Instrument of torture
By Mara Bovsun - NYDailyNews.com
March 25, 2007
For millions of youngsters during the Eisenhower
era, learning to play the accordion was just another happy childhood
rite of passage.
But for one little girl, Katherine (Kay) Frances
Erickson, the instrument turned out to be the last sour note of her
short, sad life.
The girl was only 10 on the morning of Oct. 12,
1950, when police in Long Beach, Calif., received a frantic call. It
was her music teacher, Violet John Berling, 32, screaming that the
child was not breathing.
Berling said she had been asleep when, around 6
a.m., she was awakened by the child crying, "Violet, take the
accordion off me."
But this was no ordinary nightmare. The child had
been strapped into a straight-backed chair, her hands and feet bound,
and an accordion strap wrapped around her shoulders. She had died when
she regurgitated food and choked on it, unable to move in the
makeshift torture rack.
As to how the child got strapped into the chair,
Berling said Kay had done it herself. Lashing herself to furniture,
Berling said, was just one of the child's weird habits.
Another was self-mutilation, which explained the
assortment of scars and bruises, old and new, that the coroner found
on her body.
Berling insisted that Kay inflicted these wounds in
a frenzy of masochism. Hurting herself and magically making it all
better was the only way she could convince nonbelievers the she had
special powers, Berling told detectives.
While agreeing that some of the wounds could have
been self-inflicted, the coroner said that some hand other than the
victim's had been responsible for most of them. He also said that the
girl had died several hours before Berling called for help.
Police also found several bloodstained accordion
straps in the studio.
The death was ruled a homicide. Berling was
arrested and charged with murder.
Berling told detectives that Kay had been one of
her many pupils, but that the girl had come to live with her when her
family fell on hard times during the summer.
Harry Erickson, the girl's father, was a Navy
electrician, a career that kept him away from home. The mother,
Beatrice Erickson, had decided to take classes to become a nurse's
aide, in hopes of bettering the family's situation.
Berling told Beatrice Erickson that Kay had real
talent and that it would be a shame if the budding virtuoso didn't
live up to her potential.
The only way to do this would be to practice night
and day. Berling said she'd be happy to keep the child at her studio
to give her the attention and training she needed.
So Kay went to live with her teacher, severing
nearly all ties with her parents. Berling told the Ericksons that it
was better if they stayed away, so the girl would have nothing to
distract her from her instrument. Every time the parents showed up,
the teacher said, Kay played poorly, or "lost her touch" on the
accordion for several days.
"When Kay Frances lost that 'touch,' she would cry
and feel badly," Beatrice Erickson told a reporter. "So I tried not to
disturb her residence with Miss Berling."
The mother didn't even attend her child's recitals.
"I didn't go to the programs she was in because
Miss John [Berling's professional name] told me parents were not
invited and the programs were private."
The parents had no idea that their daughter was
spending much of her time tied to a chair, sometimes gagged, often
with an accordion strapped to her lap.
Erickson insisted that Kay was a normal child. But
further questioning would reveal that the mom had an odd idea of what
constituted normal. Long before she introduced her daughter to the
accordion, Erickson took the girl to faith healing services and to
churches that practiced "cosmic ray" healing, in which heavenly cures
were conveyed through copper wires on the ceilings.
By the time Kay played her first note, the girl was
possessed, prone to tantrums and trances, or so Berling said.
At least twice, Berling recalled, Kay stopped
midchord, saying the spirit of her dead grandfather had ordered her to
do so. The only way to keep her from mutilating herself was to watch
her constantly, or tie her up.
Pain feels good?
"I was out of the studio about 20 minutes," Berling
told the court during her trial, which started Jan. 3, 1951, and would
drag on to the end of April, mainly because Berling kept fainting and
had to be carried from the courtroom. "When I came back she had the
flatiron in her hand. She had burned herself on the right arm and on
the thigh. I was shocked. I asked her why she did such a thing. She
just laughed and said, 'Because it felt so good.'"
Prosecutors did their best to make Berling out to
be a "witch woman," even introducing a photo of the teacher in a
"weird topknot," and suggesting that it was indicative of more than
just a bad hair day. They called on other pupils, who took the stand,
and told of abuses they had seen. One 9-year-old girl said she saw
Berling kick Kay, hit her with a ruler or bind her face with elastic
Berling's other students said that they had often
seen Kay tied to the straight-backed chair or the filing cabinets.
Berling said it was for the girl's own good because Kay's behavior was
so erratic and dangerous.
Former pupils showed up and testified that the
teacher had hurt them as well. Another 9-year-old told the court
"sometimes I think I'd like to see her die in the gas chamber."
The week before Kay's death, Berling said, the
child had been sleepwalking, lapsing in and out of trances, and
talking about death.
Berling said she called Erickson that week to tell
her that her daughter was out of control. Erickson offered a simple
explanation. She said a family friend "was performing black magic on
It took the jury nine days of stormy deliberation
to reach the verdict: Guilty.
The judge sentenced her to life in prison.
A year later, Berling's lawyers used a bizarre
argument to win her a retrial. Because she had fainted so often during
the trial, she was "mentally absent," they said. In his decision, the
judge wrote: "The conviction cannot be approved because of the
violation of the defendant's fundamental right to be present
physically and mentally and fully conscious during all stages of the
This time justice was swift. In May 1953, after a
one-day retrial without a jury, the judge upheld her conviction and
sent her back to prison.
