People v. Pearl

• Decision Date: 14 January 1963
• Docket Number: Cr. 3332
• Citation: 211 Cal.App.2d 783,27 Cal.Rptr. 664
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Harold PEARL and Robert Kennedy, Defendants and Appellants.

Page 664

27 Cal.Rptr. 664

211 Cal.App.2d 783

The PEOPLE of the State of California, Plaintiff and Respondent, v. Harold PEARL and Robert Kennedy, Defendants and Appellants.

Cr. 3332.

District Court of Appeal, Third District, California.

Jan. 14, 1963.

Rudolf Binsch, Sacramento, for Appellant Pearl (appointed by Third Dist. Ct. of Appeal).

Richard A. Case, Sacramento, for appellant Kennedy (appointed by Third Dist. Ct. of Appeal).

Stanley Mosk, Atty. Gen., by Raymond M. Momboisse & Richard Lee, Deputies Atty. Gen., Sacramento, for respondent.

SCHOTTKY, Justice.

Defendants, Harold Pearl and Robert Kennedy, appeal from judgments of conviction entered after a jury found them guilty of the crimes of abortion and murder of the second degree.

Upon Pearl's request for counsel this court appointed Rudolf H. Binsch, Esq., to represent him on this appeal. Mr. Binsch has advised the court that he finds no valid grounds for an appeal and no brief has been filed on behalf of appellant Peral, but a brief has been filed by the attorney for appellant Kennedy which to some extent applies also to the appeal of Pearl.

Kennedy makes a number of major contentions in arguing for a reversal of the judgment, but before discussing them we shall give a brief summary of the evidence as shown by the record.

Edward James McEwen testified that sometime in April 1961 Martha M. had reason to believe that she was pregnant. After the problem was discussed with McEwen, the person with whom she had been intimate, it was agreed that they should locate someone to abort her. McEwen contacted a former friend, Sandra Smart. She told him to look up Kennedy who worked in the evening at the city parking lot at 11th and 'I' Streets. That evening McEwen located Kennedy and explained the situation to him. Kennedy stated he knew of a person who could help them and told McEwen to come back the following evening. After four or five visits to the parking lot to see Kennedy he was introduced to Pearl as the person who could help. There ensued a conversation as to the length of time of pregnancy, the amount of money for the 'operation,' and the suggestion that Martha have a laboratory test to determine whether in fact she was pregnant. Although the laboratory test was negative, deceased and McEwen were convinced that she was pregnant so McEwen went back to kennedy who said that he would contact Pearl and see if he could make the necessary arrangements. McEwen made several other visits to Kennedy during which they discussed the fact that McEwen did not have the money for the 'operation,' and while McEwen was there Kennedy made several telephone calls in which McEwen heard him ask for Harry, the name by which Pearl was known.

In the latter part of May, while McEwen was at the parking lot, he again had the opportunity of talking with Pearl. At this time Pearl told McEwen to bring the money and Martha and meet him at a specified location. Upon meeting Pearl, McEwen gave him $142 and followed him to his apartment located on 'O' Street.

Pearl proceeded to remove two instruments (one was plastic and resembled a knitting needle, the other was a metal object six to eight inches long) from the refrigerator and to place them in a pan of water which he heated on a hot plate. There was a disagreement between McEwen and Pearl and McEwen was told to wait in the bathroom. He looked out once and saw Martha lying on the bed but did not see Pearl do anything to her. Upon leaving McEwen gave Pearl his wrist watch as security for the money still due.

Because the first attempt was not successful another meeting was arranged. Again the same procedure was followed. (Instruments were removed from the refrigerator an McEwen waited in the bathroom.)

Subsequent contacts were made with Kennedy when the second attempt failed. Kennedy made an appointment for Martha to see Pearl on a Friday. This appointment was not kept, so through Kennedy another appointment was made for Monday, July 18, 1961. McEwen was in the hospital at this time so Martha went to Pearl's apartment alone.

There were other witnesses who testified that Martha was in good health; that she went to work in the morning, had lunch with several friends and left them at approximately 12:20 to 12:25 p. m., stating that she had a doctor's appointment at 1 p. m. At 1:09 p. m. an ambulance service received a call to go to an address, that of Pearl's. There the ambulance driver found deceased on the bed in an unconscious state. She was rushed to the emergency hospital where immediate surgery was performed to determine the cause of the internal bleeding and correct it. Martha died before a full determination of the cause of the bleeding was made.

Martha's automobile was found parked approximately 135 feet from Pearl's apartment. The keys to the automobile were found in the back of the ashtray, which was a place where they were often put by Martha. There was nothing in the automobile which could have been used to commit an abortion. Martha's purse was found in Pearl's apartment. There were no long slender objects in the purse.

