Opinion
Cr. 5262
3-25-1955
The PEOPLE of the State of California, Plaintiff and Respondent, v. Mary PENNY, Defendant and Appellant.
D. Brandon Bernstein, Beverly Hills, for appellant. Edmund G. Brown, Atty. Gen., Norman H. Sokolow, Deputy Atty. Gen., for respondent.
The PEOPLE of the State of California, Plaintiff and Respondent,
v.
Mary PENNY, Defendant and Appellant.
March 25, 1955.
Rehearing Denied April 5, 1955.
Hearing Granted April 20, 1955.
D. Brandon Bernstein, Beverly Hills, for appellant.
Edmund G. Brown, Atty. Gen., Norman H. Sokolow, Deputy Atty. Gen., for respondent.
McCOMB, Justice.
From an order denying defendant's motion for a new trial, after a jury trial resulting in a verdict of guilty of manslaughter, defendant appeals. There is also an appeal from the order granting defendant probation.
Facts: On May 4, 1953, defendant was a face rejuvenator and had been one for seven years. The face rejuvenation consisted of removing wrinkles. Defendant would put an application on the face which formed a pack and removed the skin, and the wrinkles would be gone. She had licenses issued by the City License Division and held a city tax receipt for a professional occupation.
In October, 1952, Kay Stanley told defendant that she wanted her face rejuvenated and that she had seen the face of another woman whom defendant had treated. Mrs. Stanley had a very bad skin which had acne and quite a few lines. On the aforementioned date in May, 1953, pursuant to Mrs. Stanley's request, defendant mixed an ounce of distilled water, a heaping talbespoon of resorcin and 16 drops of phenol. She applied this solution to Mrs. Stanley's face, beginning with the cheeks, using an applicator with cotton on the end. She covered about a square inch at a time and then used a sterile gauze for absorption. She completed the upper portion of the face in about two hours and then took about a half hour to tape the face, using overlapping pieces of special tape over which she placed regular tape. The taping was completed about 1:30 p. m. and Mrs. Stanley had lunch and rested.
About 6:00 p. m. defendant began treating the lower half of Mrs. Stanley's face, using the same solution. It took between 45 minutes and one hour. After defendant had completed the application underneath the chin, Mrs. Stanley aked if she could sit up a while before the taping was commenced. This she did and defendant went to get her a glass of water. When defendant returned, Mrs. Stanley said she felt a little faint and then fainted. After Mrs. Stanley fainted, defendant called Dr. Wallace and left a message for him. About an hour and a half later the doctor arrived and found that Mrs. Stanley was dead.
Questions: First: Did the trial court err in instructing the jury as follows?
'Any licensed cosmetologist who applies to any human being a solution of phenol greater than ten per cent is guilty of a misdemeanor.
'This is an unlawful act not amounting to a felony. Business & Professions Code, Section 7415.'
'Every person who engages in, or attempts to engage in, the practice of cosmetology or any branch thereof without a license therefor issued by the State Board of Cosmetology or in an establishment other than one licensed by the State Board of Cosmetology is guilty of a misdemeanor.
'The art of cosmetology includes the beautifying of the face, neck, arms, bust or upper part of the human body, by the use of cosmetic preparations, antiseptics, tonics, lotions or creams.
'A violation of this law is an unlawful act not amounting to a felony.'
No. Defendant urges that the foregoing instructions are conflicting and there is no evidence that defendant was a cosmetologist, hence the first instruction quoted was not supported by the evidence. These contentions are devoid of merit for the reason that the evidence clearly showed that defendant was not a cosmetologist, but defendant's own testimony disclosed that she was engaging or attempting to engage in cosmetology with respect to Mrs. Stanley. She testified she was occupied in face rejuvenation, that is the removal of wrinkles; that this was done by putting an application on the face which removed the skin, and that this procedure made the face look younger and fresher and gave it 'a lovely complexion;' that the formula defendant used was procured from a 'beauty rejuvenation place;' that the solution she used contained phenol and resorcin.