In 1951, the 17-week murder
trial of Violet John Berling for the torture-slaying of 10-year-old
Kay Frances Erickson dominated the news with allegations of sexual
abuse, faith healing, and accordian playing.
Berling was a 32-year-old
daughter of a Vaudeville performer who, with her 52-year-old lover,
made her living giving accordian lessons in a tiny studio apartment in
Long Beach. In July 1950 she took custody of Kay Frances to immerse
the girl in the practice of playing the accordian.
By October, the girl was dead.
Kay’s mother, Beatrice Erickson,
was studying to become a nurse’s aid and Kay was taking music lessons
from Berling for $4 per week. According to Erickson, Berling promised
that if Kay lived with her for a year, she could become a famous
Erickson said that several times
during the spring and early summer of 1950 Berling asked if Kay
couldn’t come to live with her. Kay was struggling in the fourth grade
and Erickson told Berling that she thought her daughter was spending
too much time with music and dancing lessons which distracted her from
“She said (Kay) could become a
good accordian player and be a star, a professional, and earn a pretty
good amount of money,” Erickson said. “I told her we would take her
out of school and take her down to the studio every day.”
Over the summer Erickson began
nursing school and the offer by Berling to watch Kay became attractive
to the Erickson family, which was struggling financially.
From that point, the stories of
Erickson and Berling differ greatly.
Erickson would testify at
Berling’s trial that Kay was perhaps a bit high-strung, but was
otherwise a normal, healthy, happy 10-year-old girl who enjoyed music,
dancing, and gymnastics.
Berling, however, painted a
picture of a seriously mentally ill youngster who enjoyed
self-mutilation, excessive masturbation, and heard voices. Kay
Frances, according to Berling, hated her family and thought about
killing them by turning on the gas while her parents slept.
Kay’s mother told about how
Berling isolated Kay from her family, who by modern standards appear
quite gullible. At one point, Berling told Erickson that she was not
welcome at Kay’s recitals because “they were private affairs.”
“She asked that we not visit
because Kay Frances did not practice as well on the accordian after
seeing us,” Erickson testified.
For her part, Berling denied
making such statements and during her two-week testimony and
cross-examination while on trial, she claimed that Kay and her mother
were emotionally distant.
“The child’s mother and Kay
Frances never embraced, never called each other endearing terms,”
Berling testified. “After one visit to her home July 29, Kay Frances
said ‘I hate them. I never want to go back home.’”
There is no doubt that Berling
was cruel to Kay Frances.
She admitted “whipping” the girl
when she misbehaved, allowing her boyfriend, Miguel Verdugo, to lash
the girl’s arms and legs to a filing cabinet, and forcing her to sit
behind a large stuffed chair while other students took lessons. She
claimed Kay’s mother suggested the whippings. Kay was tied to the
filing cabinet for 90 minutes while Verdugo and Berling went out to
One 9-year-old witness, who
played in an accordian quartet with Kay, said she saw a bandage tied
all over Kay’s face except the eyes and nose at least three or four
times. Once when the children had been taken to a movie, Kay Frances’
eyes were covered with several scarves which were left on during the
entire picture. On other occasions Berling kicked Kay Frances for not
getting the accordion right and had told the other children to kick
Kay, the girl testified.
Kay’s three other quartet
colleagues each testified that Berling had forced Kay to masturbate in
front of them and threatened all of them with punishment if they told
Berling vehemently denied “ever
laying a hand on the child.”
Berling told the court that she
frequently tied Kay Frances to a straight-backed chair when she
practiced the accordian while also restraining her left arm to ensure
it maintained the correct position for accordian playing.
She claimed that accordian
players frequently tie themselves to chairs while practicing to help
relieve the pressure of holding the heavy instrument.
Note: The prosecution never
challenged this assertion, but I have not been able to find any
instance where an accordian player recommends this. Perhaps a reader
with knowledge of the instrument can enlighten us.
Berling was arrested in
mid-October 1950 after she made a frantic call to a doctor that Kay
Frances was desperately ill after “abusing herself.” By the time the
doctor arrived at the one-room flat Berling and Kay shared, the little
girl was dead. Her body was a mess of burns, cuts, and bruises. Kay
was emaciated and twenty pounds below the normal weight for a
10-year-old girl. It was obvious to anyone who looked at her that she
had been abused.
Berling suggested that the
little girl committed suicide by stabbing herself.
The Los Angeles coroner’s office
conducted an autopsy and determined that Kay had died by choking on
her vomit and had been dead for at least five hours before Berling
claimed to have found her unconscious and tied to a chair.
The coroner went on to opine
that Kay would not have aspirated her vomit if she had been conscious
or even merely sleeping.
The coroner ruled that none of
the wounds were self-inflicted; some were so located as to make
self-infliction unlikely. Some of the wounds were apparently of recent
origin, others were reopened older wounds. There were numerous slicing
wounds from some sharp instrument such as a razor blade, some
apparently inflicted only a short time prior to the girl’s death.
Certain burning wounds had been produced only a few minutes or a few
hours before death.
A triangular area of abrasion
appeared in Kay’s pubic region; a vaginal tear was present, and both
her vagina and anus were found to be dilated and open. The examiner
opined that these conditions indicated a frequent stretching of the
parts over some period of time, and the introduction of some object
“of considerable resistance.”
At a coroner’s inquest, Berling
denied ever hurting Kay Frances beyond basic corporal punishment. The
teacher said it was not her practice to use physical discipline on her
students and testified that Kay’s behavior made “whippings” necessary.
