People v. Ogg, Cr. 5972

• Decision Date: 31 March 1958
• Docket Number: Cr. 5972
• Citation: 323 P.2d 117,159 Cal.App.2d 38
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Francis Marion OGG, Defendant and Appellant.

Page 117

323 P.2d 117

159 Cal.App.2d 38

The PEOPLE of the State of California, Plaintiff and Respondent, v. Francis Marion OGG, Defendant and Appellant.

Cr. 5972.

District Court of Appeal, Second District, Division 2, California.

March 31, 1958.

Hearing Denied May 27, 1958.

Morris Lavine, Wm. J. Clark, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., Dan Kaufmann, Deputy Atty. Gen., for respondent.

FOX, Presiding Justice.

Defendant was convicted of murdering his wife on Christmas day, 1956. The jury fixed the offense as murder in the second degree. The jury found the charge that defendant had suffered a prior felony conviction for forgery to be true. Defendant's motion for a new trial was denied and he was sentenced to the state prison. He has appealed from the judgment of conviction.

In seeking a reversal defendant contends (1) that the corpus delicti was not sufficiently established to warrant the introduction of his extrajudicial statements; (2) that the evidence is insufficient to support the conviction of second degree murder; and (3) that the court erred in failing to give an instruction on excusable homicide as defined in section 195 of the Penal Code. In view of defendant's first and second contentions, it is necessary to set forth the evidence in considerable detail.

Defendant's wife died as the result of a fractured skull with intracranial hemorrhage and cerebral lacerations. She was found dead in her home in West Covina by her daughter on December 27, 1956, at approximately 9:00 p. m. Her body way lying on a bed in a spare bedroom, covered by a comforter. There was blood on the davenport in the living room, on a pillow, and on a towel on the davenport. Her Lincoln car was missing from the garage; the mechanism of a lady's wrist watch was on a coffee table, and on her left arm was the band and empty case. A note was found in the handwriting of defendant on the kitchen drainboard; it was written on the back of Christmas wrapping paper and read: 'I can't wake Betty up and I'm frightened. I swear I didn't hit her or hurt her. Francis.'

The deceased was 46 years old, 5 feet 4 inches in height, and weighed 101 pounds. An autopsy was performed on the body by Dr. Newbarr of the coroner's office. He found multiple superficial abrasions on the left forehead, above and lateral to the right eye and on the left side of the face. There was a reddish purple discoloration with swelling of the soft tissues around the right eye, and a very small abrasion over the bridge of the nose. Also, there were abrasions in the skin over both elbows, the right forearm, and on the anterior surfaces of both legs. The entire right side of the underscalp was discolored, as well as the left frontal area. There was hemorrhage in the right temporal muscle, and the left temporal muscle revealed damage. Two subdural hematoma were found, one extending over the left side of the head and measuring one inch in its thickest portion, the other on the right side being thin and localized. There was widespread damage extending throughout the left side of the brain, and small localized contusions in the right side and in the left rear portion. There was hemorrhage toward the base of the brain. There was a fracture nine inches in length commencing one and a half inches above the right ear; it descended into the base of the skull toward the front of the head, crossing the midline into the left side.

Dr. Newbarr found the discoloration to the right eye difficult to evaluate. It was his opinion that this condition could have been the result of the application of some external force, or the result of the fracture because of its nearness to the right anterior fossa at the base of the skull. The fracture could have been the result of a blow to the head with a hard, blunt object, or the result of the head projected against a hard object. In the doctor's opinion there was no connection between the external injuries on the left side of the head and those on the right. Also, it was his opinion that the fracture was caused by one injury and that there was no connection between the fracture and the injuries to the left side of the forehead. If the fracture was caused by a fall it must have been a dead weight fall, full length on a hard surface. The doctor did not feel that the fracture could have resulted if the deceased had merely collapsed, folded up and fallen. Considerable force was necessary to cause the fracture.

Deceased's daughter came to her home on Christmas day. At that time, with the exception of an abrasion below her right knee, the deceased had no other marks on her body. The deceased complained that defendant had not come home until 12:00 o'clock on the night before, and that when he came home on Christmas eve he had been drinking and had hit her and knocked her down. She told her daughter that she had sustained the abrasion that night. The daughter further testified that they all visited friends of her mother and defendant; that she stayed there until 1:00 o'clock in the afternoon and then left, taking her younger brother with her. This was the last time she saw her mother alive.

