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District Court of Appeal, Second District, Division 3, California.


Civ. 19755.

Decided: June 24, 1954

T. R. Claflin, Bakersfield, Renetzky & Davis, San Luis Obispo, for appellants. A. H. Brazil, San Luis Obispo, for respondent.

Clarence R. Long, who departed this life July 7, 1949 held three life insurance policies issued by California-Western States Life Insurance Company. One of the policies was issued May 2, 1941 and provided for payment of double indemnity if death resulted from an accident. The other policies were issued January 22, 1948, had a two year incontestable clause, and for that period did not insure against self-destruction. The company paid the primary amount of the 1941 policy but refused payment of double indemnity under that policy and any payment under the 1948 policies, contending that Mr. Long had taken his own life. This action on the policies is by the surviving wife and children. They appeal from a judgment on verdict in favor of defendant.

Upon a former trial verdict and judgment were in favor of plaintiffs; a new trial was granted, plaintiffs appealed and we affirmed the order, holding only that there was evidence which would have justified a verdict for defendant. Long v. California-Western States Life Ins. Co., 111 Cal.App.2d 254, 244 P.2d 488.

It is contended that the court erred in the following particulars: (1) In permitting the reading of the testimony of Katherine Ross and John Ross given in the former trial; (2) in admitting evidence of a threat of suicide by Mr. Long made three years before his death; (3) in refusing to admit evidence of prior accidents suffered by deceased; (4) in limiting the cross-examination of defendant's witness, Charles Long; (5) in refusing expert testimony of a ballistics expert and (6) in instructing the jury.

Mr. Long was a successful rancher in San Luis Obispo County. He was a robust man, in good health. He had two daughters by a former wife and two sons by plaintiff (now Pearl K. Schinbine), to whom he had been married eleven years. The evening before his death Mr. and Mrs. Long and the two boys had dinner at a restaurant with a Mr. Augustus and his son. It was a pleasant occasion, with some moderate drinking, and the Longs departed for home about 1 a. m. First Mrs. Long drove, but upon Mr. Long's request she surrendered the driving to him and he drove well. Mr. Long had arranged to meet Mr. Augustus the following morning at 7:30, having promised Mr. Augustus' son a ride on a harvester. When the Longs arrived home the girls, who lived with them, were in bed. Mr. Long went to bed. Mrs. Long put the boys to bed and went into the bedroom of herself and Mr. Long. Mr. Long desired to have sexual relations, which Mrs. Long refused. She took some bedding and went into the living room to sleep on a couch. The dogs barked. Mr. Long arose and went into the living room, some words were spoken, to be mentioned later. Mr. Long went outside, a shot was heard, Mrs. Long arose and went outside. She found Mr. Long lying in the front yard, barefoot and undressed except for shorts and undershirt. The girls ran out and called the farm hand, Ford. Mr. Long was lying face down. They turned him over; his hands were under his chest; he held his Luger pistol in his right hand. He was dead. Dr. Bossert, a physician who was called to the ranch early on the morning of the death testified that he found one bullet hole in the forehead and one above the right ear; that there were what appeared to be powder marks around the wound in the forehead. Martin Kuehl, a mortician, testified that he observed a bullet hole in the forehead and another in the location of the right ear. The one in the forehead had a darkened area around it, toward the center, and the surrounding tissue was slightly speckled, having the appearance of powder marks.

Mr. Pearl Long Schinbine (she had married Mr. Schinbine four months after the death of Mr. Long), testified as follows: On returning from the restaurant in the early morning of June 7th she put the boys to bed, went into the bedroom, Mr. Long wanted to have intercourse, she refused, he said she was a hell of a wife, she replied she thought she was a good wife, she went into the living room with bed clothing and the alarm clock, some time later Mr. Long came into the room, said something about bothering her, went out and shortly afterwards she heard the shot. She ran out, Jo Ann, a daughter, came out and went for Ford; Mrs. Long saw the wound in the temple and could think of nothing except that Mr. Long had shot himself. She cried out ‘Oh, Busty, why did you do this to me.’ Thereafter, she gave expression to exclamations which indicated that she believed he had committed suicide and stated that he had ‘no rhyme or reason’ for doing so.