Kay Frances came from a family
with a strong belief in faith healing and out-of-the-mainstream
religious practices. Beatrice Erickson said she attended churches that
used spirit trumpets and divining rods in their religious practices.
Berling testified that these
beliefs had a negative effect on Kay. After a man whom Berling said
sexually abused Kay died, Kay Frances started putting a rolled
newspaper up to her ear “to listen to the voices.”
“She would stare into space;
when spoken to she would not answer,” Berling testified. “I would
shake her and she would come to. She played as if she was blind and
kept her eyes half masted. She did this quite frequently.”
Rather than consult with a
physician about the girl’s strange behavior — or the police about
Kay’s molestation — Berling simply slapped the girl to break the
“I would shake her…slap her on
the face…nudge her with my foot and then her eyes would open wide and
she would say ‘the voices told me to play blind.’”
Berling’s lengthy trial in 1951
was marked by her numerous fainting spells that prompted numerous
delays and forced the case to go on without the defendant in the
courtroom. Toward the end of the trial, Berling appeared in court
wearing an eye patch because of an infection in her left eye.
The trial record shows 47
separate references to Berling’s mental and physical condition between
March 8 and April 12, 1951, including 20 recesses granted for this
reason, extending from a few minutes to five days. For example, on
March 8, the trial court excused the jury, having observed that
Berling appeared ill with “a severe tremor and she is sitting now at
the counsel table with her head down and her eyes closed part of the
time.” To the court’s inquiry “She gave me no answer, which doesn’t
show an alertness that is necessary for a defendant in her position.”
After the four-month trial, the
jury debated for eight days before finding Berling guilty of first
degree murder. The jurors said later that there was never any doubt of
her guilt and that all but 30 minutes of the deliberations centered on
the degree of guilty.
Berling’s mother had to be taken
from the courtroom when the judge attempted to read the verdict,
shouting “No, no!” over and over. Berling herself collapsed in tears
in the courtroom.
She was subsequently sentenced
to life in prison.
Of course she appealed, using a
novel argument: “A major part of the trial was conducted in the
absence of appellant,” who, although physically present in the
courtroom, was often unconscious or only semiconscious, and “mentally
absent during much of the trial,” her appellate brief read.
Under California law at the
time, a defendant had to be present at every stage of a felony
prosecution, specifically, the accused person had to be both
physically and mentally present. “Mere physical presence without
mental realization of what was going on would obviously be of no value
to the accused,” the California Court of Appeals wrote in Berling’s
case. “A defendant in such condition would be unable to confer with or
assist counsel, unable to testify, and without ability to understand
the nature of the accusation or the mechanics or consequences of the
The court ordered a new trial,
at which Berling opted to be tried before a judge. She was convicted
of second-degree murder and sentenced to life with a minimum seven
year term. However, at a hearing before the California Parole Board,
the board recommended that she serve at least 50 years.
115 Cal. App. 2d 255
THE PEOPLE, Respondent, v. VIOLET JOHN BERLING,
Albert C. S. Ramsey and Milton Emlein for
Edmund G. Brown, Attorney General, Norman H.
Sokolow, Deputy Attorney General, S. Ernest Roll, District Attorney,
and Thomas W. Cochran, Deputy District Attorney, for Respondent.
The appellant was charged with the murder of Kay
Frances Erickson, a 10- year-old girl, who died at Long Beach on
October 12, 1950. Appellant was an accordion teacher; the deceased
child was studying under appellant's tutelage, and at the time in
question was staying at appellant's studio. The trial commenced
January 3, 1951, and ended on April 20, 1951. After eight days'
deliberation a jury returned a verdict of murder in the first degree
with recommendation of life imprisonment. A motion for new trial was
argued and denied.
It appears from the record that Kay Frances was
born on April 22, 1940, at San Pedro, entered kindergarten there, and
at the age of five took dancing and piano lessons for eight or nine
months. The family moved to Long Beach in July, 1947, where the girl
resumed dancing lessons. In May, 1950, Mrs. Erickson took Kay Frances
out of school because of a nervous stomach condition and because the
teacher had advised that the girl was not going to pass. School
teachers testified that Kay Frances was apparently a normal child in
school, but somewhat immature, and had an I.Q. of 88 which was
somewhat below normal. The school record noted that the child was
"Artistic in singing and dancing."
About June 28, 1948, Mrs. Erickson conferred with
Miguel Verdugo, an accordion teacher, and was referred to the
appellant Violet Berling, a teacher of beginning students, with whom
the mother arranged weekly lessons for Kay Frances at appellant's
studio in Long Beach. Miguel Verdugo occupied a home in Long Beach,
but shared a studio with appellant, Verdugo using the studio on
Mondays. Appellant took Verdugo's phone calls and arranged
appointments, while Verdugo paid bills connected with the studio.
At first Mrs. Erickson accompanied Kay Frances to
appellant's studio and waited until the accordion lesson was
completed; later the daughter was left there, sometimes all day
[115 Cal. App. 2d 259] until as late as 10:30 p. m. Much of the
time Mr. Erickson was unemployed and Mrs. Erickson worked to support
the family. After March, 1949, the girl continued the accordion
lessons without payment because of the parents' inability to pay. Some
other students were also given free lessons by appellant.
A children's accordion quartette was formed,
consisting of Kay Frances, and three other children, nine, eight and
six years old, respectively. This quartette came to the studio to
practice several times a week after school hours and spent the balance
of the day and evening there. Sometimes one or more of the children
stayed all night with appellant at the studio, all sleeping on the
studio couch. Appellant bought the children gifts of clothing and
toys, including gold wrist watches for Kay Frances and another pupil.
