People v. Mazza

• Decision Date: 22 September 1955
• Docket Number: Cr. 1035
• Citation: 287 P.2d 798,135 Cal.App.2d 587
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Frank F. MAZZA, Defendant and Appellant.

Page 798

287 P.2d 798

135 Cal.App.2d 587

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

Cr. 1035.

District Court of Appeal, Fourth District, California.

Sept. 22, 1955.

Hearing Denied Oct. 19, 1955.

Pentoney & Tebbetts, San Diego, for appellant.

Edmund G. Brown, Atty. Gen., and Norman H. Sokolow, Deputy Atty. Gen., for the People.

MUSSELL, Justice.

Defendant was charged with having murdered one Emma Orr on August 13, 1954, in the county of San Diego. A jury returned a verdict finding him guilty of the crime charged, fixed the degree as murder in the first degree, and punishment as imprisonment in the state prison for life. His motion for a new trial was denied and he appeals from the judgment of conviction, contending (1) That the verdict is contrary to the law and evidence; and (2) That evidence was improperly received.

The evidence, viewed in the light most favorable to the prosecution, People v. Spreckels, 125 Cal.App.2d 507, 509, 270 P.2d 513, and briefly summarized, is as follows: Mrs. Emma Orr, with her sixteen year old son, lived with her sister-in-law near the intersection of College Avenue and El Cajon Boulevard, in the city of San Diego. At about 3:10 a. m. on Friday, August, 13, 1954, Mrs. Grumbles, who lives on a hill by and overlooking College Avenue, heard a lady groaning and saying several times, 'Help. I have been hit. Please help. I am hurt.' Mrs. Grumbles then called the police, who arrived at the vacant lot below the Grumbles house in about five minutes.

Police officer McFadden testified that shortly after 3:00 a. m. on August 13, 1954, he and officer Dawson received a radio call to go to the vicinity of College Avenue and Adelaide; that as they started down College Avenue they heard a voice calling 'Help'; that they turned their car lights out onto a vacant lot and observed Mrs. Orr lying on the ground. Officer Dawson was the first out of the police car and observed Mrs. Orr lying on her back at the foot of a bank of dirt near an apartment building which was under construction. She was able to talk but she said she could not move. An ambulance was called and while they were waiting for it to arrive, Mrs. Orr told officer Dawson that she had been to the Paris Inn, had some beer there, and then had gone to Horton Plaza to catch her bus; that a man, whom she had never seen before, driving an old car, tried to pick her up; that she ignored this man and boarded the bus which goes out to College Avenue; that when she got off the bus on College Avenue, the man was still following her; that she walked south on College Avenue along the sidewalk as far as she could; that this man would make a 'U' turn at every intersection and would wait for her to cross the intersection, insisting that she get in the car; that after the sidewalk ended, she walked on the left side of the highway; that this man proceeded on down below, made a 'U' turn and came back at a fast rate of speed; that she knew he was not going to stop and she jumped off the highway onto the vacant lot; that he followed her, ran over her and shoved her into the bank; that the man was middle aged, dark complected, and was wearing a white shirt.

Officer McFadden observed that Mrs. Orr was lying flat on her back; that she was covered with a film of dirt; that her dress was pulled up; that there was some blood on her head and a spot on her leg; that her coat was lying on the bank above her and her purse was on the ground near it. He observed two vertical indentations, about five feet apart and six inches deep in the bank directly above Mrs. Orr, and a horizontal indentation across the top of the two vertical indentations.

Officer Dawson observed that the ground had a lot of traffic over it, that it was dusty, and that from the dust left on the pavement, there appeared to be a place where a car had backed out and turned north on College Avenue. Officers Martindale and Cota arrived at the scene within five minutes after officers Dawson and McFadden. Officer Martindale estimated the distance of the vacant lot as approximately six blocks from College Avenue and El Cajon Boulevard. He observed abrasions on Mrs. Orr's legs and that her face was covered with fine dust, which was the same color at the dirt on the bank. He also noticed the two indentations in the bank, the approximate width of the tires of a car, and heard Mrs Orr say that she was paralyzed from the waist down; that a car had come off the street and run over her; that it was the same car that 'had tried to pick her up' downtown; that as she was walking down College Avenue, the car had gone back and forth, north and south, on College Avenue, several times; that finally while going north on College Avenue the car ran off the roadway onto the vacant lot where she was and had run over her.