It was the theory of plaintiffs that Mr. Long stumbled over a chair or tripped on a string and fell and that the bullet entered his forehead. Several witnesses testified that after the shooting they found a chair overturned in the vicinity of where he fell and a string fastened to a post and the leg of a chair, and there was testimony that one of the small boys had put the string there. Other witnesses testified they saw no string.

Two physicians, Doctors Hall and Huntington, called by defendant, testified that with autopsy surgeon Dr. Newbarr they had examined the body, which had been exhumed three and a half years after death; that it was their opinion that the bullet had entered in front of the right ear although if there were powder marks on the forehead they would indicate that the point of entrance was the forehead wound. Dr. Hall testified that the forehead wound measured 1 x 5/858 inches; was in the midline of the forehead, 2 inches below the top of the head, and 1 3/434 inches above the ridge above the eye. The other wound measured 9/16916 x 5/16516 inches. It was 4 inches below the top of the head, 1 3/434 inches above the opening of the ear and 1 1/212 inches in front of it. Dr. Hall expressed the opinion that the entrance hole caused by a bullet would be smaller than the exit hole. Dr. Huntington testified that in the forehead wound a piece of bone appeared to have been driven outward into the subcutaneous tissue. To the best of his recollection, and as shown by his notes, this wound was beveled outward, the outside being wider than the inside, and there was some bone missing. The bones at the tempral wound gave the impression of being bent inward. There were numerous fractures of the skull, a ‘brust effect.’ The right temporal region was shattered. He expressed the opinion that the point of entrance was the wound in front of the ear. At the time of the autopsy the hair in the region of the temporal wound came off at touch and the doctors made no examination of it for burning or charring.

Mr. Uhde, a ballistics expert of the Los Angeles Police Department, testified on behalf of plaintiffs. He had made tests with decedent's gun for powder marks. The pieces of blotting paper used were introduced in evidence. With the gun one inch away there is a deposit of soot and outside of that a shadow ring almost an inch and a half in diameter; 2 inches away a sooting and some tatooing (powder marks); 3 inches away less sooting and more tatooing; 6 inches away very little sooting and considerable tatooing; 12 inches away no sooting and just a little tatooing. A question was asked whether the witness had made tests relating to powder marks and whether the presence of powder marks at a wound would indicate it was an entrance wound. Defendant's objection was sustained upon the ground that the results of the autopsy had not been shown.

Defendant produced a Mr. Harper, who testified that he was an expert in physics ‘one of the branches of science dealing with mechanics and the properties of matter.’ He had made a study of the properties of firearms. He testified that the gun in question had a normal 7 pound pull; when cocked it would not discharge when struck with a heavy mallet; it would not fire unless the safety was released; when a bullet passes through the skull bone the hole is beveled—the exit side is larger than the entrance side. He also gave it as his opinion that when the gun is fired, in contact with the head, there is no speckling or powder pattern; in this situation the entrance wound will frequently be larger than the exit, due to the entrance of the gasses into the fracture. Very frequently you will find excessive fracturing at the site of an entrance wound of contract, where it is backed up by bone. If the muzzle is several inches from the head you may have simple fracturing there, but nothing extensive. The witness also gave it as his opinion that if the forehead wound was larger than the exit wound because it was a contact wound there would have been no speckling; if there was speckling there would have been no contact at the time of the explosion. If there was speckling the gun could have been 2 or more inches away—not more than 24 inches; it is rather rare to have the entrance hole larger than the bullet. If the bone at the temporal wound was driven inward and the bone at the forehead wound was beveled outward, with some bone missing, it would indicate that the temporal wound was the point of entrance. When a person falls the normal movement is to throw down the hands to break the fall. In his cross-examination he testified that if a gun was in the hand it might possibly turn over if it hit the ground; the butt being square, it might not rock or turn away; the finger would have a tendency to press upon the trigger.