The children were washed and generally taken care of, and were taken
individually or as a group to places of amusement, usually accompanied
by Mr. Verdugo and the appellant. On some occasions the children were
taken out to eat; at other times food was brought to the studio.
According to defendant's testimony, Mrs. Erickson
had expressed dissatisfaction with Mr. Erickson, stating that a
separation was imminent, and had asked appellant to take care of Kay
Frances day and night for a period of time. On July 17, 1950,
appellant found that the girl had been left at the studio where
Verdugo was teaching on that day. Thereafter Kay Frances lived with
appellant at the studio until death occurred on October 12, 1950. The
appellant had an apartment at 32 Orange Street in Long Beach, but
preferred living at the studio because of the inconvenience of
transportation and the existence of a telephone at the studio.
Appellant stated that the mother only visited the daughter once and
that there was no indication of affection between the two.
On the morning of October 12, 1950, in answer to a
telephone call, the fire department ambulance went to appellant's
studio at about 6:30-6:40 a. m. The ambulance attendant found the body
of Kay Frances Erickson lying on a studio couch. Although apparently
dead the body was removed to the ambulance and a resuscitator applied
with negative results. Upon arrival at the Seaside Hospital the girl
was pronounced dead. Later that morning the body was taken to the Los
Angeles County morgue where an autopsy was performed by Dr. Victor
Cefalu, Assistant Chief Autopsy Surgeon. The [115 Cal. App. 2d 260]
body was covered with multiple cuts, burns, abrasions, and contusions.
The cause of death was given as "aspiration of
food," defined by Dr. Cefalu to mean "the drawing down of food into
the air passages due to multiple injuries." Under circumstances
similar to those found in the instant case, such aspiration of food
might result from two causes, namely a state of unconsciousness
resulting from injuries, or from some obstruction to normal
ejaculation of vomit such as a gag tied around the mouth.
In the opinion of the examiner, none of the wounds
were self-inflicted; some were so located as to make self-infliction
unlikely. Some of the wounds were apparently of recent origin; others
were superimposed upon older wounds. There were numerous slicing
wounds from some sharp instrument such as a razor blade, some
apparently inflicted only a short time prior to the girl's death.
Certain burning wounds had been produced only a few minutes or a few
hours before death.
A triangular area of abrasion appeared in the pubic
region; a vaginal tear was present, and both vagina and anus were
found to be dilated and open. It was the examiner's opinion that these
conditions indicated a frequent stretching of the parts over some
period of time, and the introduction of some object "of considerable
The girl's head had been subjected to a series of
injuries which could well have been caused by blows; some of such
injuries were of recent origin, while others may have been received a
few weeks before death. Marks and indentations upon wrists and ankle
were compatible with a condition caused by tying straps tightly around
those areas. Likewise, a state of lividity found in feet and legs was
consistent with the theory that the child died while strapped in a
The body appeared somewhat emaciated, which
condition could have been the result of a continued or intermittent
series of torturing injuries, and of insufficient feeding. It was the
examiner's opinion that the wounds found would have been sufficient to
cause unconsciousness, and taken in the aggregate would have
ultimately resulted in the girl's death. Although it was not possible
to fix the exact hour, Kay Frances' death was estimated to have
occurred at about 1 a. m. on October 12, 1950.
The appellant contended that the injuries must have
been self-inflicted; that Kay Frances had a habit of inflicting
similar injuries and of masturbation; that Miss Berling had [115
Cal. App. 2d 261] never "laid a hand on the child in any way," and
had not fastened the girl to a chair. Appellant's account is that Kay
Frances appeared to be all right at the time of retiring on the
evening before the death, and at that time was not strapped in a
chair. Miss Berling claims to have fallen asleep in a chair after
writing some music; that about 6 a. m. noise from the adjoining room
wakened appellant where the little girl was discovered strapped to a
chair, but conscious and able to speak. There was a white shirt
wrapped around the girl's head in bandana fashion with the arms of the
shirt tied about the neck. Another shirt was on backward with a couple
of buttons fastened in the back.
When found by appellant, Kay's head was hanging
down as though asleep, and "her eyes appeared as though she were in a
trance." After removing the straps, appellant claims to have placed
the girl on the couch, and telephoned Mr. Verdugo that Kay Frances was
either in a trance or dying. Mr. Verdugo arrived shortly thereafter;
appellant telephoned Dr. Hanson, and pending arrival of the ambulance,
attempted to administer artificial respiration. It was appellant's
opinion that the girl was alive when wheeled out of the studio on a
stretcher, and that the aspiration of food may have occurred when the
ambulance attendants attempted artificial respiration.
As hereinbefore indicated, there were no
eyewitnesses to the crime and no direct evidence of appellant's guilt.
The record discloses, however, various circumstances leading to a
legitimate inference of guilt, and a tenable hypothesis in support of
the conviction. In this connection it may be noted that appellant was
alone with Kay Frances in the locked studio all of the night preceding
the girl's death; Miss Berling's contention that the wounds were
self-inflicted is refuted by medical testimony as before mentioned; it
is improbable that the victim could have strapped herself in the
chair. Certain witnesses testified to having previously seen Miss
Berling strap the girl to chairs and a filing cabinet, and commit
other acts towards the child, such circumstances leading to an
inference of guilt rather than innocence. It cannot be said, as
appellant's brief avers, that "the inference of guilt drawn from the
evidence was wholly unwarranted."