Officer McFadden returned to the scene at about 6:00 a. m. and observed a place where a car had left College Avenue and made a mark on the roadway at the edge of the pavement in a straight line toward the two indentations on the bank.

Mrs. Orr was taken to the county hospital, where her clothing was cut off and she was prepared for emergency treatment. She was covered with dirt from her waist up. There was considerable dirt in her nose and ears and on her face, as well as in her eyes.

Dr. Worthylake, who was called by the defense as a witness at the trial, testified that he was a surgical resident at the county hospital; that he saw Mrs. Orr in the receiving room in the hospital at approximately 4:00 a. m. on August 13th; that Mrs. Orr had compression of the cervical segment of the spinal cord with paralysis of the lower extremities and partial paralysis of the upper extremities; that he partially shaved her skull in order to place a pair of tongs in the skull to provide traction on the cervical spine. He asked Mrs. Orr what had happened and she related to him substantially the same facts as she had related to officers Dawson and McFadden at the scene of her injuries.

Naomi Geib, a witness called on behalf of the defendant, testified that she was an interne at the county hospital and first saw Mrs. Orr there at about 3:40 a. m. on August 13th; that she was present when part of the conversation between Dr. Worthylake and Mrs. Orr took place; that Mrs. Orr talked coherently; that they attempted to find out from her who her assailant was and that she said it was a gray car and that the man had hair about the color of the doctor's. She testified further that Mrs. Orr 'kept always saying 'He turned the wheels on me', and 'He came back after hitting her once, he came back and hit her again.'

Mrs. Orr passed away at about 10:00 p. m. on August 14th and an autopsy was performed by Dr. Weston, pathologist for the San Diego county coroner. Dr. Weston testified at the trial and was shown various photographs of Mrs. Orr which were taken at the time of the autopsy. He described the injuries on Mrs. Orr's body, using the photographs for reference. He noted a number of abrasions and contusions on the forehead and on the face and differentiated for the jury the cuts that appeared incident to the surgery. Among the injuries to her extremities the doctor noted bruises on her legs which he believed were formed at the same time because they were in exact apposition to each other. He stated that there was a bruise on the back of Mrs. Orr's neck and internal examination disclosed a depressed fracture in the head in the right occipital area. It measured eight centimeters or a little under four inches. He testified further that internal hemorrhage was found in both the head and neck area. The second, third and fourth cervical vertebra, which are in the area of the neck, were broken. This had resulted in pressure on the spinal cord and hemorrhage. The pressure was such as to produce paralysis. In the doctor's opinion, the cause of death was a combination of the pressure from the fracture on the back of her head operating on the cerebellum, brain stem, in conjunction with the changes in the spinal column as a result of the fracture of the cervical vertebra.

John Faria, a bus operator for the San Diego Transit System, was operating a bus which left Fourth Street and Broadway in downtown San Diego at approximately 2:30 a. m. on the morning of August 13th. Faria had parked his bus at about 2:05 a. m. on Fourth Street near the corner and gone into Leightons, a nearby restaurant. He saw Mrs. Orr come into the restaurant. She inquired what time the bus departed and had a cup of coffee. Faria left the restaurant at 2:15 a. m., stopped in front of his bus and smoked a cigarette. A few moments later Mrs. Orr came out and stood two or three feet from Faria. At this time an automobile was driven up in front of the bus and stopped directly opposite Faria. The automobile was a two door, 1946 or 1947 Oldsmobile, of a 'dirty' gray color. The driver then pulled up opposite Mrs. Orr and stayed in that position two or three minutes, looking at her. He said something to her and Faria heard her say 'Not a chance. I don't get in that car. I would take a slow boat to China.' The driver of the automobile then made a right turn on Broadway and two or three minutes later he again drove up immediately opposite Mrs. Orr and stopped for two or three minutes and then drove right on Broadway. Mrs. Orr got into the bus and when it reached the intersection of College Avenue and El Cajon, at approximately 3:00 a. m., she left it and started walking toward her home. Faria told her to be careful, that he thought the car had followed them. She replied that she was not worried. Faria identified appellant as the man who was driving the gray Oldsmobile and identified it as the same car he saw at Fourth and Broadway.

James Rutledge, a guard at a department store in San Diego, testified that about 2:15 a. m. on August 13th he observed a woman walking south on Broadway in a...