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District Court of Appeal, Third District, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Charles E. COLE, Defendant and Appellant.*

Cr. 2620.

Decided: January 10, 1956

William E. Jensen and Kenneth K. Casper, Vallejo, for appellant. Edmund G. Brown, Atty. Gen., Doris H. Maier and F. G. Girard, Deputy Attys. Gen., for respondent.

By an indictment defendant was charged with the murder of one Helen Myrdell Roberts, and with three prior felony convictions. He entered a plea of not guilty to the charge of murder and admitted the prior convictions. The jury found him guilty of murder in the first degree and fixed his punishment at life imprisonment. He now appeals from the judgment of conviction which was thereafter entered and from the order denying his motion for a new trial.

The prosecution's case is based entirely upon circumstantial evidence and primarily upon the testimony of one Josephine Hill, without whose testimony, as the trial judge noted, the case for the People would not have supported a conviction. Originally she had been charged with assisting a felon (the defendant) to escape, but the charge was dismissed on motion of the district attorney. The defendant did not testify.

A summary of the record shows that on Monday afternoon, November 15, 1954, the decedent's body was found near a highway in Sutter County. A pathologist who conducted the autopsy testified that her death was caused by a gunshot wound. The bullet had entered her body slightly below the left armpit, traveled across the thorax to the middle of the heart, then along the lung and the soft tissue beneath the right shoulder to the humerus of the right arm, about three inches below the shoulder joint. The doctor further stated that in his opinion she had been dead from 12 to 14 hours at the time of the autopsy. Over the objection of defendant, the doctor was allowed to testify that the wound was not self-inflicted.

The decedent was a Caucasian, righthanded, somewhat obese, approximately 50 years of age and married. The defendant is a married, middleaged Negro. The two had met in the early part of 1954 when he sought a position through her employment agency in San Francisco. She also operated two nursing homes—one in Mountain View and one in Walnut Creek. After several interviews and some occasional meetings, decedent deserted her husband, left her businesses and began an illicit relationship with the defendant. Apparently to avoid discovery by her husband and her family, she and the defendant registered at various motels around the Bay Area under fictitious names. At the time of her death they were registered at a Vallejo motel as Dr. and Mrs. Breault.

On several occasions Mrs. Roberts arranged secluded meetings with an old friend in an endeavor to obtain money upon the representation that she was going to an eastern city to start life anew. As a result of these meetings, at which defendant was present, she received a total of approximately $250. Less than two weeks prior to her death she had sought more money in the same fashion but without success. She had received somewhat more than $400 from the businesses which she had left. She had also used her automobile as a part down-payment on a station wagon which she and the defendant acquired in joint ownership.

During the time decedent lived with defendant her husband telephoned him in an endeavor to discover her whereabouts, and defendant's reply was that he would kill any one who was spying upon him. During this same period, and while he was still living with the decedent, defendant also maintained a room at the residence of Mrs. Josephine Hill, an elderly Negro widow whom he had met in December of 1953. Mrs. Hill, a woman of some means, had consented to marry him and had loaned him approximately $2,200 for his personal use and to enable him to establish a business. He in turn represented that Mrs. Hill's real property was his and had engaged in negotiations for its sale.

On November 14, 1954, at approximately 4:45 p. m., defendant and decedent were seen leaving the Vallejo motel where they were living. At approximately 6:00 they were seen to stop at a grocery store which decedent entered. Before following her into the store, defendant was observed speaking with the occupant of an automobile parked nearby. During this conversation he displayed an automatic pistol which looked like the death weapon. When decedent and defendant returned to the automobile, they drove across the street to a service station where they talked with the attendant for approximately 20 minutes. During this period decedent appeared to be in good spirits but defendant was very solemn.

Mrs. Hill's testimony reveals the following events: At approximately 9 p. m. on that evening, defendant appeared at her home. He excitedly told her that decedent had shot herself; that Mrs. Roberts had had a gun and had said to him, ‘I ought to shoot you and the dog and myself,’ and as she said ‘myself’ she fired the fatal shot. He asked Mrs. Hill to accompany him, which she did. Mrs. Roberts' body was resting on the front seat of the station wagon and, according to Mrs. Hill, was still warm. They drove to a point in Sutter County where the defendant stopped and placed Mrs. Roberts' body in a ditch. On their return to Vallejo, which was about 4 a. m. on November 15, defendant and Mrs. Hill drove to the motel where he and decedent had been registered. He awakened the motel manager in order to obtain a key (the original key was found on the deceased) and told him the fictitious story that Mrs. Breault had gone to a theater with a blond man and stated that if she returned and wanted to reach him she could do so at Mrs. Hill's house. Mrs. Hill and the defendant then placed the decedent's purse on a dresser in the motel room, collected defendant's belongings and returned to Mrs. Hill's residence.