Contradicting appellant's protestations of
affection for Kay Frances and denials of the use of force or violence,
is the testimony of Lora Carpenter, aged 9 years, who had taken
accordion lessons from appellant for two and one- half [115 Cal.
App. 2d 262] years. The witness testified that two or three days
before the death, appellant had tied Kay Frances in a standing
position to a filing cabinet, the girl being left thus tied while Mr.
Verdugo took witness and appellant out to dinner, a period of about
one and one-half hours. Kay had been tied to the filing cabinet at
least two or three times; the witness had also seen appellant strap
Kay in a chair several times, and on one occasion defendant had left
Kay on the floor for several hours with hands tied.
Lora had seen a bandage tied all over Kay's face
except the eyes and nose at least three or four times; on one occasion
when the children had been taken to a movie, Kay Frances' eyes were
covered with several scarves which were left on during the entire
picture. On other occasions appellant had kicked Kay Frances for not
getting the accordion right and had told the other children to kick
Kay. Appellant had also been seen to hit Kay's hands with a ruler many
times, and to slap Kay quite hard across the face.
On one occasion when Lora, Jimmie and JoAnn, all
accordion pupils, were at the studio, appellant directed Kay Frances
to "pull her pants down," stand about two feet in front of the
children, and "play with herself," and was told to "keep showing us
what she was doing" until appellant told Kay to stop. Violet had Kay
continue the performance until the other children looked away. The
appellant "told us kids if we told our parents that something dreadful
would happen to us." At that time Lora saw bruises and cuts on Kay
Frances' legs up to the knees.
The witness had seen other cuts and bruises on
Kay's head and body, and had seen appellant tie bandages around Kay's
head. "Whenever she would punish Kay, before she would do so, she
would say something dreadful would happen to us if we told." Sometimes
cuts on the girl's legs would be bleeding and blood would be dripping
on the floor. To cover up black and blue marks on Kay's head and face,
appellant put on "cream cake makeup." The witness had also seen Mr.
Verdugo spank Kay Frances with a strap. Lora had seen appellant hit
JoAnn, another pupil, on the face, while the children were practicing.
Somewhat similar, if less detailed, is the
testimony of another pupil, Mary Jo Furey, aged 14, who had seen
appellant slap Kay Frances' face, and to say "I am not scared to beat
you in front of her," meaning Mary Jo. Kay was [115 Cal. App. 2d
263] required to stare at Mary Jo and was kicked in the shin quite
hard to enforce the order.
Thelma Watts, who took lessons from Mr. Verdugo,
saw Kay Frances in September, 1950, with blackened eyes, described as
purplish, puffy, and barely open. Appellant's explanation was that
"the little girl believed she could heal herself and that was the
reason she had done--blacked her eyes, made her eyes in the condition
they were." One of Kay's fingers was bandaged and two or three other
fingers were black and blue. Miss Berling had stated that Kay had
"bumped her head against the wall and on the accordion in self abuse,"
and in respect to the finger injuries, "she said she had chewed them."
Waitresses at the Panama Cafe testified that
appellant and Verdugo often brought Kay Frances there; that the little
girl was quiet and did not look happy; that bruises on face and legs
were explained as having been self- inflicted. One waitress could not
recall any occasion when a meal was ordered for Kay although sometimes
the child would get a cracker or a little soup from one of the others.
On one occasion, in answer to the waitress' inquiry as to the
condition of Kay's eyes, the appellant said, "she is not telling
anything about how she got her eyes, she isn't talking."
Although, as appellants points out, there was
evidence of gifts being made to Kay Frances and other pupils, etc.,
the general purport of the testimony is that the child had at times
been mistreated by appellant, who had instilled fear in the children's
minds with threats that "something dreadful would happen to us" if
parents were told what was going on at the studio.
What may be denominated as appellant's main
contention is that "A major part of the trial was conducted in the
absence of appellant," who, although physically present in the
courtroom, was often unconscious or only semiconscious, and "mentally
absent during much of the trial." Appellant's affidavit seeking a new
trial recites that "her trial began January 3, 1951 ...; she recalls
the selection of the jury, the opening statement by Mr. Ted Sten,
co-counsel for the People, and many of the witnesses who testified
against her ..."
Miss Berling "recalled wire-playing apparatus set
up on or about March 8, 1951; that thereafter she became unconscious
and recalls only occasional happenings in the court room ... until
April 28, 1951, when she heard a woman [115 Cal. App. 2d 264]
scream, and thereafter heard the judge read something to the effect
that the defendant was guilty of murder in the first degree, and heard
him ask the jury if that was their verdict, at which time she again
lapsed into unconsciousness ... that she has no recollection of
conferences with her attorney between March 8 and April 13; that she
had desired to have Miguel Verdugo called as a witness on her behalf
and was not aware of the fact that he had not been called; that she
was unaware of the fact that she had fainted 11 times in the court
room, twice on the witness stand," etc.
That during the latter part of the trial Miss
Berling was unwell is full borne out by the record. According to
appellant's count, there are 47 separate references to appellant's
mental and physical condition between March 8 and April 12, 1951,
including many (appellant's brief says 20) recesses granted for this
reason, extending from a few minutes to five days. For example, on
March 8, the trial court excused the jury, having observed that
appellant appeared ill with "a severe tremor and she is sitting now at
the counsel table with her head down and her eyes closed part of the
time." To the court's inquiry "She gave me no answer, which doesn't
show an alertness that is necessary for a defendant in her position."
