People v. La Vers

The appellant Jack La Yers and a companion named Joe Teresi were indicted jointly by the grand jury of Santa Clara County for the murder of Herbert McAuley, a deputy sheriff, and upon trial were found guilty of murder in the second degree. From the judgment of conviction La Yers has appealed.

The circumstances leading up to the homicide as shown by the evidence adduced on the part of the prosecution were as follows: On the night of November 11, 1931, one Fred Hopkins was transporting 200 gallons of alcohol from Oakland to Los Angeles in a Packard coupe. He was accompanied by a man named Edwards. They stopped temporarily at a gasoline service station in San Leandro, Alameda County, and Edwards went to the lavatory. During his absence La Yers, Teresi and a man named Kelly drove up in a Chevrolet sedan. They had followed the Packard from Oakland. Teresi alighted, went over to the Packard, where Hopkins was seated at the wheel, and pointing a pistol at him said with an oath: “Get out of there ... or I’ll plug you.” Hopkins complied, and was then ordered by Teresi to enter the Chevrolet; whereupon La Yers got in the Packard and drove away swiftly toward San Jose. Teresi then jumped in the Chevrolet with Hopkins and Kelly, and followed. After proceeding down the highway some distance both automobiles were brought to a stop, and after some conversation between La Yers, Teresi and Kelly, Hopkins was ordered to get back in the Packard. Teresi got in also. Kelly then drove away alone with the Chevrolet, and La Yers and Teresi proceeded on toward San Jose in the Packard with Hopkins sitting between them. Hopkins asked where they were going and La Yers replied: “We’re going south.” Hopkins said: “No, you can’t go south, you

' At the trial La Vers and Teresi claimed that the “hijacking” of the Packard at San Leandro was a prearranged affair with Hopkins; that after leaving San Leandro they proceeded south to dispose of the alcohol and that Hopkins was to receive a portion of the proceeds; that they did not

As one of the grounds for reversal appellant contends that it was error for the trial court to allow testimony to be introduced as to what occurred at the service station in Alameda County. There is no merit in the point. It is doubtless the general rule that upon trial for one crime, evidence to show a distinct crime is inadmissible; but such rule is subject to the well-established exception that where, as here, the commission of such other crime has a logical bearing upon the element of motive for the crime charged, evidence of the commission of such other crime is admissible. (People v. Argentos, 156 Cal. 720 [ 106 Pac. 65 .) In the present case the evidence is sufficient to establish beyond question that appellant and Teresi fully realized that the crimes they had committed in Alameda County would subject them to severe punishment, and.that consequently, as declared by Teresi, they were ready, without hesitation, to take life before they would suffer themselves to be arrested. (People v. Wheaton, 64 Cal. App. 58 [ 220 Pac. 451 ].) And the mere fact that the admission of the evidence relating to such other crimes may have operated to their prejudice, did not serve as legal grounds for its exclusion since it was relevant to the material issue of motive. (People v. Argentos, supra.)

In answer to a preliminary question asked by the prosecution as to why he and McAuley went to Milpitas that night, Saporito testified that they were instructed to do so by the deputy sheriff in charge of the office at night, the

Appellant contends also that under the facts established by the prosecution he was guilty of nothing more than conspiracy because admittedly he did not actually fire the shot that killed McAuley. The contention is frivolous. As already shown the evidence proves that Teresi killed Mc-Auley while Teresi was engaged in a criminal enterprise with appellant, and it has long since been declared the law of this state that where two or more persons jointly engaged in an expedition of crime, and as here, are prepared to kill any police' officers or others who may interefere with their plans, all are equally guilty of any crime that is committed as the natural and probable consequence of such enterprise, whether one of them personally commits the act or whether its commission was the act of any one or more of the associates in carrying out the common purpose. (People v. Bringhurst, 192 Cal. 748 [ 221 Pac. 897 ]; People v. Wheaton, supra; People v. Kauffman, 152 Cal. 331 [ 92 Pac. 861 ]; People v. Woods, 147 Cal. 265 [ 81 Pac. 652 , 109 Am. St. Rep. 151 ]; People v. Lawrence, 143 Cal. 148 [ 76 Pac. 893 , 68 L. R. A. 193 ]; People v. Vasquez, 49 Cal. 560 .)

Nor was there any abuse of discretion on the part of the court in permitting the prosecution to recall appellant for further cross-examination after the defense had rested its case. It was appellant’s constitutional right, of course, to refrain from testifying at all in the case; but having waived such right by testifying as a witness in his own behalf, he was, like any other witness, subject to cross-examination; and he has failed to point out wherein his rights were at all prejudiced by the mere fact that after having rested his case he was recalled to answer a few additional questions

Appellant further complains of the refusal of the trial court to give some eleven instructions proposed by the defense. Two of them related to the crime of manslaughter, based on the theory of “a sudden quarrel or heat of passion”. The others purported to deal with the law of self-defense. Nowhere in the record on appeal, however, is the court’s charge to the jury set out; and consequently for aught we know the jury may have been instructed on all matters to which appellant’s proposed instructions related; and upon that ground alone we might properly hold that no error has been shown. (People v. Bourke, 66 Cal. 455 [ 6 Pac. 89 ].) However, aside from the defective state of the record described, it is evident that so far as the killing of McAuley is concerned, the elements of manslaughter and self-defense were nowhere involved in the case, for the reason that Teresi, for whose acts appellant too was held criminally responsible, made no claim at any time that he shot McAuley upon a sudden quarrel or heat of passion, or in self-defense. He positively denied having shot him at all; in fact, he said that he was not even armed. The instructions upon those two subjects were therefore properly refused.

After reviewing the entire record it is our conclusion that if the verdict in this case has resulted in any miscarriage of justice it is because the jury failed to find Teresi and appellant guilty of a higher degree of murder.

The judgment is affirmed.

Tyler, P. J., and Cashin, J., concurred.