People v. Becker

WOOD (Parker), J. Defendant was accused of murder. Trial by jury was waived. She was adjudged guilty of murder in the first degree and was sentenced to life imprisonment (the sentence to run concurrently with a sentence she was then serving in the penitentiary). She appeals from the judgment, sentence, and order denying her motion for a new trial.

Her contention is that the evidence is insufficient to support the judgment; and that, even if the evidence is sufficient to support a conviction of murder, it is not sufficient to support the finding of murder in the first degree.

Defendant, formerly known as Eva Marie Keller, and Max E. Keller (the deceased) were husband and wife and they lived at 401 West Ramona Boulevard in Wilmar until they separated in 1944. Then he lived at that address and she lived in their mountain cabin at Crestline.

On January 24, 1947, about 8 a.m., a telephone repair man went to the home of Max Keller to test whether the receiver [210]was off the telephone hook. No one responded to his knocks at the front and back doors, and he did not see anyone on or near the premises, but he determined from a test made outside the house that the receiver was off the hook of an extension telephone in a building at the rear of the house and that the telephone service at that address was a one-party line. He testified that when the receiver is off the hook of the extension telephone in the rear building a person cannot telephone from the house. The next day, January 25th, about 9 a.m., another telephone repair man went to said address to restore the receiver to the hook. He knocked on the front and side doors of the house, and then (without going into the house or the building) he disconnected the extension telephone (which was in a workshop at the side of the garage) and thereby made the house telephone usable. A next door neighbor came out, and the telephone man explained what he was doing.

Mrs. Zinnen, who lived next door to said address, saw the telephone man at the Keller house on January 25th and she talked with him. She had last seen Mr. Keller on January 23d about 5:30 p.m., at which time he was in his kitchen shaving, and she was in the dining room of her home. On January 25th, after seeing the telephone man, she became suspicious, and then she and her mother walked around the Keller house to see if the doors or windows were open, but they did not find any of them open. She (Mrs. Zinnen) looked in the window of the workshop and noticed that the telephone receiver was off the hook. She then had a conversation with a neighbor, Mr. Ellsworth, who lived across the street, and he walked around the Keller house to see whether he could open any doors or windows, but he did not find that he could enter through any of them. Then, by using a stepladder and a pry bar, he raised the kitchen window, which is above the sink and about 6 feet above the driveway, and entered the house through that window. He went through various rooms and upon opening the door of the den he saw the body of Mr. Keller on the floor of the den in front of a closet door. Mr. Ellsworth then left the house by going through the kitchen window. He told Mrs. Zinnen what he had learned, and then he went home arid telephoned to the sheriff’s office.