Shortly after their return, defendant gave Mrs. Hill an automatic pistol and requested her to ‘get rid of it.’ Following his arrest she wrapped it, together with the cartridges, and gave it to a roomer, telling him to drop it in the Bay. However the roomer upon learning of the death and subsequent arrests turned the weapon over to the authorities. On the day after their return from Sutter County Mrs. Hill cleaned out the interior of the car. Subsequently investigating officers found the metal jacket of a cartridge that had been fired from the gun in the driveway of her home near where she had cleaned the car. Her answers regarding the cartridge were confusing—first that she had not seen it in the back seat, and then that she had; and then that defendant had picked it up and thrown it away but not in her yard. She testified she had given the gun to defendant approximately two months before to have it cleaned; that when he returned the gun she put it on her dresser and that it subsequently disappeared. On several occasions defendant was seen in possession of a similar weapon. According to a ballistics expert called by the State, the fatal bullet was fired from this gun, as was the cartridge found on Mrs. Hill's driveway.

Defendant cautioned Mrs. Hill against revealing her activities of that evening to any one and instructed her that they should say he took decedent to a theater at approximately 6 p. m. and had arranged to return for her at 9:00; that when he and Mrs. Hill returned, decedent had been seen to get into a car with some one else and drive away. When questioned by police officers, he stated he and Mrs. Hill had searched for decedent until about 4 a. m. and then returned to the motel to get some of his belongings. He denied that he ever owned or possessed a gun but later admitted his statement was not true.

Defendant's first contention is that the trial court committed prejudicial error in allowing the autopsy surgeon to testify that in his opinion the gunshot wound suffered by Mrs. Roberts was ‘not selfinflicted.’ The evidence is uncontradicted that the cause of her death was a gunshot wound. However, the facts surrounding decedent's death are wholly unexplained, and therefore, as defense counsel notes, the prosecution's case necessarily had to eliminate the probability that she met her death by suicide or accident. The only direct evidence concerning how she met her death, and which evidence injected the question of suicide into the case, is found in the testimony of Mrs. Hill, a prosecution witness, that the defendant told her when Mrs. Roberts came out of the grocery store where she and the defendant had stopped, she said to him, as previously noted, ‘I ought to shoot you and the dog and myself;’ that when she uttered the word ‘myself’ she fired the fatal bullet into her body; and that when the defendand returned to the witness' home he stated to her, ‘Helen shot herself; Helen shot herself.’ Additional evidence bearing on the question of suicide shows that Mrs. Roberts had entered the period of menopause; that according to business associates and personal acquaintances, immediately prior to and after she left her employment service, she appeared worried, upset and depressed and was in financial difficulty. She had cut off all ties with her family and was living with one not of her own race in various motels. There also was the testimony of the ballistics expert, also called by the State, that by reason of the type of powder burns on the decedent's coat, the gun would have to have been held ‘very close’ and that ‘there was a contact, or [it was] almost in contact with the coat.’ The only personal friend she saw after leaving her family gave her money upon the statement that she was going away to some eastern city where she might start entirely anew.

The specific testimony to which the defendant objects was elicited from Doctor Paxton, a pathologist called by the prosecution as its first witness. After the usual qualification, he testified that he had performed a ‘routine autopsy to determine the cause of death’ which, in his opinion, resulted from a gunshot wound which perforated the heart. The remainder of his direct examination consisted of a description of the course of the bullet, his findings in that regard, the effects of rigor mortis, his opinion that death had occurred from 12 to 14 hours prior to the autopsy, and a detailed description of the contents of the stomach. At that point, having testified to all of the physical facts he had observed, there was nothing further for him to add. However, following cross-examination of the doctor by defense counsel, the district attorney asked leave to reopen his direct examination of the witness for two or three questions which he had overlooked on direct. He then asked the doctor if he had an opinion as to whether or not the gunshot wound ‘would have been or could have been a self-inflicted wound.’ The defendant objected on the grounds that it was not proper subject matter for expert testimony; that it was invading the province of the jury; and that in any event there was not sufficient foundation for the doctor's testimony; that is, that while he may have been well qualified as a pathologist to give his opinion concerning the cause of death, he was not qualified in any way to answer the question asked. The district attorney, in answer to the objections raised by counsel for the defendant, stated to the court, ‘We feel the doctor is qualified, having seen this body; he has noted the length of the arms of the deceased person and, well, he has already testified as to her obesity and so forth and so on; we feel he is in a position to tell us whether he thinks that person could have discharged a pistol into her own person as to cause this wound.’ Defendant's objection was overruled and the doctor was permitted to testify. Specifically the court held that ‘* * * it is a matter of expert testimony which the District Attorney is entitled to elicit here, as to whether or not that woman herself could have inflicted the wound in question.’ The transcript shows the following questions and answers:

‘Q. * * * do you have an opinion as to whether or not that would have been or could have been a self-inflicted wound?

