People v. Kausen

PLUMMER, J.

—The defendant was convicted in the county of Humboldt of the crime of assault with intent to commit murder. From the order denying the defendant’s motion for a new trial, and the judgment entered upon such conviction, the defendant appeals.

Three informations were filed against the defendant charging him with the crime of assault with intent to commit murder upon three different persons. These informations were consolidated and one trial was had upon all three. The defendant was convicted of making an assault with intent to commit murder upon the person of Aileen Kausen, and this conviction is the only one involved upon this appeal.

The record shows that on or about the twenty-fifth day of December, 1932, the defendant entered the room occupied by Aileen Kausen, between the hours of 9 and 10 P. M., and severely beat Mrs. Kausen with a flashlight then in his possession. It appears from the testimony that the defendant and Aileen Kausen were husband and wife, but had been separated for some time, and that Mrs. Kausen had obtained an interlocutory decree of divorce. At the time of the assault Mrs. Kausen was living in an apartment situate in

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the rear of a house occupied by her parents, Mr. and Mrs. Davis, in the city of Eureka. Prior to entering the room occupied by Mrs. Kausen, the record shows that the defendant, who had been living on a farm situate several miles from Eureka, drove to Eureka on the afternoon of December 25th, and after arriving there, continued to drive about the streets of Eureka in the neighborhood of the Davis home, and after being satisfied that Mr. Davis was away from home, parked his car a block or two distant from the Davis residence, proceeded to the rear of the residence, removed his shoes and entered the apartment of Mrs. Kausen. The apartment was entered without knocking and without any noise or disturbance being made by the defendant. At the time of the entry of the apartment, Mrs. Kausen was lying in bed. A noise of some sort arousing her, she made an exclamation, and upon discovering who was present, told the defendant to leave. The defendant claims he entered the apartment for a peaceful purpose, to wit, to induce Mrs. Kausen to give up her intention of securing a divorce and return to his home. The testimony, however, shows that immediately after being requested to leave, the defendant began beating Mrs. Kausen over the head with a heavy metallic flashlight. This beating continued with considerable intensity until in the struggle Mrs. Kausen was out of the bed and down upon the floor, at which time there is evidence that the defendant attempted to tie a piece of cloth around the neck of Mrs. Kausen. At about this juncture, Mr. Davis having returned to his residence, Mr. and Mrs. Davis came into the room for the purpose of protecting Mrs. Kausen. Following their entry, both Mr. and Mrs. Davis suffered a severe beating at the hands of the defendant. There is testimony to the effect that in this beating not only the flashlight but also a club was used. There is also testimony to the effect that at the time the defendant was beating Mrs. Kausen he said to her, “I’ll kill you” (using some profane language which we omit). The testimony of Mrs. Kausen is further to the effect that she was dazed by the beating, and at one time was partly unconscious. Dr. Flemming, who visited the premises for the purpose of rendering medical aid shortly after the assault, described the place as looking like a slaughter-house (photographs of Mrs. Kausen showing how severely she had been beaten).