PEOPLE v. MOORE (1953)

This is an appeal from the judgment and from the order denying defendant's motion for a new trial.

Defendant was charged by information with the crime of murder. The jury returned a verdict of manslaughter following a trial that required eighteen trial days.

The defendant and the viotim of the murder were husband and wife.

The facts in part, as recited in appellant's brief and which are supported by the record, are as follows:

‘Appellant is a woman of some 41 years of age; that she married Dr. Moore on February 23, 1941, at Omak, Washington; that after his term of military duty they came to Southern California in 1946 where they subsequently purchased a home at 4106 Fulton Avenue, Sherman Oaks, California, and he opened up an office specializing in ophthalmology at 5061 Lankershim Boulevard, North Hollywood; both appellant and deceased had been married before, appellant being the mother of Antonia Thomas, known as Toni Moore, age 15 years, and Dr. Moore the father of Thomas Moore, age 16 years. As the result of their marriage there is a son, Telford I. Moore, Jr., known as Timmy, age 8 years; appellant worked at her husband's office as a secretary and nurse under her maiden name of ‘Miss Patricia Gallagher’ as well as maintained their home and raised the children.

‘From April, 1951, on the deceased started to abuse appellant physically and mentally. As a result of said abuse appellant had a breakdown and he sent her at various times to three psychiatrists, Dr. John D. Moriarity, Dr. Carl von Hagen and Dr. Alvin Gerty, who gave her ‘shock’ treatments. About this time Dr. Moore gave appellant large doses of sedatives and narcotics, in spite of admonitions from Commander Joseph O. M. Thatcher, also a doctor and a personal friend of the family. She repeatedly told her husband that she preferred to remain at home with the children, but because of the heavy medical practice of deceased he insisted on her remaining in the office, in spite of the warning of Dr. Harvey Billig, a personal friend whom she also consulted.

‘Finally, in June of 1951, on the advice of Dr. von Hagen, she took a trip to Hawaii and remained there with her two children until July, 1951, at which time she returned home and discovered that her husband was associating with Mrs. Betty Blanchard. Because of appellant's knowledge of his activity, he further abused her, threatened to kill her, cursed her and inflicted great physical and mental suffering on her. About this time she met Robert T. Holroyd and Elton E. Sawyer, police officers, who installed a dictaphone in her home for the purpose of gathering evidence for a separate maintenance action which she filed through her attorney, Milton M. Cohen, on August 27, 1951, in the Superior Court of Los Angeles County. Subsequently, after a hearing, the Court made a decree ordering Dr. Moore out of the house, prohibiting him from molesting the appellant and ordering him to pay certain sums for the support of her as well as her child.

‘In August of 1951 Officer Holroyd obtained the services of Dorothy Doir, a policewoman, who remained with appellant for several days, and Officer Sawyer gave her a revolver for her protection. After many requests on the part of Dr. Moore, a reconciliation agreement was drawn and on December 7, 1951, they again assumed marital relations. In this agreement Dr. Moore gave appellant the home, as well as its furnishings, and remained with her until January 14, 1952, at which time he moved out. During the period of the reconciliation appellant discovered that her husband still continued his relationship with Betty Blanchard. After moving out of the house on January 14, 1952, deceased recorded a notice of rescission of the reconciliation agreement. On March 17, 1952, appellant, without funds for support, consulted Attorney Frederick Dockweiler, who thereafter advised and represented her in all further legal matters. Dockweiler had many conferences with Dr. Moore and in spite of repeated efforts he could never negotiate an amicable settlement of their domestic affairs; and in order to enforce the Court's order for appellant's support, on May 6, 1952, he obtained an order to show cause which was served on Dr. Moore by John F. Lydon, a private detective, and Albertine Jones, a personal friend. At the time of the service Dr. Moore was living at the Greenbriar Apartments, Hollywood, under the name of George M. Benson, and was found the evening of the service with Mrs. Blanchard. Upon returning home appellant endeavored to locate Don Blanchard, and being unable to do so she phoned other people who might know where Blanchard could be reached. She also called her attorney, Mr. Dockweiler, who was not home, and contacted Mr. Holroyd. She asked Mr. Lyden and Mr. Holroyd to go to the Blanchards and Mrs. Jones to continue to call and endeavor to reach Mr. Blanchard.

‘At home that evening was Patricia Silvagni, a school-mate of her daughter, and her son Timmy Moore. Patricia informed appellant that Dr. Moore had called and while waiting for a telephone call from Attorney Dockweiler Dr. Moore phoned appellant and insisted on seeing her immediately for an interview. Appellant told him she did not want to see him. Fearing that he might assault her she procured the revolver that Officer Sawyer had given her for her protection and went downstairs to open the door. He rushed through the house, running from the hall into the pantry, through the dining room, back into the hall, through the pantry and again into the dining room where he assaulted her with his fists, knocking her to the floor and rendering her momentarily stunned and unconscious.

