People v. Owens

MARKS, J.

Defendant was charged with murder in the first degree. He was found guilty and sentenced to life imprisonment in the state penitentiary. His sole ground for a reversal of the judgment is based on the contention that the evidence is not sufficient to support the verdict and judgment in that there was not sufficient proof of premeditation and intent to justify a conviction of murder in the first degree. We are asked to reduce the offense to murder in the second degree.

Defendant and Penny May Smith, the deceased, had been living together in the relation of husband and wife without the formality of marriage. On January 13, 1938, Miss Smith rented room 49 on the third floor of the Pacific Hotel in San Diego. Ray Roberts and Ceola Roberts, friends of defendant and deceased, occupied room 23 on the second floor of the same hotel and immediately below room 49.

On the morning of January 13, 1938, defendant informed Mr. and Mrs. Roberts that deceased had been out all night and that he wanted to find her as he was planning to go to Los Angeles. Mrs. Roberts told him she was at the Pacific Hotel and asked him “not to beat her”. Defendant and Roberts went to room 49, where they saw deceased. They went back to room 23 and drank a small bottle of wine. Defendant was in room 49 on one other occasion that morning and went to it again shortly before 4 o’clock in the afternoon of that day. Mr. and Mrs. Roberts were in their room. The windows of both rooms were open.

Roberts described what he heard as follows:

“Q. And then he went back up to Room 49! A. Well, he shaken my hands, that he was leaving town. I told him goodby and later I heard his voice up over my room. Q. How much later! A. Oh, I will say about three or four minutes.

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Q. About three or four minutes later—and do you remember what the conversation was that you heard coming from the other room? A. Yes, sir. Q. What was it? A. ‘Come on and get your clothes on.’ Q. That was the first thing that you heard? A. That was the first thing that I heard, yes sir. . . . Q. That you heard—and she says, ‘No’, and then what did he say? A. Then he says—let’s see—he says, ‘Who are you talking to?’ And she says, ‘You’, and he says, ‘Come on and let’s go’, and she says, ‘I’m not going any place with you’, and he says, ‘Who are you talking to?’ and she says, ‘You’, and there was a scuffle. Q. Well, now is that all the conversation that you heard then? A. That is all. Q. Before you heard this scream? A. (continuing) that I remember that I heard. Q. Well, did you hear a conversation between Homer and your wife at that time? A. Well, she called up at the time of the scuffle. Q. What did she say? A. She says, ‘Homer’, and I forget the words, exactly the words that she said, but he talked calmly like everything was all right. ... Q. You heard no conversation of any kind between Homer and Penny May Smith between Homer’s conversation with your wife and the scream? A. No, just, a noise, scuffling noise. Q. You did hear some scuffling around ? A. Yes, sir. Q. Up in the room—Now how much time would you say passed during this conversation between Penny May Smith and the time of the scream, that is, how long was it after Plomer left your room until you heard the scream? A. It was just a short time, I couldn’t say the time. Q. Just a very few minutes ? A. Yes, sir. Q. And likewise it was just a few seconds after the scream and the other remarks until you heard the noise of someone going downstairs? A. Well, I guess it was about two or three minutes, something like that.”