‘Mr. Jensen: I am going to object at this time, your Honor; I don't believe there has been any foundation laid for the doctor having the capability of forming such an opinion. [After discussion between counsel and the court, the question was re-worded as follows:]

‘By Mr. Lynch: Q. * * * do you have an opinion as to whether or not that pistol could have been held by the deceased at the time the trigger was pulled and the gun was discharged?

‘The Witness: I have an opinion, yes.

‘Q. Will you let us have that opinion, please, Doctor? A. This would be a very unusual pattern for a self-inflicted wound.

‘Q. Will you elaborate on it a little bit Doctor? A. Position of the entrance and wound, as you can see the diagram here, is in the left anterior of the chest, laterally, and the deceassed was quite obese.

‘Q. Assuming that she was right handed as most of us are. A. I don't know. Maybe she is left handed; but it would be rather difficult to hold a gun in a position such as to give you a bullet flight in the path that this one has taken. And left handed, it would also be rather difficult, as you can see; I don't know how, what position one would assume with the left hand and inflict the wound such as this. * * *

‘By Mr. Lynch: Q. * * * (Handing pistol to the witness) Assuming that that gun was held in the left hand; let us say for the sake of argument this party was left handed, Doctor, could the muzzle of the gun be placed against this particular spot where you found this wound so as to cause the bullet to take a course as you have found? A. It would be difficult for me to place it in such position. I don't know how one would do it. Perhaps like that (indicating), there is a possibility.

‘Q. You have doubled your elbow back behind you in order to do it. * * * A. Yes. The right hand would be equally as difficult, if not more so.’

After questioning the doctor concerning the course of the bullet, the district attorney concluded his examination. On cross-examination the doctor was asked the following questions and gave the following answers:

‘Q. Doctor, what was the measurement of the left forearm of the victim? A. We didn't measure it * * * I couldn't tell you.

‘Q. How about the upper arm? A. I didn't measure it.

‘Q. You made no measurements of the arm? A. No.’

There followed numerous questions and answers apparently referring to demonstrations by the doctor and counsel for the defendant of the manner in which a person could hold a gun and yet cause a wound such as here. The doctor was then asked:

‘Q. * * * it is possible, is it not, Doctor? A. It is possible. * * * [The doctor was then asked if the woman had been found in a room, locked from the inside, with a pistol in her left hand, what his diagnosis would be.] A. I would still give the same diagnosis as to the cause of death, and as far as having an opinion as to whether it is self-inflicted or inflicted by some other source, I would be highly skeptical to the idea that it was self-inflicted.

‘Q. Well, as a matter of fact, Doctor, whether a wound is self-inflicted or whether it is inflicted by some other source, is entirely dependent on outside factors, is it not? A. That is right. * * *

‘Q. * * * Generally speaking, though, in determining whether a death is caused by suicide or by criminal homicide, that is a matter for the Sheriff's Office, isn't it? A. It certainly is.

‘Q. You would not call that a medical diagnosis, would you? A. Only I would give an opinion if I had some valid reason for forming an opinion.

‘Q. But, I mean, you examined her, you see the bullet going in this side? A. Yes.

‘Q. You find it traversing the body and lodging over here in the shoulder, is that correct? A. Yes.

‘Q. That is your extent of the knowledge of cause of death, is it not? A. Yes.

‘Q. Now, to form an opinion you have to be give an outside factor, this opinion as to whether suicide or self—A. (Interrupting:) I can form an opinion from my past experiences in examining the suicidal victims, which I have examined, and I would say that ninety percent of the suicidal victims I have examined have shot themselves in the head.

‘Q. All right. A. And a majority of those are in the right temple area.

‘Q. Yes. A. The next most common site is through the mouth.

‘Q. Through the mouth? A. The next most common site is an attempt at the heart, right through here (indicating); and I have never seen one in this position. * * *

‘Q. And you do not know whether this woman was right or left handed, do you? A. I do not, no. * * *

‘Q. Might I ask you what you base your opinion on then? A. On past experience on suicidal victims; a suicidal pattern, and the pattern of this is not that of a suicidal pattern. And I have explained that pattern to you, that ninety percent of them usually are here in the right temple area. * * *

‘Q. May I ask if this is the correct and sole basis of your opinion, that this is not a self-inflicted wound, is the location of the wound? A. The location in my opinion indicates that this is not self-inflicted.

‘Q. That is the only facts in this particular case, not going to your past experience, but in this particular case, that you take into consideration in giving this opinion?

‘The Court: I don't want to interrupt unduly. The doctor's opinion is as indicated a moment ago, and he bases it of course on his own experience and training. That is the situation? A. That is right.