Applying the above instructions to the foregoing evidence it is clear the jury might have concluded that the activity in which defendant was engaging required at least that she be a licensed cosmetologist.
The jury could have found also that defendant applied a solution of phenol greater than ten percent on the face of Mrs. Stanley. Such implied finding is supported by the testimony of Dr. Newbarr that in his opinion the solution placed upon Mrs. Stanley's face was in excess of ten percent phenol. Thus the application by defendant of a solution of phenol in excess of what even a licensed cosmetologist could legally apply would have a direct bearing on the issue of whether defendant acted without due caution and circumspection.
Defendant's stricture on the instructions that they were conflicting in that some of the jury could have voted for conviction because they believed defendant had no cosmetology license and was required to have one; and that other jurors could have voted for conviction because they believed defendant had a cosmetology license and used a solution of phenol greater than ten percent; and that still other jurors could have decided that defendant did not need a cosmetology license but was guilty because she used a solution greater than ten percent, is devoid of merit for the reason that the uncontradicted evidence disclosed that defendant was not a licensed cosmetologist. This uncontradicted evidence coupled with the instruction given the jury that an instruction was not to be taken as an opinion of the court as to what the facts are, and that if an instruction applied to a certain set of facts which the jury found did not exist, the jury should disregard such instruction, makes it obvious that defendant's contention is not well taken.
People v. Moore, 43 Cal.2d 517, 275 P.2d 485, relied on by defendant, is factually different from the instant case. In such case the Supreme Court found that the deceased came to the house of the defendant on the occasion of a fatal shooting in violation of the wishes of the defendant and of a court order; and that there was no support in the record for the portion of an instruction stating that the right of self-defense does not exist against a person who in threatening or attempting to threaten injury is acting lawfully. The facts in such case are not analogous to those here present.
Second: Did the trial court err in not of its own motion giving an instruction explaining the terms used in the following instruction given to the jury?
'Any person, who practices or attempts to practice, or who advertises or holds himself out as practicing, any system or mode of treating the sick or afflicted in this state, or who diagnoses, treats, operates for, or prescribes for any ailment, blemish, deformity, disease, disfigurement, disorder, injury or other mental or physical condition of any person, without at the time of so doing having a valid, unrevoked physician's and surgeon's certificate, drugless practitioner's certificate, or chiropodist certificate is guilty of a misdemeanor.
'A violation of this law is an unlawful act not amounting to a felony.'
No. Defendant contends that it was error for the court to fail to give to the jury of its own motion a further instruction as to what constituted a violation of the foregoing instruction relying upon People v. Burns, 88 Cal.App.2d 867, 873, 200 P.2d 134, wherein the appellate court held that in a prosecution under Penal Code, section 273d, the jury should have been instructed as to the meaning of 'traumatic condition.' Such decision is not applicable to the facts in the case at bar for the reason that in the quoted instruction there is no technical or unfamiliar term or terms such as 'traumatic.' It is settled that instructions defining an offense may be given in the language of the statute where no amplification is requested by defendant. (People v. Reed, 38 Cal.2d 423, 430, 240 P.2d 590.)
In the instant case no additional instructions were requested by defendant. Therefore the foregoing rule is applicable and in addition, the language in the statute is not expressed in technical terms, but by ordinary words which would be understood by the ordinary individual. Hence no further instruction was required. (People v. Knowles, 35 Cal.2d 175, 183, 217 P.2d 1.)
Third: Did the trial court err in admitting the opinion of Dr. Newbarr that the burns on Mrs. Stanley's face were caused by a solution containing phenol in excess of ten percent?
No. Defendant contends that there was no proper foundation laid for the admission of Dr. Newbarr's opinion that the solution applied to decedent's face contained more than ten percent phenol. This objection is devoid of merit.
