People v. Williams

Defendant was convicted of the murder of Margarete Heitmiller, murder in the first degree with life imprisonment fixed as the penalty. He appeals from the judgment and an order denying his motion for new trial.

Counsel make no claim of insufficiency of the evidence but advance numerous assignments of error claimed to be prejudicial. One of them centers upon the exclusion of

The condition of decedent’s body was such that Dr. Kade, deputy medical examiner and autopsy surgeon in the coroner’s office, expressed the opinion that the cause of death was a fractured skull with lacerated brain, fractured fourth cervical vertebra (broken neck) and other injuries; that the body showed a %-ineh laceration of the scalp to the left of the vertex, and a %-inch by y^-rnah T-shaped laceration of the right occipital area of the scalp; a reddish purple discoloration and swelling about the left eye, which would commonly be called a black eye; scattered abrasions of the left side of the forehead and of the right cheek, right upper lip and undersurface of the right side of the chin; a large area of ecehymosis and discoloration of the left side of the neck; zones of ecehymosis on both upper arms; a scratch mark over the right clavicle, the collar bone; zones of abrasion about both elbows and the left forearm; a bluish discolored area on the back of the left hand; zones of abrasion on both lateral aspects of the torso; marked ecehymosis and swelling of the right labia, extending as far as the margin of the vagina;

In the doctor’s opinion, a fractured skull may result from a standing fall, but it would be extremely unlikely for a broken neck to result from a simple fall, and he had never seen any case of strangulation caused by a fall, nor could the injury to deceased’s private parts have been caused by a fall — it could only have occurred as the result of a kick; nor could the lacerated brain have been caused by a single shake. Taking all the injuries together, Dr. Kade was of the opinion that they were caused by deceased being held around the neck while lying face upward on the floor, and having her head pounded against the floor, thus fracturing the skull, breaking the neck, and causing the marks of strangulation at the same time.

All of the other injuries found by Dr. Kade, in his opinion, must have occurred immediately, or shortly, preceding death. He concluded that the skull fracture, with resultant hemorrhage about the brain, would have been fatal in itself, as would have been the broken neck, with the resultant injury to the spinal cord. He could form no opinion as to the possibility of the strangulation having been fatal in itself.

Dr. Kade believed that the deceased, after having received the fractured skull with the brain lacerations, would have been rendered unconscious almost immediately and would not have been able to walk any distance. It was his opinion, also, that if a person had the broken neck suffered by deceased she would not have been capable of walking any distance— would have been at least paralyzed, if not dead. It was his opinion that a person would have died within 10 or 15 minutes after having received any one of the fatal injuries.

Persuasive circumstantial evidence was presented, including statements and conduct of defendant after the event, which pointed definitely to him as the perpetrator of a brutal and murderous assault or series of assaults upon decedent.

Defendant’s own version of the occurrences preceding the death of the victim, was substantially the following: He

At about 11 o’clock on the night of April 4, 1959, appellant and Margarete went to the Avalon Inn on Avalon Boulevard. She went directly to one of the booths and joined some men while appellant went to the bar. Soon she came to the bar and took a bottle of beer from another customer. The bartender asked her not to annoy the customers and to stay with her own party and that the waitress would get beer for her. The waitress refused to serve her because she “had been drinking.” While appellant was still at the bar one of the men seated next to decedent arose and made a rude statement. She swore at him and they swore and argued back and forth. She ran over to the bar, snatched a beer from a customer and threw the bottle at the man. He stepped back as though he were going to pull something out of his pocket and the bartender told decedent and appellant to take the discussion outside because the bar was full. While she was in the booth with the said men, ‘ ‘ [t] hey were drinking whisky under the table. A fellow on the outside, he must have had about a pint, and they were pouring whisky from under the table, you know, unbeknownst to the bartender — you know, serving it in water glasses, and they was feeding it to

“And the next is the patient clinical history, dated 8/29, apparently of ’53, stating that she had blacked out, and stating that the story was highly unreliable and she was apparently lying.”

‘ ‘ Intern notes she had been admitted to the emergency room of Huntington Hospital for convulsions. That she was treated there. And past history reveals the patient had been admitted to Unit No. 3 because of alcoholic intoxication and convulsions. Her psychiatrist confirmed the fact that alcohol ingestion is often followed by convulsion.”

“The next one is in-patient record cover. There’s no date on it. And they refer to service in jail. It’s March 31st. Afterwards has C.A. It says ‘H.B.D.,’ probably means ‘Had been drinking.’ ‘See doctor’s notes. And multiple lacerations, contusions and abrasions, the face, arm and body. ’ ” “The history says ‘She and her husband haven’t been getting along well. Went out to look for husband. Said she was taken, on the way home, she was taken by some people she didn’t know into an apartment and she tried to escape by jumping through a window. She admits to drinking prior to the injury and she was incoherent, making no sense. Doesn’t understand why she’s in the hospital or in the jail. And the contusions and hematoma, left forehead, lacerated left cheek, lower left, contusion, possible fractured nose. ’ ” Manifestly, most of the foregoing matter is hearsay,— statements of decedent or police or others. Of course, these hospital records also contain diagnoses of the patient’s then condition, — e.g., “tentative diagnosis of convulsive seizures”

• — but the plain objective of counsel, as appears from their brief herein, was proof of the fact of occurrences resembling those which defendant claimed to have occurred on April 4 and 5, 1959, just before the victim’s death. The diagnoses found in the record would have no tendency to support appellant’s story; it was the proof of bizarre behavior such as butting the head on a cement floor, running in front of moving vehicles, butting into objects such as trees and automobiles, —the fact of such conduct that counsel was seeking to prove by hearsay. Counsel said: “If these documents were admitted, your Honor, they would tend — they would prove the whole personality and background of this deceased, which is primarily psychotic, with suicidal episodes, with a number

It should be remembered that a history given by a patient to his physician is admissible only as a basis for the expert opinion of the latter and never as substantive proof of the facts so stated to him by the patient. (Willoughby v. Zylstra, 5 Cal.App.2d 297 , 300 [ 42 P.2d 685 ]; People v. Brown, 49 Cal.2d 577 , 585 [ 320 P.2d 5 ] ; Witkin on California Evidence, § 264, p. 301.) The same rule necessarily is applicable to such statements found in a hospital record when offered as affirmative proof of their truth.

