evidence in the case, it is obvious that there was sufficient evidence to support its implied finding that deceased met death by criminal means.

Evidence. (b) Defendant was the assailant.

A witness testified to seeing defendant and deceased about 10 p. m. Tuesday night seated and drinking beer together in a bar across the street from the hotel. They left the bar together about 12 or 12:30 a. m. There were then no marks or blood on deceased's face. Deceased staggered when leaving. The witness Shoup was the night clerk at the hotel. About 12:30 a. m. September 1st, defendant registered, signing 'M. J. Martine, 3613 S. Ord, Eugene, Oregon.' Shoup asked if his registration included a wife and when informed that it did, the clerk added '& Mrs.' on the register. Defendant paid for the room, took the key and went up in the elevator. About 5 minutes later, defendant left the hotel, stating that he had to see if he could get his truck unloaded. About 1:15 or 1:20 defendant returned and stopped at the desk. When asked if he had brought his wife in yet, he replied, "No, we are coming in,' what they call 'piecemeal." Defendant left. About 1:30 the witness saw defendant and a woman standing in front of the elevator. Her back was towards the witness. She wore a red colored coat and 'her legs were kind of shaking a little bit; not too much, but some.' At 2:40 as the witness was checking the floors, he saw defendant coming down the stairs between the third and second floors. The witness asked defendant why he was not using the elevator and he replied, 'No, I'll walk.' The witness took the elevator to the lobby and again met defendant as the latter was going out the door. Defendant stated, 'Well, I have got to wake up somebody now.' Defendant appeared to be sober.

Inspector Murray testified that after defendant's arrest he took defendant to the bar and the hotel but that defendant insisted he could not recall anything from Tuesday afternoon until Wednesday morning. In defendant's clothing was found a paper written by defendant on September 1st which appears to be a will. The inspector found no blood on any of the furniture in the room except the bed. None of the furniture was overturned. No fingerprints were found except a 'smudge' on the faucet in the wash basin. It was of no value for identification purposes.

Defendant neither testified nor offered any evidence. The day after the killing defendant made a statement to the assistant district attorney which was taken down in shorthand and was read to the jury. Among other matters he stated that on Tuesday he went down to the employment office where he picked up and cashed a $21 unemployment check. He gave his wife $16 of it. From 1 o'clock Tuesday until late Wednesday evening he could not remember what happened or even if he left home. The scratches on his neck and upper lip were the result of shaving and the black and blue bruises on his knuckles resulted from bumps received at work. He smoked Tareyton cigarettes (a partially used package of them was in his possession when arrested) and a pipe and had recently used Dill's tobacco but could not tell what date. He denied using pipe cleaners recently but had used them in the past. (In room No. 301 a package of Dill's pipe cleaners and a crumpled Tareyton cigarette were found.) To all questions concerning his connection with the crime, he answered similarly to 'I don't deny it, sir, because I don't know.'

It is obvious from the foregoing statement of the evidence that while entirely circumstantial it clearly shows the defendant to have been the assailant responsible for the death of the deceased. Especially is this so, when one considers that it is equally obvious that the jury did not believe defendant's unsworn statements that he had 'blacked out.' '* * * circumstantial evidence is as adequate to convict as direct evidence.' People v. Koenig, 29 Cal.2d 87, 91, 173 P.2d 1, 3. The fact that there appeared to be a lack of motive for the crime was a matter for the jury to consider and did not overcome the other evidences of defendant's guilt.

Unconsciousness. (a) As a matter of law.

Defendant places great emphasis upon his unsworn statement that he had blacked out. He also had stated that he had previously suffered a head injury and on a prior occasion had also blacked out, and contends that as these statements were introduced by the plaintiff, such statements conclusively establish that if defendant committed the crime he did it while he was not conscious of his acts. In the first place, the mere statements 'I don't remember,' or 'I can't recall' are not sufficient to establish unconsciousness at the time of the commission of a particular act. But assuming that they were, the rule is not that statements of a defendant introduced by the prosecution are completely binding on the prosecution and fully establish their truth. They are binding on the prosecution and establish their truth only in the absence of proof to the contrary, People v. Toledo, 85 Cal.App.2d 577, 581, 193 P.2d 953; see also People v. Coppla, 100 Cal.App.2d 766, 769, 224 P.2d 828; People v. Marks, 111 Cal.App.2d 357, 359, 244 P.2d 771; and such statements may be contradicted by circumstantial evidence alone. People v. Shellenberger, 25 Cal.App.2d 402, 77 P.2d 506. Even testimony of a defendant under oath as to lack of consciousness may be overcome by circumstantial evidence. People v. Rayol, 65 Cal.App.2d 462, 150...