People v. Avila

' SHINN, P. J. Patricia Avila was accused by information of assault upon her daughter Deborah with intent to commit murder and in a separate count of attempted murder of Deborah. She was acquitted upon the latter count and on Count I was found guilty of assault by means of force likely to produce great bodily injury. Her motion for a new trial was denied and probation was granted upon condition that she spend one year in the county jail. She appeals from the judgment and the order.

The points on appeal are (1) the offense of which appellant was convicted is one that is not necessarily included within the offense of assault with intent to commit murder, (2) the child Deborah was shown to be incompetent as a witness and it was error to permit her to testify and (3) “The trial court erred prejudicially in resolving the overwhelming conflicts in testimony against your appellant.”

If by the third point it is intended to urge insufficiency of the evidence to justify the verdict the discussion in appellant’s brief is lamentably inadequate to serve that purpose. The brief does not contain even a pretense of a statement of the evidence. If this were not a criminal case we would not give the point serious consideration. But being a criminal case in which a mother has been adjudged guilty of a serious crime against her daughter, we would not be justified in disposing of the point without giving consideration to the entire evidence and a statement of our reasons for our conclusion.

The court could not have doubted that the events which gave rise to the accusation were the following: appellant had had a falling out with a male companion named Cato, referred to as “Mitts”; in a fit of despondency she adminis[702]tered to herself a considerable quantity of barbiturate pills and to her daughter Deborah a substantial number of the same. The child had been put to bed and fell asleep, waking up in General Hospital; appellant lay down on the floor in the child’s bedroom. This was some time during the evening, the precise time being undetermined. At about 11:30 p. m., appellant fell seriously ill; she observed the appearance of Deborah and endeavored unsuccessfully to awaken her; she was limp and apparently unconscious. Appellant went across a walkway to an adjoining apartment, roused a friend, Eve Adams, who at appellant’s request called the police. Appellant and Deborah were taken to the receiving hospital where the contents of appellant’s stomach were removed. Appellant was either unconscious or merely unresponsive. Deborah was unconscious. Both were taken to the County General Hospital. Appellant received treatment and was released and taken to jail within a few hours. It was discovered that Deborah could not breathe voluntarily and she was immediately placed in a respirator and shortly thereafter in an iron lung. The contents of her stomach were removed. Just before she was placed in the iron lung she stopped breathing altogether and turned blue. Under artificial breathing she gradually recovered. Her condition was extremely critical. Her urine was examined and the result was “strongly positive for barbiturates,” meaning that it contained a large amount of barbiturate.