People v. McAuliffe

Defendant was charged with the murder of his uncle, John Thomas MeAuliffe. He was tried by a jury which found he was guilty of first degree murder and fixed the penalty as life imprisonment. Defendant moved for a new trial and for reduction of the degree of the offense in accord with section 1181, subdivision 6, of the Penal Code. The court reduced the degree of the offense to second degree murder and denied the motion for a new trial. Defendant appeals from the judgment and the order denying his motion for a new trial. The People appeal from the order reducing the degree of the offense to second degree murder.

Defendants’ Appeal

Defendant first claims the evidence is insufficient to support the finding that he was guilty of second degree murder, and that as a matter of law the homicide was justifiable: it was committed in self-defense.

The principal characters were John Thomas “Jack” MeAuliffe, the deceased; defendant Richard Gilbert MeAuliffe; John Charles MeAuliffe, defendant’s brother; Virginia MeAuliffe, wife of the deceased; and Susan MeAuliffe, daughter of Virginia.

On August 8, 1956 defendant and his brother John drove from San Diego to Cayucos in San Luis Obispo County in John’s pickup truck to visit with their uncle, Jack, at the latter’s ranch during deer season. Defendant lived in El Cajon near San Diego. During the days following, they assisted Jack around the ranch and hunted with him. Their relations were amicable.

On August 13 defendant and Virginia went to San Luis Obispo. On the return trip they stopped at several bars, con

The next morning, August 14, 1956, Jack left early to go to Minetti’s ranch to help with the harvesting. Later defendant and his brother, John, went to Cayucos. They spent the afternoon playing pool and drinking beer, wagering a drink of beer on the outcome of each game of pool. A dispute arose between them—John claimed defendant owed him a glass of beer; defendant claimed he did not. Defendant bought a glass of beer for himself, took one sip, and left for the restroom. While he was gone John drank defendant’s glass of beer, left the saloon, and concealed himself in an adjoining building. When defendant returned from the restroom he asked who had drunk his beer. He was told his brother had. Defendant then became “pretty ornery,” said “I’m going to get that dirty so-and-so,” and left the saloon. Defendant looked for John but did not find him. He then got a piece of 2-inch pipe about 18 inches long, went to John’s pickup truck, said, “Well, I’ll fix him. I’ll bust his ignition switch, where he’ll have to walk,” and hit the .ignition switch with the pipe. John saw what was going on, shouted to defendant to stop or he would have him arrested. As John approached, defendant swung the pipe at his head. A scuffle took place. John testified that during the scuffle defendant told him “he was going to get both of us; he said we thought we were pretty smart S-B’s, that he was going to get both of us before 12 o’clock.” A bystander testified he heard defendant say “he’d have him [John] under the sod, before the night was over.” A peacemaker quieted the brothers and offered to buy each a beer. They went to a saloon and had a beer. The bystander suggested the brothers shake hands. John was willing but defendant refused. About 5:30 p.m. John said to defendant, “If you’re not ready to go back to the ranch by 6 o’clock, I’m going to go off without you.” John then left the saloon.

John left Cayucos alone in his pickup truck about 6 p.m. Defendant stayed in the saloon and when the bartender refused to serve him more beer he left and went to another. On

Defendant left Cayucos about 7 p. m. and walked 7 miles to the ranch. On the way he was “pretty ornery” and “cussed his brother out.” When he arrived at the ranch he stopped at John’s pickup truck and slammed the door. John heard the door slam,- Jack said, “See who that is”,- John opened the window, saw it was defendant, and said in a loud voice, “Get the hell away from the truck.” As defendant approached the house he called out, “You S-B’s have had it.”

