People v. Penny

• Decision Date: 08 July 1955
• Docket Number: Cr. 5722
• Court: California Supreme Court
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Mary PENNY, Defendant and Appellant.

Page 926

285 P.2d 926

44 Cal.2d 861

The PEOPLE of the State of California, Plaintiff and Respondent, v. Mary PENNY, Defendant and Appellant.

Cr. 5722.

Supreme Court of California, In Bank.

July 8, 1955.

D. Brandon Bernstein, Beverly Hills, and Robert P. Dockeray, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., Norman H. Sokolow and William E. James, Deputy Attys. Gen., for respondent.

CARTER, Justice.

Appeal by defendant Mary Penny from a judgment of conviction of involuntary manslaughter.

Defendant was charged with a violation of section 192, subdivision 2, of the Penal Code. That section provides that manslaughter is the unlawful killing of a human being, without malice. '2. Involuntary in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection; provided that this subdivision shall not apply to acts committed in the driving of a vehicle.'

For seven years defendant had been engaged in 'face rejuvenation' in the city of Los Angeles. It is conceded that she had no license from either the Cosmetology Board or the Medical Board of this state; she did have a business license from the city of Los Angeles for the business of 'Face Rejuvenation.'

Defendant had a year's training with a Madame Bergeron (now deceased) in Los Angeles and approximately three months training with one Geraldine Gorman in New York. In New York, she received the formula which she used in her work. The formula consisted of one ounce of water, a heaping tablespoon of resorcinol (of the same chemical group) and sixteen drops of phenol (carbolic acid).

Kay Stanley, the victim, had consulted with defendant some seven months earlier about having her face treated to remove wrinkles and pock marks, but did not have the money to do it at that time. Around Easter time of 1953, she again asked defendant to treat her face, but defendant was to be away and could not do it then. On the morning of May 4, 1953, Kay Stanley arrived at about ten in the morning at defendant's home where she was to stay during the treatment. Kay's face was first washed with warm water and soda; the formula was then applied with a cotton wrapped wooden applicator to Kay's cheeks, a square inch at a time. After each application, the area was pressed with sterile gauze to remove excess moisture. The entire forehead was covered as well as the eyelids, the process taking about two hours. The treated area was then covered with gauze and taped with small pieces of tape which overlapped and covered the area; regular waterproof adhesive tape was then put on over the other tape; this formed a mask over the upper portion of the patient's face. After the taping had been completed, Kay walked to an adjoining room where she had lunch, listened to the radio and looked at magazines. At approximately six in the evening, defendant proceeded to treat the lower half of Kay's face in the same manner as she had treated the upper portion which took about three quarters of an hour. When the treatment was completed, Kay asked defendant if she could sit up for awhile before the taping was started; she sounded sleepy. The defendant told her she could and said she would get her a glass of water. When defendant returned with the water, Kay said, 'I feel a little bit faint' and lay back as though in a faint. Defendant asked her how she felt but received no answer. When defendant tried to lift her she found she was dead weight and felt that she had fainted. Defendant tried unsuccessfully to call a Dr. Wallace and left a message for him; she then called a nurseanaesthetist who arrived at the house about ten or fifteen minutes later. Mrs. Jevne, the nurse, tried to take the patient's pulse without success; there was no respiration. She then administered Coramine, a heart stimulant by hypodermic needle, in the arm; she then gave a hypodermic injection of Metrazol, another stimulant; she then tried artificial respiration and caffeine benzoate. She told defendant to call the doctor again. Dr. Wallace arrived about an hour after Mrs. Jevne did and examined the lady whom he found lying on the treatment table. He was able to feel no pulse and there was no respiration. He noticed signs indicating death had existed for some period of time.

Defendant called her attorney who called the police.

The finding, after an autopsy had been had, was that the immediate cause of death was phenol (carbolic acid) poisoning and edema of the glottis due to 'application of phenol-containing mixture to the face and neck.' Other findings were that 5.1 milligrams of phenol per 100 grams were found in the liver and 2.9 milligrams of phenol per 100 grams were found in the blood of the victim. It was the opinion of Dr. Newbarr, prosecution witness and Chief Autopsy Surgeon for the Los Angeles coroner's office, that these findings were the result of the application of a solution containing more than 10% phenol to the face and neck of the victim. It was the opinion of Mr. Abernathy, the toxicologist, that the reddish-brown discoloration of the victim's face was a third degree burn caused by phenol, and that the normal finding of phenol in a normal human being would be practically zero.