Error is assigned in the overruling of plaintiffs' objection to the reading of the testimony of Katherine Ross and that of Don Ross given at the first trial. The ground of the objection was that there was insufficient showing that either Mr. or Mrs. Ross was out of the jurisdiction. Code Civ.Proc. § 1870, subd. 8. Mr. Brazil, attorney for defendant testified that a subpoena for the witnesses had been returned by the constable unserved, and that he had been informed by an attorney in Paso Robles that Mrs. Ross was living in Santa Cruz, California, and Mr. Ross in The Dalles, Oregon. Defendant does not defend the ruling as it related to the testimony of Mrs. Ross, claiming only the objection was waived. The record does not bear out this claim. Upon the other hand plaintiffs do not set out any of the testimony of Mrs. Ross nor attempt to show that it was harmful. We have read her testimony. She testified that she was called to the Long residence the morning of Mr. Long's death; she did not remember Mrs. Long mentioning the string tied to the chair; that as nearly as she could remember Mrs. Long said that Mr. Long had said the night before that he would not bother her any more and she thought he meant that he was going back to bed. She also testified that she, Mrs. Ross, after a discussion with Mrs. Long, was able to arrange for the local newspaper to report Mr. Long's death as an accident. If it be granted that Mrs. Ross was not shown to have been out of the jurisdiction or unable to testify in person, we find no reason for holding that the ruling resulted in prejudice to plaintiffs' case. The explanation of Mrs. Long as to her understanding of the statement of Mr. Long about bothering her or not bothering her was not at all unfavorable to plaintiffs.

Mr. Ross testified that Mrs. Long told him and Deputy Sheriff Calvert that Mr. Long said ‘All right, that's the last time I'll bother you’, and that she thought he meant that he was going back to bed. He also testified that shortly before the first trial he asked Mrs. Long what she thought of her prospects of winning and that she said she thought she would win if he, Ross, did not do her too much damage. There was no explanation as to what she meant nor any intimation that she asked Ross to favor her in his testimony. The objection to the reading of the testimony of Mr. Ross was technical. In the absence of any suggestion that the information as to the absence of Mr. Ross was unreliable there was no abuse of discretion in overruling the objection.

As previously stated, it was plaintiffs' theory that Mr. Long suffered the forehead wound when he fell. Defendant's theory was that the bullet entered near the right ear, which, of course, would have been more consistent with suicide than with an accident. As mentioned above, two disinterested witnesses testified to the presence of powder marks at the forehead wound and to a dark surrounding area, both of which would unmistakably identify this wound as the point of entrance. The most potent evidence tending to prove suicide was that given by the witnesses who made an examination of the body some three years after burial. At the first trial, in the absence of such evidence, a jury decided against the suicide theory, and, as previously mentioned, the court granted defendant a new trial. Doctors Hall and Huntington, who were of the opinion that the bullet had entered the temple, made only a superficial examination. They merely looked at the wounds and measured them on the exterior. The court had ordered exhumation of the body on defendant's motion but had limited the examination to the exterior of the body. Both doctors testified that they had court authority to make only a superficial examination, which may account for their failure to be more thorough. They made no examination of the temporal wound for powder marks or scorching of the hair, or what remained of it. While they did not notice powder marks at the forehead wound it does not appear that they looked carefully. There was no attempt made at chemical analysis for the purpose of ascertaining whether powder had entered either wound, nor was there evidence whether powder marks would have been discoverable after such a length of time. The body was badly decomposed and moldy. Although the doctors described what they saw they made no miscroscopic examination and took no measurements to ascertain to a certainty whether the bone was beveled at either wound. They did not examine the temporal wound to determine whether bone was missing, nor did they determine whether bone fragments had been driven into either wound. They are not subject to criticism for the incomplete and unscientific examination which they made. They believed they were limited by the court order. It may be that the autopsy surgeon, Dr. Newbarr, made a more thorough examination, but he was not called as a witness and his report was not in evidence.