Dr. Newbarr was examined at length on voir dire as to his qualifications and testified that there is no actual test to determine the amount of phenol applied to the skin by taking a specimen of the skin; that his opinion as to the percentage of phenol was based on the autopsy and on his experience which included the examination of many phenol burns, knowing the effect of different percentages of phenol and its reaction on the skin from reports of cases, having seen skin painted with a preparation such as camphophenique, containing about 4.75 percent phenol without any burn resulting. He further testified that he took into account the condition of Mrs. Stanley's face, its coagulated appearance, showing a deep burn and the rapidity with which the burn ensued; that in his experience he had seen many cases where phenol had run out of the corners of the mouth of a suicide.
Expert testimony is admissible where the conclusions to be drawn by the jury depend on the existence of facts which are not common knowledge and which are peculiarly within the knowledge of men whose experience or study enables them to speak with authority thereon, and also in cases where the conclusions to be drawn from the facts stated, as well as knowledge of the facts themselves, depend on scientific knowledge or skill not within the range of ordinary training or intelligence. In such cases not only the facts but the conclusions to which they lead may be testified to by an expert. (People v. Tucker, 88 Cal.App.2d 333, 339, 198 P.2d 941).
In the light of the foregoing rule a proper foundation having been laid for Dr. Newbarr's testimony it was proper to permit him to answer the question to which objection had been made.
Fourth: Did the trial court err in instructing the jury thus?
'I instruct you that the term or phrase 'due caution and circumspection' is to be construed by you as the equivalent of criminal negligence.'
'309. Definition of 'Due Caution and Circumspection.'
'Due caution and circumspection, as those words are used in the instruction just given, mean such caution and circumspection as are reasonably appropriate to avoid injury to one's self and others, under the conditions at hand as they would be viewed by an ordinarily reasonable person in the same situation as the person whose conduct is in question. To exercise due care and circumspection is to take those proper precautions which a person of ordinary prudence would use in the same circumstances.'
'309-A. 'Due Caution and Circumspection' a Relative Term. When there is a question whether or not a defendant conducted himself without due caution and circumspection, the jury must answer the question in the light of all the surrounding circumstances, for the term 'due caution and circumspection' is a relative term, and the amount of caution required under it will vary in accordance with the nature of acts being done, the surrounding circumstances, and the danger that reasonably should be apprehended.'
No. The foregoing instructions are consonant with the rule announced in People v. Pociask, 14 Cal.2d 679, 683, et seq., 96 P.2d 788. Defendant's contention that it was error not to instruct the jury that the negligence required was something more than ordinary civil negligence, and that the instruction does not meet the requirements of People v. Driggs, 111 Cal.App. 42, 295 P. 51, and People v. Hurley, 13 Cal.App.2d 208, 56 P.2d 978, was fully answered contrary to her contention by People v. Pociask, supra, 14 Cal.2d 684, 96 P.2d 791, where it is said:
"* * * That when a person is doing anything dangerous in itself, or has charge of anything dangerous in its use, and acts with reference thereto without taking those proper precautions which a person of ordinary prudence would have used under the circumstances and the death of another results therefrom his act or neglect is a criminal act against the person so killed even though his negligence does not amount to a wanton or reckless disregard of human safety or life. (Citing cases)' * * * Anything in the Driggs and Hurley cases inconsistent therewith must be deemed to be disapproved.'
Fifth: Was the evidence sufficient to sustain a conviction on the ground of lack of due caution and circumspection?
Yes. Bearing in mind the rule that the evidence on appeal is to be viewed in the light most favorable to the people, we find that defendant admitted that she knew phenol is a poison and can be absorbed through the skin; that resorcinol and phenol are dangerous to be left around; that their indiscriminate use can be dangerous; that she did not know whether a person with acne would react differently, and that she had never made inquiries of a doctor as to such matters; that she did not know of any chemical reactions that took place to the skin when her solution was applied; that she had never discussed what she put on people's faces with anybody; that in this state of knowledge she undertook to remove blemishes and pits from Mrs. Stanley's face, in order to leave it nice and smooth. She further testified that she was going to remove the wrinkles from Mrs. Stanley's face and as to the pits on her face, defendant considered that 'what goes, goes.'
