People v. Hopper

This is an appeal from a judgment entered upon a jury’s verdict which found the appellant guilty of first degree murder with a recommendation of life imprisonment. Defendant also appeals from an order denying his motion for a new trial.

Appellant and the victim of the homicide had been living together as husband and wife for approximately 10 years. She was the mother of his four children.

Appellant contends that the evidence is insufficient to support a verdict of first degree murder. With this contention we agree, and this conclusion requires a somewhat detailed statement of the evidence. On July 5, 1955, at about 11:45 a. m., the sheriff’s office of Stanislaus County received a call to investigate a death at the home of the appellant. A deputy sheriff proceeded to the home where he observed the body

vengeance on, or extort something from his victim, and in the course, or as the result of inflicting pain and suffering, the victim dies. That intent may be manifested by the nature of the acts and circumstances surrounding the homicide.’ . . . The Colorado Supreme Court has declared in similar terms that as an essential of torture physical pain must be inflicted as a means of persuasion, punishment or in revenge. (Townsend v. People, 107 Colo. 258 , 265 [ 111 P.2d 236 ].) In holding that a murder by strangulation was not necessarily murder by torture this court has stated: ‘ The killer who, heedless of the suffering of his victim, in hot anger and with the specific intent of killing, inflicts the severe pain which may be presumed to attend strangulation, has not in contemplation of law the same intent as one who strangles with the intention that the victim shall suffer. (People v. Bender, 27 Cal.2d 164 , 177 [ 163 P.2d 8 ].)

“In determining whether the murder was perpetrated by means of torture the solution must rest upon whether the assailant’s intent was to cause cruel suffering on the part of the object of the attack, either for the purpose of revenge, extortion, persuasion, or to satisfy some other untoward propensity. The test cannot be whether the victim merely suffered severe pain since presumably in most murders severe pain precedes death.”

In People v. Tubby, the defendant was seen to strike an aged man who was in the front yard of his residence. This act was observed by neighbors who shouted at him to cease. The defendant thereupon seized his victim by the hair of the head and dragged him into his residence and there proceeded to pummel, strike, and drag the victim about until, when the officers arrived, they found the victim seated in a chair in which he had at last been placed by the defendant, suffering from injuries from which he later died. As stated in the dissenting opinion in amplification of the statement of facts in the opinion by the majority, at page 81:

“The evidence clearly indicates that defendant chased his victim about the house inflicting terrific punishment upon him. There was blood on the porch, and on the walls and floor of practically every room in the house. The stove and stovepipe had been knocked out of place and some of the furniture had been broken during the affray. When the officers arrived, they found deceased had been beaten ‘practically beyond recognition.’ Physical examination showed that deceased’s nose ‘was crushed almost flat’; that his eyes were

swollen shut; that there was a fracture of the lower jaw and a complete fracture of the upper jaw; that there were several fractures of the skull; that the brain had been ‘split completely open’ and ‘was literally pulverized over the back portion of the two frontal sinuses. ’ Other injuries were described by the doctors, including abdominal injuries, but the foregoing recital sufficiently shows the nature and severity of the resulting damage.”

The majority declared that the record was devoid of any explanation of why the defendant might have desired his stepfather to suffer. It was noted that the only testimony concerning the relationship between the two men was that the deceased and the defendant were on amicable terms prior to the attack, and concluded:

“. . . The record dispels any hypothesis that the primary purpose of the attack was to cause the deceased to suffer. When death results under the circumstances here shown the homicide cannot be said to constitute murder by torture in the popular, dictionary, or legal sense. The evidence is therefore insufficient as a matter of law to support the verdict on the theory that the homicide was murder by torture.”

In the ease on appeal the evidence was without conflict that the relations between the appellant and the decedent, during the time when McDonald was in their company, were amicable even to the point of being affectionate. It is true there was testimony of physical assault several days prior thereto. There were also incidents testified to at widely separated intervals, going back as we have noted for several years, wherein physical assaults of varying severity were committed against decedent by appellant. But these things furnish no light as to what occurred when, after leaving McDonald at his home, the pair drove toward their own residence. We do not know whether there was provocation, whether there was a prolonged assault, whether or not the attack made was sudden, violent and furious, with, as we must assume, the intent to kill. We do not know, and we cannot infer, that over and above the intent to kill was the intent to torture. The record on this issue leaves us wholly to speculation and is insufficient to sustain the first degree verdict upon the theory that the killing was perpetrated by means of torture, “in the popular, dictionary, or legal sense.”