In the cross-examination of Mrs. Schinbine she was asked whether after the funeral she had not told Mr. Long's sister, Edith, that Mr. Long said he was going to kill himself, which she denied. She said she could not recall having made that statement to Edith because she did not remember Mr. Long ever having threatened to kill himself. The court asked ‘You say you never heard your husband ever say he was going to commit suicide at any time?’ and she answered ‘I never did.’ Questioned further whether Mr. Long had threatened suicide some three years before, Mrs. Schinbine recounted an incident when Mr. Long had traded a truck for an army ambulance, a transaction which drove her to tears. The court questioned ‘Well, did he say anything about committing suicide then?’ and she answered ‘No.’ Upon further cross-examination she testified she did not remember an occasion when Mr. Long waved a gun around. She denied that he attempted to take his life or that she abused him or called him stupid; also testified that his brother George did not take a gun from him. She was asked whether Mr. Long had threatened suicide on more than one occasion and denied that he had. George Long, one of decedent's brothers, testified over plaintiffs' objection that in 1946, late at night, at the Clarence Long home in Bakersfield, Clarence came out of the house with his wife; they seemed to be having an argument, Clarence had a revolver in his hand; he talked of committing suicide, he was very drunk; George got the gun from him and put him to bed. In overruling plaintiffs' objection the court said, in part: ‘But it's certainly admissible on the question of the state of mind, and to show the state of mind of this man on this evening, to show his disposition and the attitude of the parties toward each other. Its remoteness is a question for the jury.’ Defendant does not undertake to defend the ruling upon that ground. The evidence was not introduced, defendant says, to prove Mr. Long's disposition, or state of mind, but only to impeach the testimony of Mrs. Schinbine that there had been no serious quarrels and that her husband had not threatened suicide. This explanation is not borne out by the record. Before the testimony as to the threatened suicide was introduced defendant made an offer of proof that Mr. and Mrs. Long had quarreled over an exchange of motor vehicles Mr. Long had made at that time; he ‘attempted to commit suicide’, and that George Long took a gun away from him. Had it been the intention of defendant to prove merely that there had been a serious quarrel in 1946, which is now claimed to have been the purpose, the offer of proof would have been limited accordingly and the testimony would have been confined to that fact. The avowed purpose was to prove the threat of suicide, which defendant's counsel in his offer of proof designated an attempt at suicide. No question is raised as to the evidence that was introduced respecting the previous alleged quarrel itself, apart from the claimed threat of suicide.

Evidence of threats of suicide by the deceased has been held admissible in prosecutions for murder, People v. Wilson, 14 Cal.App. 515, 112 P. 579; People v. Selby, 198 Cal. 426, 245 P. 426; People v. Tugwell, 28 Cal.App. 348, 152 P. 740; it has been received as a part of the res gestae in a suit on an insurance policy where the declaration was made at the time of the disappearance of the deceased, Rogers v. Manhattan Life Ins. Co., 138 Cal. 285, 71 P. 348, and has been denied admission in an action on an insurance policy where the alleged declarations were made an indefinite number of days before the death. Jenkin v. Pacific etc. Ins. Co., 131 Cal. 121, 63 P. 180.