Virginia and Susan were in the living room. It was about 10:30. On hearing defendant approach the house, Susan went upstairs and told Jack and John defendant had arrived. Defendant entered the house through the kitchen and walked into the living room. As he did so he said to Virginia, “You dirty so-and-so’s, what did you take the pick-up and make me walk seven miles home?” John testified he heard defendant say this. In the living room defendant looked toward the place where his rifle was usually kept. Not finding it, he walked back to the kitchen. After wandering around several minutes he picked up Jack’s rifle, pumped it, forcing a shell into firing position. Virginia told him he had better put the gun down. He told her to mind her own business. Defendant walked out the back door and started up the stairs to the second floor, followed by the two women. As he started up the stairs Virginia shouted to Jack and John to watch out, that he was coming up with a gun. Defendant told her to shut up or he would shoot. As he neared the top of the stairs defendant said, “You wise S-B’s think you’re pretty smart. You stole my pick-up and my rifle, and you let me walk seven miles from the town.”

Jack and John were in the loading room with the door closed. They heard what defendant said. Jack was 6 feet 2 inches tall and weighed 263 pounds. Jack told John to step back of the door, said “I’m going to ask him to leave,” that he didn’t want any drinking there and was going to ask him

Defendant’s version of the events prior to his return to the ranch on the night of the shooting conformed generally to the evidence of the People. He testified that after the dispute in the saloon at Cayucos he was “pretty mad,” “got pretty ornery,” and went looking for John; John pulled a knife in the scuffle at the pickup truck; he said to John, “You cut me with that knife, you won’t live to tell about it.” He denied otherwise threatening Jack or John. He thought the rifle he picked up in the kitchen was his and he was going up to bed. He clicked the loading mechanism to assure himself a shell was not in the chamber. As he was going up the stairs, Virginia yelled, “Look out! Dick’s coming upstairs, and he’s got a gun.” He said, “Shut up! I’m not going to shoot anybody. I’m just going up and go to bed.” He walked on up the stairs, heard a shuffling of feet, heard a door open, turned around, and there was his uncle coming out the door with his hands behind him. His uncle closed the door and yelled, “I’ll kill you, you lousy bastard.” He levered a shell into the chamber of the rifle. His uncle came charging at him with his right hand swinging. He knew his uncle was very violent, and thought he saw a knife in his left hand and that he was going to kill him; he levered a shell into the chamber; aimed the gun at his uncle’s legs; yelled, “Halt! Stop!” Jack kept coming; he jumped back and pulled the trigger.

Murder is the unlawful killing of a human being, with malice aforethought. (Pen. Code, § 187.) “ Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow-creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.” (Pen. Code, § 188.) “All murder which is perpetrated by means of poison, or lying in wait, torture, or by any other kind of wilful, deliberate, and premeditated killing, or which is committed in the perpetration or attempt to perpetrate arson, rape, robbery, burglary, mayhem, or any act punishable under Section 288, is murder of the first degree; and all other kinds of murders are of the second degree.” (Pen. Code, § 189.)

“Murder of the second degree: a willful act characterized by the presence of malice aforethought and, at least ordinarily, by the specific intent to kill, and by the absence of premeditation and deliberation.” (People v. Bender, 27 Cal.2d 164 , 181-182 [ 163 P.2d 8 ].)

“When an unlawful assault is made with a deadly weapon upon the person of another, resulting in death, and the assault is not provoked or perpetrated in necessary self-defense, or in the heat of passion, malice may be presumed. Under such circumstances, the killing may constitute murder of the second degree when it is not perpetrated by means of poison, lying in wait, torture or any other kind of wilful, deliberate or premeditated killing.” (People v. Butterfield, 40 Cal.App.2d 725 , 729 [ 105 P.2d 628 ].)