What we have heretofore said has a direct bearing, also, on the issue of premeditation. The following appears in People v. Bender, 27 Cal.2d 164 , 179 [ 163 P.2d 8 ], quoting from

“. . . ‘When the killing is proved to have been committed by the defendant, and nothing further is shown, the presumption of law is that it was malicious and an act of murder; but in such a case the verdict should be murder of the second degree, and not murder of the first degree. ’ ”

In the Bender ease, as in this case, there was substantially no evidence casting light on either motive or intent at the time of the killing; and there, as in this case, there was evidence of marital discord, although the picture in the Bender case of the marital association was darker and portrayed a much more consistent lack of harmony than is shown by the evidence in this case. There, also, the jury was required to reject the testimony of the defendant that denied the killing. Said the Supreme Court on page 179:

“On the other hand, if the testimony, letters, and declarations of defendant are considered as a whole they show that the marriage of defendant and deceased began inauspiciously when defendant failed to tell deceased that his previous marriage had not been dissolved, and that some eight months later the violent disagreements which characterized the marriage culminated, after several hours of drunken quarreling, in murder. The picture of the events which led up to the murder and the events which followed it is a consistent one, interrupted only by the defendant’s denial that he killed his wife. This picture suggests reasons for and the facts of quarreling between decedent and defendant but leaves only to conjecture and surmise the conclusion that defendant either arrived at or carried out the intention to kill as the result of a concurrence of deliberation and premeditation. Overwhelmingly opposed to such conjecture or surmise, and consistently evidenced by every circumstance is the rationale of a tempestuous quarrel, hot anger, and a violent killing. ’ ’

In People v. Thomas, 25 Cal.2d 880 , 898 [ 156 P.2d 7 ], it was declared that an instruction that “If . . . specific intent exists at the time of such unlawful killing, the offense committed would of course be murder of the first degree” was erroneous, and that to hold otherwise would be to emasculate the statutory difference between first and second degree murder; that “The word ‘specific (adjective) means ‘Precisely formulated or restricted; . . . definite, . . . explicit; of an exact or particular nature’ (Webster’s New Int. Diet. (2d ed.)) while ‘deliberate’ (as an adjective) means ‘formed,

The coroner of Stanislaus County was called as a witness and was permitted to give an opinion that the character of the abrasions found upon the body of decedent were not such as would have appeared had her body fallen from a moving ear. Appellant’s counsel objected that he was not qualified as an expert on such a matter and here contends that the court erred in overruling that objection. The witness testified that he had been a licensed mortician for 21 years, had been a deputy coroner for 8 years; had seen at least 15 or 20 dead bodies which had been thrown from or had fallen from a moving vehicle and was familiar with the abrasion markings resulting from such a fall. On cross-examination to test his qualifications he said that he was not an expert at medicine nor an expert in the nature of bruises generally; that he could not describe pathologically the various types of bruises found for lack of expert training. Over objection to bis qualifications he then testified that he had observed on the bodies he had seen and which had fallen or been thrown from moving vehicles areas of abrasion where the body struck the road; that by abrasions he meant a scraping off of the skin. He said, ‘1 The skin is more or less scraped off, especially on the high spots, the shoulders, ribs, knees, hips and things of that nature. There may be some contusions, but they nearly always are accompanied by this abraded or scraping wound

Appellant contends that the court erred in receiving the opinion evidence of the coroner and of the autopsy surgeon as to the probability that the abrasions they found on decedent’s body had been received by a fall from appellant’s ear. His argument is that the subject was not one for expert testimony, because it falls within knowledge commonly possessed to the point that the jury should not have been subjected to opinion evidence as to the cause of the abrasions. We do not agree. It is certainly not incredible that human bodies falling from a car and striking a road surface would receive abrasions peculiar to such an accident. Both witnesses had had considerable experience in determining that abrasions so received did possess an appearance which differentiated them from abrasions received otherwise. It was proper, therefore, to give the jury the aid which could be derived from an expression of an opinion by them as to the cause of the abrasions found on the body of decedent. Both witnesses testified that, in their opinion, those abrasions were not received by reason of a fall from a moving vehicle upon a road surface. Professor Wigmore has said the criterion for receiving opinion evidence from a qualified witness is; . . Can a jury from this person receive appreciable help ? ” (7 Wigmore on Evidence, § 1923.) In Taylor v. Monroe, 43 Conn. 36 , 44, it is stated;

“The true test of the admissibility of such testimony is not whether the subject matter is common or uncommon, or whether many persons or few have some knowledge of the matter, but it is whether the witnesses offered as experts have any peculiar knowledge or experience, not common to the

world, which renders their opinions founded on such knowledge or experience any aid to the Court or jury in determining the questions at issue.”

