171 Cal. App. 2d 834 | Cal. Ct. App. | 1959
In a jury trial defendant Betty A. Bell was found guilty of murder of the second degree. Her motion for new trial was denied and she appeals from the judgment and from the order denying her motion for new trial.
The defendant and her husband, the deceased, had resided at 2220 Vista Del Mar Avenue since 1954. On the evening of May 17, 1958, Mr. Bell was shot by a revolver held by defendant. He died from the wound two days later. Sergeant Theodore Rushton, responding to a radio call, arrived at the premises at 9 :55 p.m., knocked on the door and receiving no response went to the north side of the house where he heard voices in the bedroom, asked to be permitted to enter and shortly thereafter was admitted by defendant. When questioned as to what had happened, defendant said: “He is in there. He will tell you.” The officer went to the bedroom where he found Mr. Bell, clad in shorts, lying on a bed in a pool of blood; there appeared to be no disarrangement of the furniture and the premises seemed to be in order. A few minutes later Officer Berger arrived and both officers went into the bedroom where they found a black leather holster lying on the bed. In the front room they found a bullet lying on the floor under the coffee table, two or three blood spots on the rug nearby and a double action revolver. There were blood spots leading through the dining room and down the hall toward the bedroom. The revolver contained three live and two empty shells. Questioned by the officers whether she had shot her husband defendant gave vague and erratic answers, but she finally replied that she had not shot him and that “This is none of your business. Why don’t you leave? This is boring me. ...” Officer Berger formed the opinion that defendant was only partially intoxicated. Defendant was then taken to the police station where she was interrogated
Officers Berger and Turner returned to the premises to search for a second bullet. An intensive examination failed to disclose any evidence that a second shot had been fired in the living room. The officers found a bullet hole in the north wall of the bedroom about 2jS4 feet above the floor; a bullet was found outside the wall about 6 feet therefrom; at the bullet hole in the wall was freshly exposed plaster. The course of the bullet through the wall projected inward indicated that it had passed at a height of 7 or 8 inches above the bed. Testimony at the trial revealed that this bullet and the one recovered in the front room were fired from the revolver found on the premises. The shot which caused death entered the left side of the abdomen, ranged downward and shattered the right hip bone. Powder burns showed that the gun was held about 8 inches away from the victim. There were no identifiable fingerprints found on the revolver.
Defendant testified that she and her husband had been drinking steadily for several days with little or no food; she had fallen asleep on the bed, upon awakening was in a gay and frivolous mood, was unable to find a bottle of gin from which they had been drinking and decided to confront her husband with the gun and inquire where he had hidden it; she did not know where she got the gun but had it in her hand with her finger on the trigger, walked into the living room where Mr. Bell was lying on the couch, sat down on the couch and when he saw the gun in her hand, he allowed her no explanation but jumped to his feet, grabbed her hand, forcing it to the left; the gun fired; she remembered only one
Two women neighbors testified that they heard two shots spaced from two to three minutes apart. A diagram of the plan of the house showed a solid wall between the living room and the bedroom.
The foregoing is an abbreviated statement of the evidence. Our discussion will be confined to certain irrefutable facts which clearly lead to the conclusion that Mrs. Bell was guilty of murder of the second degree.
The contentions that there was insufficient evidence to prove the commission of any offense and that at most the killing was manslaughter will be considered together.
It is argued first that the People made use of the admission of appellant of her action which resulted in the shooting and were, therefore, bound by her explanation that it was accidental. Upon this point appellant cites People v. Salaz, 66 Cal.App. 173 [225 P. 777] and People v. Toledo, 85 Cal.App.2d 577 [193 P.2d 953]. Neither case furnishes support for appellant’s contention. If the evidence of the People convinced the jury that the shooting occurred in a manner other than that described by appellant, her testimony could properly have been rejected as false and the contradictory evidence accepted as controlling. The opinion in Salaz so holds.
There was ample evidence to prove that the shooting was not accidental. The credibility of appellant was impeached by her statements to the officers in which she denied all participation in the shooting and pretended to believe that her husband had shot himself. But in addition to that, it was proved beyond doubt that the gun was not fired twice in a
It may be that one shot was fired during a struggle, but there would have been no occasion for a struggle if appellant had merely intended to exhibit the gun in a spirit of fun. She did not need to point the gun at the deceased while her finger was upon the trigger. She could have let go of it and permitted it to be taken from her. If she had not resisted the efforts of the deceased he could easily have pushed the gun aside. Prom these facts alone the jury could have reached the conclusion that appellant intentionally pulled the trigger and that even that shot was not fired accidentally. But what of the shot in the bedroom? Appellant testified that she had no knowledge of the hole in the bedroom wall. But it was fired from the same gun and at the same time as the other one. It could only have been fired by appellant. Did she
The second point is that the court of its own motion should have given an instruction on the principle that if the evidence is susceptible of two reasonable interpretations, one pointing to the innocence of the defendant and the other pointing to guilt, the former interpretation is to be adopted. It would have been a proper instruction to give if the principle had not been sufficiently stated in other instructions. It is not made to appear by appellant’s briefs that the principle was not adequately covered by instructions that were given, as required by rule 33(b), Rules on Appeal. But, however that may be, we think the instruction would have been of no avail to appellant. The fact that she gave false testimony as to the circumstances of the shooting was demonstrated by the other evidence. There was no reasonable interpretation of the evidence under which the jury could have found that the shooting of Mr. Bell was purely accidental or was only manslaughter. Prom the fact that appellant fired two shots the jury
The third point is that it was error to instruct in the law of murder. The point is obviously without merit.
The judgment and order are affirmed.
Wood (Parker), J., and Vallée, J., concurred.