There was ample evidence that defendant was not intoxicated and that he was capable of forming the required intent. It may fairly be inferred from the evidence that the killing did not occur as a result of any deliberation or premeditation. The trial judge in reducing the degree of the offense said: “After a careful review and consideration of all the evidence

It is argued that parts of the testimony of John McAuliffe are not worthy of credence, that there are inconsistencies in his testimony and between the testimony of various witnesses, that there are conflicts between the testimony of John and the testimony of other witnesses. These matters were the concern of the jury and of the trial court on hearing the motions for a new trial and for reduction of the degree of the offense. No matter how inconsistent the testimony of a witness or of two or more witnesses may be, a reviewing court cannot reject the testimony. (People v. Mooney, 177 Cal. 642 , 650 [ 171 P. 690 ].)

A homicide is justifiable “2. When committed in defense of . .. person, against one who manifestly intends or endeavors by violence or surprise, to commit a felony ... or, 3. When committed in the lawful defense of such person . . . when there is reasonable ground to apprehend a design to commit a felony or to do some great bodily injury, and imminent danger of such design being accomplished; but such person, or the person in whose behalf the defense was made, if he was the assailant or engaged in mutual combat, must really and in good faith have endeavored to decline any further struggle before the homicide was committed.” (Pen. Code,

“ ‘If the defendant in any way challenged the fight, and went to it armed, he cannot afterward maintain that in taking his assailant’s life he acted in self defense. “A man has not. . . the right to provoke a quarrel and take advantage of it, and then justify the homicide.” Self-defense may be resorted to in order to repel force, but not to inflict vengeance. . .. “ There is certainly no law to justify the proposition that a man may be the assailant and bring on an attack, and then claim exemption from the consequence of killing his adversary on the ground of self defense.” ’ ” (People v. Holt, 25 Cal.2d 59 , 66 [ 153 P.2d 21 ].)

Defendant’s contention that the evidence shows as a matter of law that the homicide was justifiable, committed in self-defense, is predicated largely on his own testimony. The jury was not required to accept defendant’s version of the killing. (People v. Zilbauer, 44 Cal.2d 43 , 48-49 [ 279 P.2d 534 ]; People v. Eggers, 30 Cal.2d 676 , 686 [ 185 P.2d 1 ] ; People v. Fitch, 28 Cal.App.2d 31 , 38 [ 81 P.2d 1019 ].) Whether defendant, as a reasonable man, was justified in believing, under the facts, that he was threatened with imminent danger so as to justify the use of a deadly weapon in necessary self-defense was a question of fact for the jury. With its conclusion we may not interfere. (People v. Torres, 94 Cal.App.2d 146 , 149 [ 210 P.2d 324 ]; People v. Gallow, 106 Cal.App.2d 647 , 649 [ 235 P.2d 660 ]; 25 Cal.Jur.2d 817, § 825.) We cannot say, as a matter of law, that defendant acted in self-defense.

The theory of the People at the trial apparently was that defendant intended to kill his brother John and that when he reached the top of the stairs and met his uncle, Jack, he transferred his intent to his uncle. Accordingly, the People proffered and the court gave this instruction:

“If you find from the evidence that the defendant, Richard Gilbert McAuliffe, deliberately and premeditately [sic] intended to wilfully, unlawfully, and with malice aforethought kill and murder his brother, John Charles McAuliffe, or any other human being, and that in making such unlawful

attempt to take the life of his brother, John Charles Mc-Auliffe, or any other person, the defendant, Richard Gilbert McAuliffe, intentionally killed his uncle, John Thomas ‘Jack’ McAuliffe, then the defendant, Richard Gilbert McAuliffe, is, under such circumstances, just as guilty of the crime of murder and of the same grade of offense as if he had unlawfully, deliberately, and premeditately [sic] and with malice aforethought, killed his brother, John Charles McAuliffe, or the person whom he intended to kill instead of his uncle, John Thomas ‘Jack’ McAuliffe. Under such circumstances the crime is as complete as though the person against whom the intent to kill was directed had been in fact killed.