‘While in that condition the gun was discharged, the bullet striking a door and ricocheting into Moore's body. Unaware that the gun had been fired, and believing that her life was in danger, she tried to reach Timmy's bedroom upstairs. As she approached the stairs in the entrance hall she saw her husband coming toward her with his hands raised as though to assault her, whereupon she squeezed the gun, discharging a bullet which missed Moore but lodged in the wall. Moore fell mortally wounded at her feet.’

The alleged offense was committed on the same day that the order to show cause was served on the husband and victim, May 6, 1952.

Incidentally, it should be noted that Mrs. Betty Blanchard did not appear as a witness. As stated in respondent's brief, ‘The People's inability to present Betty Blanchard at the trial was accounted for, she being out of the State at the time of the attempted re-service on her of a subpoena upon a continuance of a trial date.’

Appellant's contentions on appeal relate to the insufficiency of the evidence, the introduction and exclusion of certain testimony and to certain instructions both given and refused.

There is substantial evidence that the deceased had abused the defendant for a year preceding the offense. This abuse was both by words and physical assaults. For example a police officer, a friend and neighbor, lent defendant a revolver to use if necessary in self-defense. The officer also had a woman peace officer stay with defendant for a few days in an effort to remedy the situation. That the relations between defendant and deceased were severely strained there can be no question. A review of the record reveals that appellant's contention as to the insufficiency of the evidence is not without merit. There were no eyewitnesses to the offense. Obviously the jury did not believe defendant's explanation as to the commission of the offense. The law on this subject is well settled and inasmuch as there is substantial evidence to support the verdict as a matter of law, the court is without power to disturb the judgment on such grounds.

With regard to the two instructions given by the court as requested by respondent and the two requested by defendant which were not given appellant argues that, ‘it is appellant's position, amply supported by the evidence, that decedent was the first aggressor and where the trial court, as it did in the instant case, instruct the jury from the viewpoint of and in a manner favorable to the prosecution, it became its duty to also instruct the jury from the viewpoint of and in a manner favorable to the appellant.’

In this connection, a reading of the instructions discloses that other instructions which were substantially equivalent to those requested by defendant and refused, were read to the jury and therefore the prejudice claimed by appellant could not have occurred.

Appellant contends that the exclusion of testimony of a physician offered by the defense was prejudicial. In this connection appellant argues that, ‘In support of her theory of self-defense she sought to establish by the testimony of one Harvey Billig, a physician and surgeon, that during the year 1950 her husband had placed her under his care and treatment; that he had diagnosed her ailment, found her in a very run down physical condition due to glandular disturbances which cause her to be emotionally unstable, and that he had reported this condition to her husband. An objection to this testimony and offer of proof was sustained by the trial Court’. The trial judge held, in effect, that such evidence was too remote. It is obvious from a review of the record that if such evidence had been received the outcome of the trial would have been the same. The contention is highly technical and it does not appear that, assuming that such ruling was error, it was prejudicial.

In a supplemental brief appellant contends that, ‘The court erred in admitting into evidence tape recordings and re-recordings of tape recordings of conversations had between appellant and her deceased husband.’ In support of this contention appellent relies on the recent case of People v. Stephens, 117 Cal.App.2d 653, 256 P.2d 1033, 1038.

The facts incident to the installation of the equipment in defendant's home are recited in respondent's brief as follows:

‘Between appellant and Holroyd the subject came up about getting a recording of Dr. Moore's abuse of her in their house. Her attorney had told her it would get her a ‘good separate maintenance’ if she could get a recording of some of the verbal abuse.

‘Appellant asked Holroyd if he could make a recording of herself and Dr. Moore. He did not know if it would be legal. She talked to her attorney who said it would be legal. Holroyd told her he would see if he could find someone to do it. She wanted him to do that.

‘About the recordings appellant wanted made Holroyd got in touch with Mr. Sawyer, a soundman police officer. Holroyd called appellant, told her Sawyer could do it; she said, ‘Fine’.

‘Elton E. Sawyer had had about nine years experience in ‘sound work’ as a police officer. He had been a City of Los Angeles police officer from December 1, 1943.

‘About August 18, 1951 Sawyer first met appellant at the Moore's house, 4106 Fulton Avenue, Sherman Oaks. Appellant related to him some of her financial or matrimonial problems. She wanted him to record conversation between her and Dr. Moore between 7:00 and 8:00 o'clock in the morning, to have on record the names her husband was calling her and how he was abusing her physically. Sawyer and his partner agreed to install the sound equipment for appellant. Sawyer was to install the sound equipment for appellant. Sawyer was to install one microphone under a refrigerator and another in appellant's bedroom. He used a tape recorder in his car alongside and about 35–40 feet from the house. He put the equipment in operation for two days between 7:00 and 8:00 o'clock in the morning. The recordings he got he delivered to appellant. In appellant's presence at the Moores' Sawyer spot-checked discs to show there was recording on the discs and then left them with appellant.’