‘The Court: He has no record available, Counsel. He has given his figures as well as he may.

‘Mr. Jensen: I am just trying to get it in this individual case.

‘The Court: You have the answer, in my opinion. Ask the question again. * * * [The court then restated the question as follows:]

‘The Court: Doctor, counsel has asked you whether you base your opinion in this case as to whether or no this was a self-inflicted wound or otherwise solely upon the condition of the body as you found it there with reference to the gunshot wound. A. I do.

‘The Court: Yes. A. In this particular case.

‘The Court: Of course, you base that also upon your learning and training. A. That is right.

‘The Court: And experience. A. I mean opinions are formed from several sources, and experience is one of them.

‘The Court: Very well. You may ask another question, Counsel.’

We cannot agree with the contention of the State that the testimony of the doctor was within the realm of legitimate expert testimony. The ultimate issue for determination by the jury was whether or not Mrs. Roberts met her death at the hands of the defendant as charged. It was proper to ask the doctor what caused her death, but to ask him in effect if her death was suicide or murder was to allow him to give his opinion on the ultimate fact in issue and thereby to invade the province of the jury. The plain import of his testimony was: This is not suicide—this is murder; this is true because the location of the wound does not conform with suicidal patterns and hence indicates it is not self-inflicted.

Such testimony was given added credence by the fact that it came from an official, the county pathologist. Its effect on the minds of the jury could not help but have been most persuasive, even to a point where the jury accepted his inferences and wholly failed to draw its own. The admission of the testimony relative to suicidal patterns only added to the error.

Further dignity was given the doctor's testimony by the final questions and remarks of the trial court when, at the conclusion of the doctor's cross-examination, the judge stated that ‘of course’ such testimony was based upon his ‘learning and training * * * and experience.’

There can be no question but that the testimony given by the doctor concerning his findings as a result of his autopsy examination of the decedent and his opinion as to the cause of her death was legitimate expert testimony under the provisions of section 1870, subd. 9, of the Code of Civil Procedure. Such evidence was admissible because the question was one not within the common knowledge and experience of men; therefore the knowledge, skill and experience of a person trained in a particular field would be of assistance in reaching a conclusion not otherwise possible under the circumstances presented, to wit, what caused her death. But the jury had all of the facts concerning the cause of death—the doctor could add nothing in that regard. They could draw inferences therefrom as to how it occurred just as well as could the doctor.

The testimony in question is objectionable on the further ground that ordinarily an expert witness may not give his opinion on the ultimate issue in a case. People v. Heacock, 10 Cal.App. 450, 102 P. 543. But this, like all rules, is subject to certain exceptions such as where the only issue relates to value and it becomes impossible to ask the question otherwise. (See People v. Wilson, 25 Cal.2d 341, 349, 153 P.2d 720). Paraphrasing the comment of the court in the Hecock case, 10 Cal.App. at page 455, 102 P. at page 545, in the case at bar the vital question at issue was whether Mrs. Roberts' death was the result of suicide or the result of criminal violence at the hands of the defendant. The evidence connecting defendant with her death was wholly circumstantial, and its strength depended upon eliminating suicide as a probable cause. This was a question for the jury to determine from the facts and circumstances proven, or from its own experience and observation. The position of the wound had been shown and the course of the bullet described by the doctor. The determination to be made therefrom was for the jury.

A similar situation was presented in People v. Smith, 93 Cal. 445, 29 P. 64. The defendant who was wounded by decedent during an argument contended he acted in self defense, and from the peculiar facts in the case it became material to ascertain the position of the defendant when he was shot. Over objection a doctor was allowed to testify to the position of the defendant's arm at the time he was shot. In reversing the case the court held:

‘The subject-matter of the inquiry was not one in relation to which the opinion of an expert can be properly received. The position of the wound being given, and the course taken by the bullet known, the jury was fully as competent to determine the relative positions of the parties to the difficulty as was the witness.’ 93 Cal. at page 447, 29 P. at page 64; see also People v. Salaz, 66 Cal.App. 173, 225 P. 777.

We conclude as did the court in Kauffman v. Maier, 94 Cal. 269, 282, 29 P. 481, 484, 18 L.R.A. 124, ‘If the court permits the jury to be influenced by the judgment of such witnesses, it deprives the litigants of their right to have the jury render its verdict upon the facts in the case, and to this extent substitutes the judgment of the expert for what should be the judgment of the jury.’ It necessarily follows from the rules as enunciated in the cited cases, and from the facts and circumstances disclosed by the record before this Court, that the judgment must be reversed.

By reason of what we have heretofore said concerning the admission of the testimony in question, it becomes unnecessary to discuss the additional contentions made by defendant.

The judgment and order are reversed.

PEEK, Justice.

VAN DYKE, P. J., and SCHOTTKY, J., concur.

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