Although appellant "stated she could carry on," and
did not wish to have a doctor called, the court did not "agree with
her"; a recess was taken until the afternoon session, and a physician
was called. According to the doctor, appellant "appeared listless and
apathetic," although then conscious. The patient complained of
headaches, weakness and dizziness.
It was the physician's opinion that "her present
condition is functional, that it is an emotional and nervous upset
from strain. ... Well, I believe she is capable of understanding a
wire recording or understanding questions and answers. I think that
with an emotional disturbance such as she has, some inattention to her
surroundings is apt to result." The witness further stated that
whether the trial might proceed without detriment to appellant's
interests, "is largely up to her."
Upon appellant's statement that the trial might go
on, "but I might become dizzy," the court said: "We can't tell when
you are going to become dizzy or when you are in such a condition that
you don't know what is going on. Will you try, if you feel something
like that coming on, to let Mr. [115 Cal. App. 2d 265] Ramsey
or the Court know of that condition so that we can stop any
proceedings until you are not dizzy and are fully conscious?" to which
appellant responded, "Yes." Miss Berling stated that "Sometimes the
room keeps going round."
On March 14, appellant was unnerved and shaking;
the judge again stated, "If you feel faint, or if you are not
conscious of what is going on, Miss Berling, tell me or your counsel."
However, as noted in appellant's brief, the court did not indicate
"How appellant would inform the Court of her unconscious state, if she
were unconscious!" Later that same day, while on the witness stand,
the accused asked for and was given a recess.
Again, on March 15, the court's attention was
called to the fact that Miss Berling appeared tired. Later that day
the court got no response to an inquiry as to appellant's condition;
finally appellant admitted being upset, dizzy, and not able to think
clearly. Then, although the court stated "She is ill and we will have
to go over until tomorrow morning because of her illness,"
nevertheless the proceedings continued with stipulations and
corrections of testimony in the daily record and in the preliminary
transcript. Certain testimony was stricken from the record and the
jury admonished to disregard it. A recess was then taken because of
On March 20th, appellant's answers to questions
became inaudible, and the condition of dizziness having returned, the
trial was recessed until the following day. On March 28th, during
cross-examination, appellant, as Judge Miller stated, had "the
appearance of being very tired and of not being in a position to look
after your interests very well ... Now you are closing your eyes. Your
are practically dropped over as though you were in a poor physical and
mental state." However, appellant indicated the trial could proceed;
later the district attorney called attention to appellant's tired and
worn appearance; a short recess was taken, and appellant again claimed
to be able to proceed. A few minutes later appellant asked for a
recess and fainted.
The following morning appellant thought the trial
might safely proceed. The court, however, observed that "She has the
appearance of being not clear in her mental behavior. She is just not
alert, to me, plus the other things we have in the record. I don't
think she is in condition to go ahead this morning" and mentioned that
the day before appellant had "seemed to lose partial consciousness at
least." The jail [115 Cal. App. 2d 266] physician, Dr. Crahan,
reported that appellant was not physically or mentally ill but was
suffering emotionally due to strain; that "she was subject to fainting
spells." Appellant complained of feeling dizzy, but felt able to go
ahead; the district attorney resumed cross-examination whereupon
appellant fainted and fell from the witness stand.
Court was adjourned until the following Monday,
April 2d, at which time a woman deputy sheriff was requested to sit
beside appellant. Later a recess became necessary because of the
appellant's faintness. On April 3d although dizzy and "woozy," Miss
Berling resumed the witness stand but about 11 a.m. fainted again and
fell out of the witness box. Appellant's condition appeared to be
worsening rather than improving, causing the judge to remark: "I can't
have the jury sitting here watching a defendant fall to the floor day
after day in a fainting condition and in a condition that shows she
gives every impression she is not able to look after her interests."
In the afternoon the defendant was still weak and dizzy and a recess
taken until the next day, appellant being then returned to the
hospital section of the jail.
On April 4th, appellant was "somewhat dizzy, your
Honor, but I can go on the stand." Mrs. Baust, deputy sheriff,
reported that appellant's condition was "Very poor, ... worse than
yesterday morning. On the way in she seemed to be on the verge of
consciousness and that is all. ... I let her sleep on the way down.
When she got out she would stagger and I would catch her. She pitches
forward and then regains consciousness the minute I catch her. It is
touch and go." Counsel for both sides agreed that the trial could not
go on and adjournment was taken until April 9th.
On the adjourned date, cross-examination of
appellant was resumed but some of the questions had to be repeated
three times. Appellant again became weak and faint whereupon court was
recessed until the next day. Cross-examination was again resumed
although appellant was somewhat dizzy; in the middle of a statement by
the district attorney appellant started to faint and a recess was
declared. The next day appellant resumed the stand but swayed back and
forth, was having tremors, and finally started to faint but "said she
wanted to keep on going."
The record discloses that similar episodes occurred
on ensuing days, and on April 12th, appellant again fainted. After a
brief recess, the trial court stated: "I have been informed by the
Deputy Sheriff, Mrs. Baust, that the defendant did [115 Cal. App.
2d 267] not lose consciousness during this last partial fainting
and loss of strength to go ahead, but that she was in a state of
collapse." Notwithstanding the above condition appellant still
expressed a desire to proceed with the trial, and reexamination was
continued. However, because of Miss Berling's condition, the
reexamination was concluded by the making of stipulations as to
matters to which the witness would have testified.