People v. Bray, 42 Cal.App. 465 , 470 [ 183 P. 712 ], though

A discussion of hospital records as evidence in 14 Southern California Law Review, at page 106, contains this: “A further question arises out of the scope of the data recorded in the hospital. It may cover matters lying outside the personal knowledge of the doctor or any of the attendants but reported to an attendant by the patient or by someone on his behalf. This information includes date of birth, occupation, nationality, religion, the patient’s statements of reasons, signs and symptoms for seeking medical aid, the patient’s story of the onset, together with subjective signs and symptoms of diseases or injuries up to the day of admission, including a statement of treatment given, a summary of the patient’s life in relation to pathology, illness, with or without complications, operations and injuries, habits, social conditions, environment, and any data which may be related to the present illness, family history relative to evidence of hereditary or infectious diseases and familial tendencies to disease. Within the traditional hearsay framework little basis can be found for the inclusion of data which lies outside the personal knowledge of the doctor and others who are employed by, and acting on behalf of, the hospital. Most of the assertions of the patient would, as such, fail to meet the requirements of admissible hearsay. Some of the statements might, however, fall within such hearsay exceptions as admissions, or pedigree.” (See also Behr v. County of Santa Cruz, 172 Cal.App.2d 697 , 704 [ 342 P.2d 987 ] ; People v. Gorgol, 122 Cal.App.2d 281 , 300-301 [ 265 P.2d 69 ] ; anno, in 44 A.L.R.2d 553 , at 559 and 563.)

We have concluded that the court did not err in excluding the evidence just discussed.

There is no merit in the contention that error was committed through receipt into evidence of photographs of

Appellant’s contention that “the court erred in permitting questions and answers to rehabilitate the witness James Rowell’’ is somewhat obscure in its development. Examination of the pertinent portions of the record fails to reveal any error in this regard.

Counsel complains of the propounding of a leading and suggestive question by the Deputy District Attorney directed to his own witness. There is no substance to this contention.

A certain note written upon an envelope and addressed to defendant was received in evidence and may have reflected a motive for the murder. It is now argued that there was no proof that decedent wrote it, but the record shows that her father testified that same was in her handwriting. There is no merit in this claim of error.

Appellant’s counsel says: 11 That throughout the trial, the District Attorney constantly referred to statements or arguments of the defense counsel as being calculated to deceive and confuse the jury.’’ That is the whole of the argument upon the claim of prejudicial misconduct of the prosecutor. It is accompanied, however, by a citation of certain transcript references examination of which discloses only such asperity as often develops between counsel engaged in a long trial. No objection or motion was made in the cited instances and thus any objection was waived. (Fricke on California Criminal Procedure, 5th ed., p. 463.)

A blood test made upon decedent and showing absence of alcohol in her system was received over objection of defense counsel. The making of such tests and their receipt in evidence is a recognized procedure (19 Cal.Jur.2d, § 347, pp. 78-79), and appellant’s objection is confined to lack of foundation. It appears, however, that the report of the blood

At the trial defense counsel moved that he be given an opportunity to examine the reports made by police officers concerning this case, also any written reports the district attorney might have in his file as to alleged statements made by defendant to the police. After some discussion and clarification of the scope of the request the court ruled as disclosed by the following colloquy: “Me. Simmons : Let’s say my first request, your Honor, is any statement that the defendant purportedly made to the police officers or any notes or memorandums that the police officers took in respect to alleged statements of the defendant. . . . The Coubt: First, as to statements made by the defendant to the Police Department, you are entitled to-Me. Pachtman : Yes. The Court : Now, what is your second one ? Mb. Simmons : Any notes or memorandum made by the police officers on any alleged statements made by the defendant. . . . Mb. Pachtman : . . . I will concede that I have some such statements and that I will be more than happy to let counsel have those, or view those statements, because I don’t have-The Court : In other words, if they didn’t take down word for word what he said and they made a statement of their understanding of what he said, that’s what you want? Mb. Simmons: That’s right. The Court: Well, you are entitled to that.” Police Officer Campbell testified to a conversation with defendant on the afternoon of April 5, 1959, in which he said decedent was lying on the street at 55th and Central at about 9 a.m. of April 5th, that he picked her up, took her to a friend’s house, tried to revive her and failing in that brought her to the hospital. On cross-examination it developed that the officer had made notes of the conversation which were not in court with him. Thereupon defense counsel moved to strike the testimony of the officer. “Mb. Simmons : Strike the whole testimony, because we had made a motion and I had understood that we had been given all copies of all alleged statements of the defendant. Now we find there’s another statement here. I think that-. ’’ The following colloquy then ensued: “Mb. Pachtman : Well, Counsel enumerated the statements that he wanted ; but I didn’t even know about this statement. The Coubt : Well, have you got it in your file? Mb. Pachtman: I didn’t have this statement in my file. The Court : That’s what he demanded, the copies of the file. Mr. Simmons : I wanted copies of all statements made by the defendant, your Honor. I think that was the motion. The Court : Where did you make

We find no prejudicial error.

The judgment and order are affirmed.

Pox, P. J., and Herndon, J., concurred.