Plaintiffs rely upon the Jenkin case and the well reasoned case of Hale v. Life Indemnity & Investment Co., 65 Minn. 548, 68 N.W. 182. In the former case it was not shown when the threats were made and the court held the alleged statements to be hearsay and inadmissible as against the beneficiary and her assignee. In the latter case evidence of threats of suicide made two years before the death was rejected and the ruling was upheld. The court stated, 68 N.W. at page 183: ‘The declarations must, in order to be admissible in evidence, bear a reasonably close relation, in point of time, to the alleged act. The reason for the rule suggests and enforces the necessity of this relation between the declaration of the party, and the doing of the alleged act by him. They must be so near in point of time as to justify a reasonable probability, in connection with the other evidence in the case, that the party in fact carried his declared intention into execution.’ In the leading case of Commonwealth v. Trefethen, 157 Mass. 180, 31 N.E. 961, 24 L.R.A. 235, a murder case, which held it was reversible error to exclude evidence of a threat of the deceased to drown herself because of her pregnancy the court emphasized the fact that the threat was made the day before her death by drowning. The court stated, 31 N.E. at page 962: ‘When evidence of declarations of any person is offered for the purpose of showing the state of mind or intention of that person at the time the declarations were made, the declarations undoubtedly ‘may be so remote in point of time, or so altered in import by subsequent change in the circumstances of the maker, as to be wholly immaterial, and wisely to be rejected by the judge.’' The Trefethen case was cited with approval in People v. Tugwell, 28 Cal.App. 348, 152 P. 740, supra. The court also approved the holding in People v. Wilson, 14 Cal.App. 515, 112 P. 579, supra, that in a prosecution for murder the court should be liberal in receiving evidence that ‘might in any way aid the jury in determining who caused the death of the deceased.’ The reasoning of these cases implies that in a prosecution for murder the court should not exclude evidence of threats of suicide by the deceased upon the ground of remoteness. Upon the other hand extensive research has not disclosed a case in which a single threat of suicide has been given in evidence where the threat was made several years before death and the conditions which induced it were not shown to be of a continuing nature, or to have had existence at or about the time of the death. We do not subscribe to the statement of the trial court that the question of remoteness was for the jury. It is unquestionably the duty of the court to exclude offered evidence of acts or declarations so removed by lapse of time or by change of circumstances as to bear no reasonable relation to a fact in issue, but this is a question for decision on the facts of the particular case. If it were an important question in the present case much authority could be cited to the proposition that the remoteness of the claimed suicide incident would have been a sound reason for rejecting the questioned testimony of George Long. The Jenkin case would be one such authority. But the argument of remoteness urged by plaintiffs for rejection of the testimony tends to defeat their contention that the evidence was prejudicial. The reason for excluding evidence upon the ground of remoteness is that it would not logically tend to prove a fact in issue, and should therefore be removed from consideration by the court or jury. If it is erroneously admitted it does not, of course, follow from the mere fact of its remoteness that the jury may not be improperly influenced by it. However, in the present case, we are satisfied that there is no reason to believe that the verdict of the jury was influenced by the evidence of the threat of suicide made three years before Mr. Long's death. Being convinced that the evidence was not harmful to plaintiffs to an extent that would warrant a reversal of the judgment we refrain from deciding whether its admission was error. The vague exclamations of Mr. Long respecting suicide were allegedly made following a violent quarrel with his wife and while he was very drunk. There was no evidence that he attempted suicide or that George had any difficulty in obtaining possession of the gun and putting Clarence to bed. There was no evidence that Mr. Long was under the influence of liquor on the night of his death. The evidence was to the contrary. The argument which took place seems to have been of trivial importance. Some three years had elapsed, during which there had been no threat of suicide. The impulse evidenced by the former statement and the circumstances which induced it had not reoccurred. The threat, if it was a threat, was no more than an impulsive one made without any attempt to put it into execution. Mr. Long was shown to have been in good health, of jovial disposition and prosperous. There was much evidence that he and Mrs. Long led a happy married life, and slight evidence to the contrary. There was evidence that Mr. Long had made plans for the following day. This evidence, of course, did not eliminate the possibility that upon slight, or no provocation, and upon sudden impulse, he took his own life.

There are even more forceful reasons for our holding that the alleged threat of suicide could not have influenced the verdict. The potent evidence which determined whether Mr. Long's death was suicidal or accidental consisted of the physical conditions which were described by the witnesses, namely the location and appearance of the two bullet holes. The only evidence that the point of entrance of the bullet was in the forehead consisted of the testimony of Dr. Bossert that there was speckling resembling powder marks around the wound and the testimony of Mr. Kuehl that there was such speckling, and also a dark area around the wound. If this condition existed there could be no doubt that the bullet entered the forehead. Nor could there be much doubt that such a wound was received when Mr. Long fell. It would be unreasonable to believe that a right-handed man would intentionally fire a shot into his forehead that would emerge above and in front of the right ear. It would be next to impossible. There was no difference of opinion on that point. Diametrically opposed to the evidence as to the existence of powder marks on the forehead was the evidence of Doctors Hall and Huntington which we have related. If the bone structure at the wound in the temple was pressed inward and beveled as described, if there was bone missing at the forehead wound, which was the larger, and a piece of bone forced outward, and if the bone there was beveled so that the outer surface was larger than the inner, the wound in the temple was undoubtedly the point of entrance of the bullet. Moreover, there was evidence that the forehead wound would have been larger than the other only in case the gun was held in contact with the forehead, and the surrounding surface would not have been powder marked. These conflicting conditions described by the witnesses were irreconcilable. The issue was sharply defined. All other circumstances were of comparatively slight importance and but remotely corroborative of the evidence of the physical facts. The jury was compelled to find that there were or were not powder marks on the forehead, and that there were or were not the beveling of bone and the other conditions described by Doctors Hall and Huntington. A finding of the existence of powder marks on the forehead would have been conclusive, under the theories of the parties, and would have resulted in a verdict for plaintiffs. The contrary verdict inevitably means that the jury found there were no powder marks. The verdict was therefore necessarily based upon the physical evidence which tended to establish the wound in the temple as the point of entrance. We think it will be clear from our discussion that all the other evidence in the case would have been of no substantial assistance to the jury in determining whether the bullet entered the forehead or at the temple. This was the entire case. The verdict necessarily implies that in the minds of the jurors the evidence relating to the condition of the head given by the doctors, and the fact that the forehead wound was larger than the other, outweighed the evidece of the existence of a darkened area and powder marks on the forehead. In resolving this conflict any evidence of a previous threat of suicide would have been irrelevant, and could not with any reason have been taken into account by the jurors.