Frequent remarks by the trial judge to the effect
that "the defendant gives evidence of not being in a condition to
proceed," cannot but indicate that the court entertained serious
doubts as to whether appellant was conscious, semiconscious, or
unconscious during various phases of the trial. It is well to note
that in the present case there appears to be no charge that Miss
Berling was malingering. Indeed, appellant's condition was readily
observable, not only calling forth comment from the trial judge but
also from the deputy district attorney who openly questioned the
advisability of continuing with cross-examination. That the situation
was of an especially serious nature seems to have been recognized by
everyone connected with the case.
 Article I, section 13, of the California
Constitution gives a defendant the right to appear and defend in
person, and section 1043 of the Penal Code provides that "If the
prosecution be for a felony, the defendant must be present at the
trial." (Italics added.) The rule is familiar and fundamental, "that
the prisoner, in case of a felony, must be present during the whole of
his trial." (Italics added), quoting from People v. Kohler, 5 Cal. 72.
The same case states: "In favor of life, the strictest rule which has
any sound reason to sustain it, will not be relaxed."
 The only reasonable interpretation of the above
requirement that a defendant be present at every stage of a felony
prosecution is that the accused person must be both physically and
mentally present. Mere physical presence without mental realization of
what was going on would obviously be of no value to the accused. A
defendant in such condition would be unable to confer with or assist
counsel, unable to testify, and without ability to understand the
nature of the accusation or the mechanics or consequences of the
trial. An interpretation of the rule as requiring only physical
presence would lead to such an absurdity as the purported trial of an
imbecile or an insane person without the least understanding of what
was taking place in the courtroom. Only [115 Cal. App. 2d 268]
in the most unenlightened age could such a so-called trial be
Founded as it is on reason and natural justice, it
is hardly necessary to cite authority for the principle just
mentioned. The question has apparently not received the direct
attention of courts of this state, and rarely elsewhere, perhaps
because of its obvious nature.  However, in an English case, Rex v.
Lee Kun (1916), 1 K.B. 337, 9 British Ruling Cases 1121--C.C.A. cited
in 14 American Jurisprudence 899, it is held that "The presence of the
accused means that he must be not merely physically in attendance, but
also capable of understanding the nature of the proceedings."
 Appellant has cited Reid v. State, 138 Tex.
Crim. 34, [133 S.W.2d 979], where although a defendant had suffered an
epileptic fit and a physician had stated it would be an hour or more
before defendant would be conscious, the trial court denied
continuance and ordered the trial to proceed through the jury
challenges. In that case the reviewing court said: "If a defendant in
a felony case should be bodily present in the court room but in an
unconscious condition, it cannot avail him his right to be present in
the fullest sense, for it certainly cannot be said that he has the
opportunity ... to assist his counsel in the conduct of his case. It
would be a mere sham to say that he was confronted with his accusers
if he were not able mentally to realize their presence."
That the principle just mentioned would in a proper
case find adoption by the California courts is indicated by the
following quotation from People v. Singh, 78 Cal.App. 476, 481 [248 P.
981]: "Appellant further complains of the refusal of the court to
grant a motion for continuance made during the trial on the ground
that defendant was ill and could not be consulted by his counsel. The
record on appeal, however, satisfactorily shows that on such
suggestion being made by counsel for defendant, an adjournment of
court was had until the following day, at which time, so far as
appearances as disclosed by the transcript are concerned, defendant
had recovered from his indisposition and was able to advise with his
 If, in the instant case, it could be safely
said that the trial only proceeded during such times as Miss Berling
was fully conscious of what was going on, all would be well.
Unfortunately, the record seems to disclose that such was not the
case. The trial court repeatedly remarked that the defendant gave the
impression of not being "able to look after [115 Cal. App. 2d 269]
her interests," and not "being able to proceed." Many statements made
during the trial clearly indicate that it was impossible to know
whether the defendant was entirely conscious or able to proceed with
the trial despite Miss Berling's willingness to go on. "When your
voice drops as it does and your eyes partially close and open slowly,
the appearance is that you are not in a condition to observe what is
going on." There was "a serious question" in the trial court's mind as
to how cross-examination could be conducted "under these
Notwithstanding these legitimate doubts as to
whether the defendant was mentally present at all stages of the
proceeding, the trial continued and was finally submitted to the jury.
The affidavit offered in support of the motion for a new trial averred
that Miss Berling possessed only a fragmentary and hazy recollection
of what took place during the latter part of the trial. Only when the
trial was finished did appellant realize that a most important
witness, Mr. Verdugo, had not been called to testify. The testimony of
this witness who was intimately familiar with affairs at the studio,
might easily have changed the entire aspect of the case by proving or
disproving contentions put forward by the appellant and the district
That the trial court fully appreciated the
seriousness of the situation is apparent from the many adjournments
and statements hereinbefore mentioned. Although it is evident that the
trial judge made a sincere effort to fathom the defendant's condition,
it is also apparent that neither the judge, nor the physicians, nor
the appellant, were able to solve the problem. Although it became
increasingly apparent that Miss Berling was in no fit condition to be
tried, the inquisition went on.