She further admitted that she applied her solution to Mrs. Stanley's face and under her chin. The expert testimony disclosed that Mrs. Stanley died from phenol poisoning and from edema of the glottis due to the application of a mixture containing phenol to the face and neck.
From the foregoing evidence the jury could properly conclude that the solutions defendant put on Mrs. Stanley's face and neck resulted in her death because defendant did not use due caution and circumspection. This conclusion is further supported by the testimony of Dr. Newbarr that Mrs. Stanley had third degree burns on her face which in his opinion resulted from the application of a solution containing more than ten percent of phenol. (Cf. People v. Chavez, 77 Cal.App.2d 621, 628, 176 P.2d 92.)
Sixth: Was there substantial evidence to sustain a finding that the death resulted from the commission of a wrongful act not amounting to a felony?
Yes. The jury might well have concluded that defendant in applying a solution of phenol to Mrs. Stanley's face for the purpose of rejuvenating it was practicing cosmetology and thus violated the statute requiring such a person to obtain a license. Also the jury might well have found that the acts of defendant constituted a violation of the statute requiring one who practices or attempts to practice, or holds himself out as practicing any mode of treating the afflicted, or who treats for any blemish of any person, to be licensed.
Hence in placing the solution on Mrs. Stanley's face defendant was doing illegal acts. This apparently was the view of the trial judge who at the time of the motion for a new trial remarked that in his opinion defendant was doing what amounted to 'acid surgery.'
There is likewise no merit in defendant's contention that there were no witnesses who testified that the acts performed by defendant required such license. Under the evidence and the instructions the jury was warranted in concluding that defendant was acting in violation of the statutes.
Defendant's contention that the death of Mrs. Stanley was due to an allergy and not to the fact that defendant was practicing without a license is also untenable because the jury under the evidence could have found that defendant violated laws designed to prevent injury to others by requiring that those performing certain acts should first be licensed as a cosmetologist or under the Medical Practice Act. It is settled that one who violates laws designed to prevent injury to others is guilty of involuntary manslaughter if death is caused thereby. (People v. Mitchell, 27 Cal.2d 678, 683, 166 P.2d 10.)
Seventh: Was the verdict void for the reason that defendant was placed in jeopardy twice?
No. Defendant points out that the record shows that on April 1, 1954, the jury having been sworn, defendant and her counsel being present in court, the matter of the misconduct of a juror was taken up in chambers in the absence of defendant and 'the defendant's motion for a mistrial is granted.'
Thereafter proceedings were resumed in open court and the jury discharged. Defendant now contends for the first time on appeal that because the minutes do not affirmatively show her personal request for or consent to the mistrial, she was illegally tried the second time, having once been in jeopardy.
The rule is settled that a plea of double jeopardy or double punishment is waived when not entered in any stage of the proceedings before the trial court and cannot be raised for the first time on appeal. (People v. Phillips, 76 Cal.App.2d 515, 524, 173 P.2d 392; People v. Kelly, 132 Cal.App. 118, 122, 22 P.2d 526; In re Harron, 191 Cal. 457, 467, et seq., 217 P. 728.) Since defendant did not raise the plea in the trial court, the foregoing rule is here applicable and she may not successfully urge it on appeal.
The orders are affirmed.
MOORE, P. J., and FOX, J., concur. --------------- * Opinion vacated 285 P.2d 926. 1 The evidence is viewed in the light most favorable to the People (respondent) pursuant to the rule set forth in People v. Pianezzi, 42 Cal.App.2d 265, 269, 108 P.2d 732 (hearing denied by the Supreme Court).