We think both these witnesses were qualified to express an opinion, and that no error was committed in receiving their testimony as such. Both had had the experience of examining and noting the characteristics of road abrasions or road burns as exhibited on bodies known by them to have suffered abrasions from falling from moving vehicles and striking upon a road surface. Both said that they had observed such characteristics and that there was a similarity in the road burns or abrasions so received. Both had examined the abrasions on the body of deceased. Both stated that, in their opinion, the characteristics of road burns were not present on the body of deceased. It would have been difficult, if not impossible, for these witnesses to describe the appearances upon which they based their opinion in such a way as to place the jury in the same situation which they were in when they arrived at their opinion. Under such circumstances it was proper for the court to take the testimony of these witnesses in order to aid the jury in the determination of whether or not the claims of appellant that his wife had fallen from his car and struck the road and thus received the injuries which caused her death were true or false.

Appellant contends that the court erred in admitting the testimony of the witness Minnie Wilson. She was the sole rebuttal witness called by the prosecution. In cross-examination the appellant had been subjected to numerous questions concerning his affection for decedent and his relations with her. He had testified, generally, that the marital association between the two had been amicable and affectionate. He had substantially denied all of the testimony that he had abused and beaten her on the occasions testified to by witnesses for the prosecution. At the close of his cross-examination, the following occurred: He was asked if he knew a Minnie Wilson and he said that he did; that he and his wife had taken her home after a dance; that his wife and he had met Minnie Wilson at a beer joint when she was crying and said her husband and she were having a lot of trouble; that she asked the Hoppers to take her home; that they agreed to do so; that appellant had been trying to get some beer before the “beer joints closed” and that Minnie Wilson had said she had plenty of whiskey at her place and if they would take her home she would give them some; that when they got there

Section 1323 of the Penal Code provides:

“A defendant in a criminal action or proceeding cannot be compelled to be a witness against himself; but if he offers himself as a witness, he may be cross-examined by the counsel for the people as to all matters about which he was examined in chief. ...”

This does not mean that the cross-examination must be confined to a mere categorical review of the matters, dates, or times mentioned in the direct examination. It may be directed to the eliciting of any matter which may tend to overcome or qualify the effect of the testimony given by him on his direct examination. If a defendant takes the stand and makes a general denial of the crime with which he is charged, the permissible scope of cross-examination is very wide, and he cannot by testifying to a state of things contrary to and inconsistent with the evidence of the prosecution, thus indirectly denying the testimony against him, but without testifying expressly with relation to the same facts, limit the cross-examination to the precise facts to which he testified. He can be cross-examined with respect to facts or denials which are necessarily implied from the testimony in chief as well as with respect to facts which he expressly states. (People v. Zerillo, 36 Cal.2d 222 , 227 et seq. [ 223 P.2d 223 ].) We have heretofore sufficiently reviewed the testimony of the prosecution and that of the appellant when he took the stand in his own behalf to justify the generalization that not only had he denied his guilt generally, not only had he denied specifically most of the instances of violent assault upon his

The court instructed the jury that, although evidence had been offered in the case for the purpose of showing that on occasions prior to the 5th of July, 1955 (the day Mrs. Hopper met her death), defendant had beaten and struck his wife and on one occasion had beaten another woman, that such evidence had been received for a limited purpose, not to prove distinct offenses or continuing criminality, but for such bearing, if any, as it might have on the question whether the defendant was innocent or guilty of the crime charged; that the jury were not permitted to consider the evidence for any other purpose; that the value of the evidence of beating of decedent depended on whether or not it tended to show a course of conduct of the defendant toward her on prior occasions which ultimately culminated in her death and on whether or not such prior acts indicated a motive for the crime charged in the action; that the value of the evidence of the beating of decedent and of the beating of another woman depended on whether or not the prior acts viewed with the act of which the defendant was accused showed a common pattern, scheme or design. Appellant contends that the giving of this instruction constituted error. We cannot sustain appellant’s contentions with respect to this instruction. It was not unfair to him and did not misstate the law. In general, appellant’s argument in support of this point is addressed to the admissibility of the evidence, and we have already passed upon that matter. There was a pattern of behavior evidenced by the testimony of witnesses referred to in the instruction which aided the inference that appellant had killed decedent while beating her.

Appellant contends that the trial court erred in admitting testimony as to bruises that had been seen on the person of decedent at various times throughout a five-year period preceding her death. Appellant says that these highly prejudicial remarks were admitted into evidence over objection but upon a general assurance from the district attorney that he would tie such testimony in with the appellant, and that such tying in was not effected. It would serve no good purpose to relate the testimony on these matters more in detail than has been done. The testimony of witnesses concerning the various times when they had seen evidences on her face and body that she had received a beating was accom