People v. Todd

Decision Date22 October 1957
Docket NumberCr. 3342
Citation154 Cal.App.2d 601,317 P.2d 40
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE of the State of California, Plaintiff and Respondent, v. Betty TODD, Defendant and Appellant.

Smith & Parrish, Oakland, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Marvin J. Christiansen, Deputy Atty. Gen., for respondent.

KAUFMAN, Presiding Justice.

The defendant Betty Todd was charged with the murder of her husband, Solomon Todd. The jury returned a verdict of guilty of murder in the first degree, which was changed to murder in the second degree by the trial court pursuant to its authority under Penal Code, section 1181. On this appeal taken from the judgment and the order denying defendant's motion for a new trial, it is contended that the evidence is insufficient to support the judgment, that the trial court erred in not permitting the defense to show before the jury that counsel advised the defendant not to testify and in allowing alleged prejudicial misconduct by the district attorney.

The record contains testimony which may be summarized as follows: Oakland police officer Lathrop testified that on Sunday, August 13, 1956, at 7:03 a.m. he received an emergency call, and proceeded to 3259 Peralta Street, the home of the defendant and her husband. Arriving at 7:10 a.m., he was directed into the house by Mrs. Williams, the defendant's sister. He further testified: 'Well, I walked to the door and I saw Mr. Todd lying on the Chesterfield and Mrs. Tood walking toward the front room--through another sitting room towards the front room where I was. And I walked up to Mr. Todd and checked his pulse and respiration and he was not breathing and had no pulse at that time.

'And Mrs. Todd was in the living room by that time and I asked her what had happened and she held out a beer can opener and she said, 'I stabbed him hard with this.' I took the beer can opener that she offered to me from her and put it in my pocket.' The deceased was wearing a blood stained T-shirt with a small hole in it; a dark coat and pink shirt were lying on the bed in the front bedroom. The bed appeared to have been slept in. Officer Lathrop found no holes or stains in the pink shirt or coat. He further testified that the defendant then told him that her husband had come in drunk about 6:00 a.m., and after she asked her husband where he had been and he refused to answer a fight had started between them; that, during the struggle, her husband had hit her on the head and had 'gigged at her with something.' The defendant did not have a bruise on her head nor did her clothing appear to have been in a fight. The furniture in the apartment did not appear to have been disturbed. The officer thoroughly searched the premises and found no other weapon. There was no blood on the beer can opener.

The testimony of the doctor who performed the autopsy disclosed that Solomon Todd died of a cardiac tamponade due to a stab wound which entered a branch of the coronary artery. The wound was about 4 1/2 inches deep and could not have been made by a beer can opener but only by a long sharp instrument such as an ice pick or butcher knife or scissors. In a subsequent experiment on a body the doctor was unable to produce a similar wound with a beer can opener. The wound could have been inflicted anywhere from three minutes to five hours before the death and was of such a nature that it would not have caused pain and would have enabled the deceased to appear normal and walk around for a considerable period of time without knowing he had been hurt. The blood of the deceased had an alcohol measurement of .196, a sufficiently high percentage to indicate that the deceased was under the influence of alcohol. The autopsy also revealed three recently incurred superficial lacerations which could have been caused by a beer can opener or fingernail. A microscopic diagnosis of the wound tract revealed the presence of polymorphonuclear leukocytes which are generated only if a person lives after the infliction of a wound and normally do not appear until three hours after a wound has been inflicted.

The activities of the deceased during the hours before his death were as follows: after 4:00 p.m. on the afternoon of Saturday, August 12, wearing a dark suit and pink shirt, Todd went to the home of Frank Wright, a friend and co-worker at the cannery, who lived nearby. Around 5:00 p.m. the two men left Wright's residence in Wright's car and proceeded to Allen's Cafe, which was a short distance from the Todd home. There they drank beer, ate hamburgers and played records until midnight. Around midnight, Todd left his friend, stating he was going next door to the Victory Club and would return shortly. Wright, who had been on similar jaunts with Todd in the past and knew Todd to be a heavy drinker, waited at Allen's Cafe until after 2:00 a.m. Then, fearing that Todd might have been 'rolled' as on a prior occasion, Wright searched for Todd at his home, at the Victory Club and other haunts, giving up the fruitless search at 5:00 a.m. Wright testified that during the course of the evening Todd had not been in any fights.

