People v. Bernalley

KAUFMAN, P. J.

Defendant appeals from a judgment of conviction rendered on a jury verdict finding him guilty of violating section 245 of the Penal Code [assault with a deadly weapon], and section 203 of the Penal Code [mayhem]. The arguments made on appeal are that: (1) the evidence does not support the judgment, and (2) the trial court erred in admitting into evidence a declaration of the victim and in its instructions to the jury relating to the declaration.

The record reveals the following: The victim, Teddy Emmerson, first met the defendant, Sam Bernalley, on Saturday, March 7, 1959. The victim entered a café, and saw his wife, Marilyn, talking to the defendant. Mrs. Emmerson addressed the defendant as “Daddy” and introduced him as her stepfather. The victim thereafter saw the defendant several times with Mrs. Emmerson. On Sunday, March 8, the victim and his wife had dinner with the defendant at his apartment. Thereafter, Mrs. Emmerson informed her husband that they were going to stay with the defendant until they got back on their feet. On the afternoon of Monday, March 9, about 6 p. m., the three met in Fish’s bar and the defendant gave Emmerson the keys to the apartment and left saying “You kids go up. I will be back—in later.” The Emmersons went to the apartment about 9 p. m., had dinner,

[328]

played a record and watched television. After 11 p. m., Mrs. Emmerson left the apartment to obtain some toothache medicine and then went to work. Emmerson told her to take the keys and gave her $2.00.

After his wife left, Mr. Emmerson went to sleep on the couch. During the night or early morning, he was awakened by someone who hit him in the eyes. He felt something run down his face and could not- see. He asked “What happened? What did you do to my eyes? What happened? What happened? What did you do to my eyes? Get me a doctor. Call me a doctor or get me to a hospital. ’ ’ The defendant cursed and said “I been knocking on the door. You lock me out.” The defendant then further cursed Emmerson and finally led him outside to the curb and left him standing there. Emmerson testified he shouted for help and could not be sure but estimated he stood there about one half hour and got cold and chilled.

Police Officer Gai testified that about 2:55 a. m. on March 10, he received a call directing him to the scene of the crime. He arrived a little before 3 a. m. and observed the victim holding a bloody handkerchief to his eyes. The officer told his partner to call for an ambulance and several times asked the victim what happened. Emmerson, who was distraught and incoherent, replied something like “Sam cut my eyes.” Emmerson fainted and within a few minutes, the ambulance arrived and took him to the hospital. Emmerson was in the hospital until the end of April. The doctor testified that both of Mr. Emmerson’s eyes had been lacerated by a sharp instrument and that he had lost any useful vision in both eyes although he could distinguish light and dark. The defendant was arrested the evening of March 10 and a knife was found in his possession.