The same afternoon of Martha's death, at approximately 2:30 p. m., the then wife of Kennedy, Elizabeth Kennedy (Papini) received a telephone call from Pearl. First Pearl talked with her, then with her husband. She overheard her husband say, 'In the ambulance?' and 'What happened?' And 'I told you to don't use a catheter on her.' After the telephone call Elizabeth Kennedy took Kennedy to downtown Sacramento.

Still later that afternoon, around 6 p. m., Kennedy's wife drove to the Sacramento Road Camp and picked up Pearl. Pearl requested that she transport him to the coroner's office so that he could see about a 'dead girl.' Enroute they stopped at the Southgate Shopping Center where Pearl made two telephone calls. After making these calls he told Mrs. Kennedy that he was more concerned about his girl friend Lydia becoming involved than he was about himself and that he would prefer 'to take the rap' for her. Pearl also told Mrs Kennedy that he was trying to call his brother to find out if his brother had gotten the catheter and wrist watch out of his apartment.

Mrs. Kennedy was directed to drive Pearl to the vicinity of his apartment, driving by instruction down the alley rather than in front of the apartment building. Pearl went into the apartment and soon returned. He told Mrs. Kennedy that his brother had taken everything out and that the 'apartment was okay.' Bill Pearl had in fact been to Harold Pearl's apartment during that afternoon. Bill Pearl had borrowed the apartment key from the apartment manager, gone to the apartment, and returned the key some minutes later. From the apartment Pearl and Mrs. Kennedy drove to the city parking lot where Kennedy was working. Kennedy was nervous. Kennedy and Pearl had a conversation which was overheard by Mrs. Kennedy. At one point Kennedy told Pearl, 'Stick to your story. You are a Sheriff, no one is going to take some nut in the hospital's word against yours.' Kennedy also advised Pearl to 'dummy up, just stick to your story, they don't have no proof.'

While Kennedy and Mrs. Kennedy remained at the parking lot, Pearl left in a taxi, and he was gone for 45 minutes. On his return Pearl told Kennedy that the coroner and the sheriff were not satisfied with the story. To this Kennedy replied, 'Just stick to your story, no one is going to dispute it because they don't have no evidence.'

Late that same night, at about 1:15 a. m. Wednesday morning, Mrs. Kennedy answered a telephone call from Pearl. She heard Kennedy tell Pearl, 'Stick to your story and no one can bother you. You are a Sheriff. They are going to take your word against some nut.'

In the meantime, McEwen had become quite concerned because Martha had not returned to see him. He telephoned Kennedy shortly after 6 p. m. and asked Martha's whereabouts. Kennedy requested that McEwen telephone him back at another number. On this telephone McEwen again asked for Martha. Kennedy immediately launched into a 'dissertation' to the effect that it was all McEwen's fault; that McEwen had pressured them into it; that Martha was in the hospital; and that they had done all they could. Kennedy asked if anyone had been up to see McEwen. McEwen said, 'No.' Kennedy then told McEwen that it was all his fault; he advised McEwen to 'dumb up.'

Neither Pearl nor Kennedy took the stand to testify. Other evidence will be referred to in the course of this opinion.

The first contention of Kennedy is 'THAT THE VERDICT IS CONTRARY TO THE EVIDENCE THAT THE DEATH WAS CAUSED BY CRIMINAL AGENCY AND MORE PARTICULARLY MR. ROBERT KENNEDY.'

There is no substantial merit to this contention. Dr. Kellog, a surgeon and gynecologist who performed the emergency surgery on Martha, testified that Martha was pregnant; that they found a jagged rent a little less than an inch in length in the cul-de-sac medial to the left sacrouterine ligament and another rent in the vaginal wall, which, in his opinion, was the obvious result of an attempt to induce an abortion and also the cause of the internal bleeding which was the cause of death.

Moreover, the evidence introduced does not support the theory of defendants during trial that these rents were a result of Martha's self-attempt to abort herselp. Martha was last seen walking toward her car at approximately 12:30 to 12:35 p. m. It takes 15 1/2 minutes to drive from the parking lot to the location where Martha's car was located near Pearl's partment. Dr. Kellog testified that the injuries were inflicted sometime after 12:30 p. m. The call was received by the ambulance company at 1:09 p. m. No object was found either in Martha's purse or car that could be used to inflict such injuries.

We believe that from the above evidence the jury could reasonably infer that the death of Martha was caused by criminal means employed by a person other than herself. The corpus delicti of death by the...