We find no error in the limitation of the cross-examination of defendant's witness Charles Long, consisting of sustaining defendant's objection to a question whether in a conversation with Mrs. Long he had not expressed the opinion that Mr. Long had not committed suicide.

The witness Uhde, previously mentioned, was recalled by plaintiffs. He was questioned whether he had made tests by tripping and falling to determine how he could produce wounds such as those inflicted upon Mr. Long. Defendant objected, one ground of the objection being that the tests were not conducted on the Long ranch. The objection was sustained, apparently upon the ground that it was not a proper subject of expert testimony. Plaintiffs offered to prove that the witness ‘* * * conducted 30 to 45 tests of tripping and falling, and that the tests demonstrate that the entrance wound of the bullet would be in the forehead, and the exit wound would be in the temple * * *.’ It was stipulated that plaintiffs' offer of proof was sufficient. The court ruled against any testimony ‘regarding experiments where he tripped.’ The ruling was not erroneous. Experiments which can be made without special knowledge or training and which are largely based upon speculation are not a proper subject of expert testimony. If the purpose was to prove that the witness in tripping and falling 30 to 45 times with a loaded gun in his hand and his finger upon the trigger would have been more likely to shoot himself in the forehead than above the ear his opinion to that effect would have been mere speculation and no evidence whatever as to the manner in which Mr. Long met his death. As previously mentioned, Mr. Harper testified on cross-examination that a man holding a pistol might fall so that it would strike the ground butt first and remain pointed toward him; the fall would have a tendency to press the finger on the trigger. We think nothing more than this could have been developed through the witness Uhde, and that the testimony as to his experiments in falling was properly excluded. It was not error to exclude evidence that Mr. Long had had previous accidents through carelessness in handling a gun. There were no facts in evidence which indicated that the gun was discharged as a result of his carelessness in handling it.

It was not error to instruct the jury as to the pertinent provisions of the insurance contracts and that if the jury found ‘by a preponderance of the evidence’, and was satisfied from the evidence that Mr. Long committed suicide, they must find for the defendant.

Although, as we have pointed out, there was a failure to employ the available scientific methods of examination for the discovery of conditions which would have determined with certainty at which point the bullet entered, that failure was not due to any error of the court at the trial. There was a great deal of evidence which was of trivial importance as compared with the conflicting evidence respecting the conditions of the bullet holes. Plaintiffs' case was lost because the jury was not convinced there were powder marks and a darkened area around the wound in the forehead. There were no rulings of the court which could have influenced the jury in weighing the reliability of the testimony that such marks existed and the opposing evidence. There is no reason for holding that the judgment amounts to a miscarriage of justice.

The appeal was taken also from an order denying plaintiffs' motion to strike the judgment and enter a new judgment and from an order taxing costs. Appellants do not mention these grounds of appeal in their briefs and they will be deemed to have been abandoned.

The judgment and the orders appealed from are affirmed.

SHINN, Presiding Justice.

WOOD, J., concurs.

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