Shortly after 1:00 a.m., Todd (who never left Allen's Cafe), apparently unseen by Wright, joined the table of another co-worker at the cannery, Lonnie Durham who had not previously been friendly with Todd. On the Saturday evening in question, Durham was at Allen's Cafe with his wife, Margie, and his sister-in-law, Mrs. Raymond. Durham introduced Todd to his companions. Sometime before 2:00 a.m. the foursome left Allen's Cafe in the Durhams' car to obtain some whiskey. After obtaining a half pint of whiskey which was consumed by all four of them, they drove to several other cafes, all of which were closed. At 24th and Market Streets, they finally found a place which was open, obtained another half pint of whiskey, which was consumed chiefly by the two men, and some coffee. As they were leaving, they noticed that the car had a flat tire. While they were having the tire fixed at a filling station on Market and San Pablo, Todd went to the rest room for five to ten minutes. The foursome then proceeded to a barbecue place on 7th and Market Streets, and ate. As it was after 4:00 a.m. by then, Todd asked to be taken home, saying he had to work two shifts the following day. He was taken home in the Durham car, with Mr. and Mrs. Durham sitting in the front seat, Mrs. Durham driving, and Todd and Mrs. Raymond sitting in the back seat. As the car pulled up in front of Todd's home, they noticed a car parked in front of the house and Todd said, 'There is my car there.' '* * * that's my wife. Keep driving.' The car proceeded to follow them and Mrs. Durham kept on driving for some distance until the car ceased to trial them. They then dropped Todd at 30th and Peralta about a block from his home around 5:00 a.m. Todd began to walk in a direction away from his home. After dropping Todd, Mr. Durham took the wheel and drove by the Todd home. The car which had previously been trailing them began to follow them again, subsequently pulled up alongside, and a lady in an angryish tone said, 'Where's Todd?' When Mr. Durham replied, 'What Todd?' she said, 'You wasn't the one driving,' and drove off. The Durhams and Mrs. Raymond then drove home and never saw Todd alive again. Both of the Durhams as well as Mrs. Raymond testified to all of the above facts as well as to the fact that Todd did not appear drunk, was in a good humor and had not been in any fights in the course of the evening.

Todd was next seen walking toward his home between 6:00 and 6:15 a.m. by Mrs. Eliza Walker who lived in the apartment below the Todds and usually left for work at that time. Mrs. Walker testified that Todd was walking as if he had 'a couple of drinks,' was 'happy as a field ox' and spoke to her in a friendly fashion and did not complain about having been stabbed. He was still wearing his pink shirt and dark coat.

Defendant's first contention on appeal is that there is not substantial evidence to support the judgment of murder in the second degree. Penal Code, section 1105, provides as follows: 'Upon a trial for murder, the commission of the homicide by the defendant being proved, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable.'

The first question, therefore, is whether in the instant case the proof indicates a homicide by the defendant. There is no question as to the existence of a homicide here as the deceased died as a result of a stab wound. The evidence which tends to show that the defendant killed her husband is entirely circumstantial. Therefore, the facts or circumstances must not only be entirely consistent with the theory of guilt but must be inconsistent with any other rational conclusion. People v. Bender, 27 Cal.2d 164, 163 P.2d 8. The defendant contends here that the testimony of the expert who performed the autopsy is consistent with her theory that the wound could not have been inflicted by the beer can opener, and was inflicted several hours before the deceased arrived home, probably during the time the deceased was with the Durhams or during the hour which elapsed after he had been last seen by the Durhams and was first seen by Mrs. Walker. The lack of any stains or tears in the pink shirt and coat does not support the defendant's theory. Furthermore, the jury could disbelieve the testimony of the expert witness. The defendant did not offer any evidence to rebut that offered by the prosecution. It is not for this court to determine conflicts in the evidence or to choose between different inferences which may be reasonably drawn from the evidence. If there is substantial evidence in...

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  • People v. Theriot
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    ...Bender, supra, 27 Cal.2d 164, 178, 163 P.2d 8; People v. Warrick (1967), 249 A.C.A. 1, 5--6, 57 Cal.Rptr. 121; People v. Todd (1957), 154 Cal.App.2d 601, 609--610, 317 P.2d 40.) On the question of premeditation, the trial court could properly consider the early marital infidelity, the relat......
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