There was evidence in the record which showed that the victim had been taking reducing pills prescribed by a Texas doctor; that in order to obtain replacement of the pills, it was necessary for her to have her heart examined and blood pressure taken by a local doctor; that prior to going to the defendant's home for the face rejuvenation treatment she had had her heart and pulse examined and her blood pressure taken and that all findings were normal.

The defendant testified that when she first received the formula for face rejuvenation she had it analyzed and that it contained only 3.1% phenol. The defense also took the position that the victim may have had an allergy to phenol which was the cause of death. Dr. Newbarr testified for the prosecution and gave, as his opinion, that the solution contained over 10% phenol and that the findings were not consistent with the theory of allergy. Dr. Johnstone testified for the defense and it was his opinion that the solution contained approximately 3% phenol; that when applied to the skin it would not cause death; that all autopsy findings were consistent with the theory that the victim was allergic to phenol. Without going into great detail, it seems sufficient to note that the medical testimony was in direct conflict. Defendant's argument that the evidence is insufficient to support the judgment insofar as the cause of death is concerned is without merit. The testimony is ample to show that the victim died of phenol poisoning.

Defendant's argument that Dr. Newbarr was 'allowed' to give an 'unsupported and incompetent opinion' that the solution contained more than 10% phenol is also without merit. Dr. Newbarr was found to be qualified by the trial court; his opinion was based on his reading on the subject, his own observation of the victim, and his own previous experiences. The qualifications of an expert witness are for the trial court, People v. Pacific Gas & Electric Co., 27 Cal.App.2d 725, 81 P.2d 584, and any question as to the degree of his knowledge goes to the weight of his testimony rather than as to its admissibility. Howland v. Oakland Consol. St. Ry. Co., 110 Cal. 513, 42 P. 983; Pfingsten v. Westenhaver, 39 Cal.2d 12, 244 P.2d 395; In re Estate of Johnson, 100 Cal.App.2d 73, 223 P.2d 105. Defendant's argument that the testimony of her witness, Dr. Johnstone, was uncontradicted is also without merit. Dr. Johnstone's testimony merely created a conflict in the evidence and it was the function of the trier of fact to resolve that conflict.

Instructions:

Defendant contends that the following instruction was without basis in the evidence. 'Any licensed cosmetologist who applies to any human being a solution of phenol greater than ten per cent is guilty of a misdeameanor.

'This is an unlawful act not amounting to a felony. Business & Professions Code, Section 7415.' (Emphasis added.)

As heretofore pointed out, it is admitted that defendant was not licensed as a cosmetologist.

It is contended that the just quoted instruction was calculated to mislead and confuse the jury when considered with the following instruction: 'Every person who engages in, or attempts to engage in, the practice of cosmetology or any branch thereof without a license therefore issued by the State Board of Cosmetology or in an establishment other than one licensed by the State Board of Cosmetology is guilty of a misdemeanor.

'The art of cosmetology includes the beautifying of the face, neck, arms, bust or upper part of the human body, by the use of cosmetic preparations, antiseptics, tonics, lotions or creams.

'A violation of this law is an unlawful act not amounting to a felony. Business & Professions Code, Section 7325; Business & Professions Code, Section 7321(b) (sic) (c).'

It is argued that under these two instructions defendant could have been convicted (1) if the jury believed she used a solution containing more than 10% phenol and had a license; or (2) that she was guilty because she was required to have a license and had none.

There can be no doubt but that the instruction concerning a 'licensed' cosmetologist was erroneous and that it had no foundation in the evidence. On the issue of defendant's guilt, the jury could well have inferred that she was guilty of the crime by reasoning that even a licensed cosmetologist could not use a solution containing more than 10% phenol. So far as the second instruction is concerned, it is supported by the evidence and correctly stated the law as it relates to those practicing cosmetology and the persons considered engaged in that practice. It appears to us that as a matter of law, defendant was engaged in the practice of...