The real reason for continuing with the trial of
the case is shown by the trial court's statement made at the argument
of appellant's motion for a new trial: "it was our attempt to get this
case ended so that we could have a conclusion of it one way or the
other, and that's what we did." In other words, anxiety to finish the
long and difficult trial was given priority over the more important
question of the defendant's mental condition. The trial court's
statement at the hearing of the motion for a new trial, that the trial
was always stopped when the defendant was not in a proper condition to
go on, is not reassuring in view of the record. [115 Cal. App. 2d
As appellant's brief points out, "that the court
was unable to assess appellant's condition is illustrated by the fact
that he not only allowed, but ordered, proceedings to continue to the
point where, on numerous occasions, she collapsed into unconsciousness
while on the witness stand, and several times fell from the witness
box." The exact periods and extent of Miss Berling's unconsciousness
and semiconsciousness are unknown. In dealing with such a defendant
who had fainted some 11 times during the trial; who was so frequently
"dizzy," "groggy," "woozy," inattentive to surroundings, "unable to
think clearly," unable to advise with counsel, only semiconscious if
conscious at all at various periods, the only safe procedure,
obviously, was to entirely stop the trial. This was not done. Any idea
that such an error was harmless cannot be entertained.
 Respondent's assertion that "since the evidence
warrants the verdict, and since there was no prejudice, the conviction
should be affirmed," is untenable. The existence of substantial
evidence in support of the verdict does not cure the fundamental error
of forcing the accused to stand trial while not in the full enjoyment
of consciousness and mental power. Whether guilty or innocent the same
rule must be given application. Constitutional and statutory
provisions in reference to the conduct of a felony prosecution were
designed to secure to every accused person a fair trial, not merely to
those who are innocent. Full and strict observance of such rules is
the primary responsibility of every tribunal assaying to try such a
 Nor will it do to dispose of the matter by
saying that it was within the trial court's discretion to go ahead
with the trial, as was done in the instant case. No court possesses
any discretion whatsoever in reference to giving or withholding the
fundamental rights and privileges of one accused of murder.
 In reference to the other points relied on by
appellant as justifying reversal, it need only be said that the record
fails to show prejudicial error. One of these contentions relates to
the admission of evidence concerning the defendant's background,
personal and family history, and general activities not directly
germane to the issues. Some of this evidence was of no particular
importance one way or the other; some of the testimony was
subsequently stricken and the jury admonished to disregard it. [115
Cal. App. 2d 271]
 Likewise, the admission of an anonymous letter
accusing Kay Frances' mother of partial responsibility for the murder,
and using derogatory epithets in reference to the mother and
appellant, to "show the possible state of mind" of the mother, was
doubtless an error, but can hardly be deemed of prejudicial nature.
 The same may be said in reference to the
reading to the jury of the district attorney's transcript of a wire
recording of an interview with the appellant. The recording itself was
played to the jury and the appellant had the opportunity to correct
any erroneous rendering. Other items of evidence specified by
appellant were likewise without material prejudice to the rights of
 Appellant's brief also complains of conduct
and statements made by the deputy district attorney during trial of
the case. Most of these incidents occurred in the heat of animated
discussion, and appear to have had no prejudicial effect. The jury was
duly cautioned that the arguments of counsel are not to be considered
 Complaint is made that "The Court erred in
permitting Volumes 34 and 35 of the daily transcript to be taken to
the jury room." These volumes concern testimony about wire recordings,
and Deputy District Attorney Sten's version thereof, and include
certain argument and discussion in chambers concerning admissibility
of evidence. Section 1137 of the Penal Code prohibits a jury from
taking "depositions" into the jury room. Appellant also cites section
1181 prohibiting reception of evidence out of court, in reference to
off-the-record discussions in chambers. Respondent's brief notes that
no objection to the above procedure was made by the defendant, and in
any event, no prejudice can be said to have resulted.
 Another assignment of error relates to the
giving and refusing of instructions relating to the effect of filing
the information, defining proximate cause of death, presumption of
innocence, etc. No prejudice to defendant's rights can have resulted
where the instructions, taken as an entirety, constitute a correct
statement of the law, as was the situation in the instant case.
[14, 15] Misconduct of jurors is alleged in that
"Juror No. 3 mingled with a hostile crowd" after the trial had
recessed for the day; that the same juror had "answered a material
voir dire question falsely" when "asked if she had studied
psychology," the juror's answer being that "she had [115 Cal. App.
2d 272] not, except for the usual courses in college." In denying
defendant's motion for a new trial, the judge stated that the only
showing was that the juror had "stood down on the street or in the
alleyway down here, or somewhere else close by," and had looked on
while appellant was being taken from the building. The further
statement of the trial judge, "I can't find that that conduct is
anything at all that would entitle the defendant to a new trial,"
correctly sums up the matter.
 The final contention is that "The Court erred
in admitting certain psychiatric testimony" to the effect that the
expert, Dr. Dwankowski, had never known of a case of a sane child who
had not reached puberty, "mutilating herself masochistically" in the
areas and to the extent shown by post-mortem photographs, etc. Since
it was the appellant's claim that the child's injuries were
self-inflicted, and the jury was instructed, "You are not bound to
accept the opinion of an expert as conclusive, but you should give it
the weight to which you shall find it to be entitled. You may
disregard any such opinion, if you find it to be unreasonable," no
prejudicial error is apparent in respect to this matter.
As hereinbefore indicated, however, the conviction
cannot be approved because of the violation of defendant's fundamental
right to be physically and mentally present and fully conscious during
all stages of the trial.
The judgment and order denying motion for new
trial, are reversed, and the cause remanded for a new trial.
White, P. J., concurred.
I have checked the record against the able
statement of the facts by my associate, Mr. Justice Doran. I agree
with him that it must be concluded that the defendant on numerous
occasions did not, and could not have known what was going on at her
trial. It is a fair assumption that for a part at least of her trial
defendant's mental and physical condition precluded that participation
in the defense of every person charged with crime which our law
requires and guarantees. I concur.