Some time between 4:00 and 4:45 on Christmas day defendant and decedent drove to the home of Clyde Faust in West Covina. Defendant went in but decedent drove off. In the meantime Faust, defendant and one Orville Cook had some drinks in the breakfast room. Defendant told them that he and his wife had been at Bill Bird's for several hours and had had a good time. A few minutes later the deceased walked in. She appeared to have been drinking quite a little. She called defendant a vulgar name and berated him. Cook persuaded her to sit down, and mixed a drink for her. Defendant's attempt to placate her resulted in her quieting down for a few minutes; however, she again began to berate him; among other things she said: 'I'm going to tell your probation officer on you. You've been writing some of my checks again.' At this point, Cock left to replenish the liquor supply; upon his return he mixed another round of drinks; before they were consumed the deceased threw a glass ash tray at defendant, which broke when he dodged it. Faust thereupon told defendant and his wife that they couldn't fight in his home. Defendant complained to his wife that she was ruining him with his friends, and suggested that she go home. She countered, 'Why don't you go home with me?' He replied, 'I am going to stay here with my friends.' She then said, 'Well, I wasn't asked to go home.' Thereupon Faust asked her to leave. Cook testified that at this point defendant picked the decedent up in his arms and carried her out. Faust's version of this incident was that defendant put his hands on decedent's shoulders, turned her around and started her toward the living room door, where they disappeared from his view.

The living room adjoins the kitchen; it was 30 feet from the kitchen to the front door; the living room was carpeted, except the entry hall, which contained a cement floor referred to as a slump stone. After defendant and his wife left, Faust and Cook heard a scuffing noise, a dragging of feet, like rubbing one's feet on a rug. Then they heard the front door close. Cook went to latch the front door at Faust's request and discovered fresh blood spots on the slump stone of the entrance hall. Two of these spots were about the size of a baseball; there were one or two other smaller spots; all of these were within two or three feet of the door.

Defendant returned to the Faust home approximately an hour later, around 6:45 p. m. He came into the kitchen where Cook was and said, 'I'm afraid I killed her this time, Cookie.' Cook said, 'Francis, you're kidding.' Defendant replied, 'Well, if she wakes up--if she comes up with a couple of black eyes tomorrow, just remember she fell and hurt herself.' Faust testified that he showed defendant the blood in the entry hall, and defendant said, 'I didn't hit her, Mama took an awful fall.'

Defendant and Cook then left in the latter's car and drove to defendant's home, the defendant stating he wanted to see 'if Mommie got to bed all right.' Defendant invited Cook to see a new sport jacket which the deceased gave him for Christmas. They went into the bedroom and Cook observed the deceased lying in the bed on her side with a comforter covering her to her neck. She appeared to have dried blood on her right nostril, but he did not observe any other mark. She looked natural but there was no movement; he was some 10 or 12 feet from her. After the exhibition of the sport coat, defendant patted the deceased on the cheek, saying, 'I love you, baby,' and the men left. They had not been there more than five minutes. They proceeded to a friend's house for a drink and then to a bowling alley. While enroute defendant said to Cook: 'I'm afraid I hurt her this time,' and Cook replied, 'Francis, you better quit that * * *.' At the bowling alley Cook noticed blood on the front of defendant's trousers. Defendant told him 'that came from Mama's nose.' Defendant and Cook returned to the Faust home a little after 10:00 o'clock. At that time Faust gave defendant his wife's shoes which had fallen off her feet. Cook and defendant left there between 10:30 and 11:00. Defendant's home was only a few blocks from the Faust home.

At 7:30 a. m. on December 26th defendant cashed a check for $50 at a West Covina gas station. The check was payable to cash and purported to be signed by Edna C. Rosedale, Rosedale being the deceased's previous married name. The check, however, was in defendant's handwriting. The defendant was driving a Lincoln automobile. He told the attendant that his mother or mother-in-law was either sick or had passed away.

Harold J. Tucker testified that he was at the home of a neighbor of defendant and decedent by the name of Hamm in the early part of November, 1956, about 8:00 o'clock in the evening, when decedent ran through the house saying '...