The recordings, People's Exhibits 38 and 42, were played to the jury. Appellant argues that, ‘It is apparent from the record on appeal that in numerous instances the recordings were either inaudible or unintelligible, such instances being indicated by the use of asterisks (* * *) in the Reporter's Transcript of the recordings.’

In the Stephens case supra, the facts are somewhat different. In that case, ‘On one occasion, while the recordings were being played, a juror interrupted to inquire, ‘Did he say ‘stole’ or ‘sold’ the car?' to which the court replied: ‘You will have to get that from the record—I won't interpret’'. And, as pointed out by respondent, ‘The fact that the reporter did not hear and transcribe all that was on the recordings does not afford the inference in the face of the record in the instant case, that the jury did not hear and understand what was played from the recordings.’ Moreover, as pointed out by respondent, ‘at the trial the circumstances of the conversations between appellant and decedent as shown by the recordings were disclosed in evidence. These recordings were admitted into evidence without objection from the appellant, no motion was made to strike all or any part of the recordings nor was any objection raised that the recordings did not reflect the entire conversation that took place; nor was any objection made that the recordings or any part of them, were inaudible or unintelligible.’

On cross-examination of defendant the prosecuting attorney, referring to the ‘contents of the recording’, asked the following question:

‘Q. Very well. This is a foundation matter, if the Court please, during cross-examination.

‘As a matter of fact, this is what was said, and this was your demeanor, a true and fair representation of your demeanor and conduct, as well as a true representation of the demeanor and conduct of Dr. Moore.

‘Now, if the Court please, I am going to ask that the recordings be played and the witness listen so as I can further cross-examine her as to whether, according to the question I have just asked, she can answer ‘Yes' or ‘No’.'

The question was objected to on the grounds that there was no foundation, as defendant's counsel stated, ‘I feel we have a right to hear the recordings before they are played to ascertain whether or not they are subject to any objection.’ The objection was overruled. And, as recited in respondent's brief, ‘After the tape recording which is People's Exhibit No. 38 was played in Court, the appellant on cross-examination testified that she heard what was played in the courtroom, a recording of the transcription, People's Exhibit No. 38, and it was ‘* * * a fair transcription of what can be heard of what was done and said at that time’. She also testified that after the tape, she heard played in Court the record which is People's Exhibit No. 42 and that it was a true and fair recordation of the ‘amount you played’.'

From a review of the record relating to the evidence of the recordings, it does not appear that any prejudice resulted either as to the court's rulings or as to the substance of the evidence received.

After the record on appeal was lodged in this court, respondent obtained an order to augment the record by filing a supplemental transcript of the recordings made before the trial judge after the appeal was perfected. Appellant has made a motion to strike the supplemental transcript from the record. From the above testimony as given by the appellant, it is manifest that no prejudice resulted by reason of the augmentation of the record with the supplemental transcript.

Appellant's motion to strike the supplemental transcript is denied; and there being no prejudicial errors in the record, the judgment and order denying the motion for a new trial are affirmed.

I concur.

This case has been reviewed with no little concern. The theory of defendant's innocence, advanced and argued with sincerity and earnestness by her counsel, is impressive and persuasive.

No one was present when defendant shot and killed her husband. Prior to the tragedy he had inflicted upon her grievous mental and physical suffering. She had a gun in her hand when she admitted him into her house; but she had good reason to be in mortal fear of him.

He rushed through the rooms like one demented. He struck her. Then she fired the first shot. She missed. But by an irony of fate the bullet struck a door and ricocheted into the man's body, piercing his aorta. As he kept on coming toward her, she fired a second shot, and missed him again. Then he fell, dead, at her feet.

On the other hand, the theory of the People is that defendant did not act in necessary self-defense; that when she knew her husband was coming, she armed herself, with the purpose of ending their marital troubles once and for all; that he did not see the gun in her hand when he entered the house; that when he did see the lethal weapon he turned in flight from its deadly menace; that while in flight she fired the two shots at him, with the deliberate purpose and intent of killing him.

There is substantial support in the evidence for this theory.

So whatever inferences we might draw from the record are not controlling. We are bound by the laws of this state, which put the duty of resolving conflicting evidence upon the jury which hears the testimony, and upon the judge who hears the motion for a new trial. When there is conflicting evidence, and substantial support for the verdict of a jury, a reviewing court has no power to upset the judgment.

DORAN, Justice.

WHITE, P. J., concurs.