Forty five year old plumber Marvin Tuthill took a twenty five months to get to his assigned seat at 11:03 AM on Friday January 28, 1949 at San Quentin's Gas Chamber Seat B. Marvin did not last long after the drop of the eight potassium cyanide eggs dropped in to the distilled water and sulphur acid pot under his seat. He had no last words and was dead at 11:33 becoming the 609th legally executed Californian.
Marvin James Tuthill is confined in the state prison at San Quentin under sentence of death entered pursuant to the verdict of a jury which found him guilty of the first degree murder of Mrs. Charlotte Beverly. The judgment of conviction was affirmed on December 9, 1947.
Marvin contends that the delay in discovering the facts comprising his assertedly new defense is "excusable on account of defendant's imprisonment, his lack of funds, friends and an attorney from the date of the alleged crime [January 1, 1947] and his imprisonment until 27 days after said date, and because of [his court-appointed] ... attorneys' lack of means and time to procure a thorough investigation as to material facts and evidence," and because ever since the night of the killing defendant has "suffered a complete lapse of memory ... of the events that occurred during two hours either side of the moment of the homicide."
On December 21, 1946, Marvin and Mrs. Beverly, who had been living together as man and wife, separated. Marvin moved from the auto court cabin where they had lived to another cabin at a near-by court. Charlotte continued to reside in the cabin where she had lived with Marvin. She told Marvin that she planned to go to Boston shortly after Christmas.
Charlotte and a Mrs. Beavers spent the evening of December 31 in the Knotty Pine Inn, across a highway from the auto court where Charlotte lived. On the afternoon of the 31st Marvin had stopped work at 4:30, drawn his pay, and had several drinks of intoxicating beverages. At 7:30 PM he entered the bar of the Knotty Pine Inn, where Mrs. Beverly and Mrs. Beavers were sitting, and asked Mrs. Beverly if he might see her alone. She refused and Marvin left the bar. Thereafter he consumed a considerable quantity of intoxicating liquor. Marvin testified that twice during the course of the evening he asked Charlotte if he might speak with her alone and she refused. He told her that he wished to see her alone in order to give her $100. He further testified that he remembered nothing after about midnight until he was awakened in his own cabin by the police at about 4 AM on January 1, 1947.
At about 2 AM on January 1, Mrs. Beverly and Mrs. Beavers, accompanied by one George Pickell, left the Knotty Pine and walked to the cabin of deceased. Pickell left the two women at the cabin. The women entered the cabin and found the light inside it burning. Marvin lay asleep on the bed. Charolotte shook him and asked him why he was there. Marvin sat up, revealing a rifle on which he had been lying. (This rifle belonged to Charlotte's son, had often been used by Marvin when he was living with Charlotte and was usually kept hanging on the wall of the cabin, where defendant himself had placed it.) Marvin lifted the gun.
Charlotte, who had a pretty high temper and said, "You are not going to shoot me with that gun." She and Mrs. Beavers then left the cabin. Mrs. Beavers pleaded with Marvin to leave the vicinity. Charlotte stepped back into the doorway of the cabin. According to the testimony of Mrs. Beavers, "I heard a gun fire" and Charlotte fell with a thud. Mrs. Beavers ran toward the Knotty Pine and "I got about to the highway I think, and I looked back and the lights in Charlotte's cabin were off."
Another witness, one Payne, testified that shortly after 2 AM, as he walked away from the Knotty Pine Inn, he heard a shot, turned, and saw Mrs. Beavers running at about the center of the highway. Mrs. Beverly was killed by a single shot which entered her head "approximately 2 inches above and forward of the upper edge of the right ear, and proceeded downward." The bullet, therefore, could not have been shot while Charlotte stood in the doorway squarely facing Marvin and while he was on or near the bed to the left of the doorway, as described by Mrs. Beavers.
Marvin argues that the sound which Mrs. Beavers heard when she saw Charlotte in the cabin doorway was not a shot. He testified that the shot was fired later, as Mrs. Beavers reached the highway; and that it was the sound of such shot which caused her to turn and see that the light in the cabin was out. As will hereinafter appear, this theory is an important part of defendant's "new defense."
Persons summoned by Mrs. Beavers came at once from the Knotty Pine Inn to the cabin of Charlotte. The cabin was dark. One Mrs. McLearn testified that she called to Charlotte and no one answered. She called Marvin and asked that he turn the light on. Marvin replied that he could not. He did turn on a light outside the cabin, which was controlled by a wall switch immediately adjacent to the switch which controlled the light inside the cabin.
Various persons entered the cabin and found that the light inside could not be controlled by the wall switch because the bulb had been loosened in the socket. Whether the bulb was so loosened by Marvin or Charlotte is unknown. After the light was put on Marvin partially lifted the harlotte's body from the floor, said, "See, there is nothing wrong," and let her body fall. He also said, "Oh, she is all right."
Marvin then left the cabin, carrying the rifle. Two men from the Knotty Pine took the rifle from him. Marvin offered no resistance. He went to his own cabin, undressed and was asleep when the police found him at about 4 AM. About half an hour after the police awakened him, Marvin complained to an officer that he had "a pretty bad pain over one ear." He asked the officer if he (the officer) had struck him; the officer replied that he had not; and Marvin said, "Somebody along the way has sure given me a nasty clip."
Marvin presented one new evidentiary fact, to wit, that at about 12:30 AM on January 1, 1947, during the period of his "blackout," he had an altercation with one Joseph Hildreth. According to Hildreth, at that time he and Mrs. Beverly were sitting in a booth at the Knotty Pine Inn. Hildreth "put my arm around her. Thereupon Marvin Tuthill came up to the booth ... and he made a threatening gesture at me, though he did not hit me. Thereupon I jumped up and took a swing at him, though I certainly did not hit him very hard or hurt him. In the scuffle that followed someone grabbed my arm, and someone else grabbed Marvin and shoved him out of the front door. I could see Marvin outside looking in through the front window a moment later; then I saw no more of him.
Fifteen or thirty minutes later I left the Knotty Pine, walked around ...looking for my dog, and ... stood for some minutes just outside of cabin 1 which was rented by Mrs. Beverly. ... It never then entered my head, nor until I later heard of Mrs. Beverly's death, that Marvin was at that moment inside of cabin 1, possibly watching me and angry over the scuffle we had, and possibly thinking I was out looking for him to carry on the fight. It was then between 1 and 2 AM."
According to Donald McLearn, who was present at the time of the altercation, "Marvin took a swing at Joe. Joe jumped up and started to swing at Marvin," but neither "swing" took effect and the two were separated. That the further new fact as to the head injury, if in truth it occurred as related by Hildreth in this proceeding, would have been material at the trial cannot be persuasively disputed. The evidence supporting the jury's determination of the degree of the crime and, presumptively, their selection of the death penalty in preference to life imprisonment, was legally sufficient, as we held on the appeal but cannot be said to be overwhelming. The possible importance to this court of substantial evidence of a head injury to defendant as affecting the balancing of the scales when the appeal was before us is indicated by the fact that in our opinion we twice commented upon the lack of such evidence.
"The record contains no evidence of any head injury at the time of the killing. When Marvin was arrested in his own room some hours after the shooting, he complained of a throbbing pain or splitting headache over his right ear. He asked the officer if he had hit him and the officer replied in the negative. That he may have suffered from a headache is not unlikely in view of the events of the night." Again the record contains no evidence of any head injury at the time of the killing."
That was the end of the appeals process for Marvin. Nobody bought in to his story and his lawyers were not so hot.