‘ ‘ If you should find that Richard Gilbert McAuliffe killed his uncle, John Thomas ‘Jack’ McAuliffe, when his uncle was placing himself between Richard Gilbert McAuliffe and the object of his vengeance, you are advised that the law holds the assailant responsible for his felonious intent, merely transferring its direction from the original object of the attempt to the person killed. The degree of guilt is the same as it would have been if the attempt had resulted in the death of the person at whom it was aimed.”

Defendant asserts it was error to give this instruction. He says the first paragraph fails to advise the jury to take into consideration the evidence relating to self-defense or other circumstances of mitigation; that it assumes defendant unlawfully attempted to take the life of his brother; and that it ignores the elements of all the lesser included degrees of homicide, and emphasizes the elements of first degree murder. He says the second paragraph is based on the unwarranted assumption that Jack “was placing himself between [defendant] and the object of his vengeance,” and advised the jury that if defendant killed Jack under such circumstances the law holds him responsible for his felonious intent, merely transferring its direction from the original object of the attempt to the person killed.

The instruction complained of was immediately preceded by this one:

“Where a person with malice aforethought attempts to unlawfully kill a certain other person, but, by mistake or inadvertanee [sic], in such attempt kills a different person from the one whom he intended to kill, the law nevertheless holds the assailant responsible for his felonious intent, merely transferring its direction from the original object of the attempt

to the person killed, and the homicide so committed is murder. The degree of guilt is the same as it would have been if the attempt had resulted in the death of the person at whom it was aimed. ’ ’

The crime may be murder although the person killed was not the one whom the accused intended to kill. (40 C.J.S. 864, § 18.) One of the first cases in this state applying the so-called doctrine of transferred intent appears to have been People v. Suesser, 142 Cal. 354 [ 75 P. 1093 ], in which the first paragraph of the criticized instruction was given and expressly approved. The court stated (p. 366) :

“ ‘In determining the criminality of the act of killing it will be immaterial whether the intent was to kill the person killed or whether the death of such person was the accidental or otherwise unintended result of the intent to kill some one else—the criminality of the act will be deemed the same. ’ . . .

“ [P. 367.] The court therefore did not err in refusing defendant’s instruction on this subject. We see nothing in the contention that the instruction on this subject, given at the request of the people, invaded the province of the jury. No other objection that demands notice is made thereto, and, so far as we can see, it correctly stated the law upon the subject under discussion.”

People v. Weeks, 104 Cal.App. 708 [ 286 P. 514 ], says (p. 712): “In the case before us we have all the elements of this crime [first degree murder]. The malice was express, also the intent to take life, and because the defendant, in carrying out his threats and his felonious intent, took the life of his friend rather than the life of his supposed enemy, cannot excuse his act or reduce the degree of his crime.”

People v. Buenaflore, 40 Cal.App.2d 713 [ 105 P.2d 621 ], says (p. 717) : “As declared by the decisions hereinafter cited, if one wilfully, premeditatedly and of his malice aforethought commits or attempts to commit an assault upon a certain person with the intention of killing him, but in the execution of his design unintentionally kills another instead, it is nevertheless murder. The intent in such case is transferred by law from his intended victim to the person killed. In other words, the crime is exactly what it would have been if the person against whom the intent to kill was directed had been in fact killed.”

People v. Aranda, 12 Cal.2d 307 [ 83 P.2d 928 ], states (p. 310): “Whether the three killings were the result of the victims obtruding themselves between the defendant and the

The instruction amounts to no more than a statement that if the jury believed from the evidence the facts stated therein, defendant was as guilty as if he had killed his brother. The instruction was not a comment on the weight of the evidence nor did it express any view that might be held by the court.

The cause was well and fairly tried. The jury was fully, fairly, and accurately instructed on all principles of law applicable to the evidence. We find no merit in any of the assignments of error.

The People’s Appeal

The appeal of the People from the order reducing the degree of the offense to second degree murder is predicated on the theory that the trial court did not have the power to reduce the degree of the crime since the evidence was legally sufficient to support the finding of the jury that defendant was guilty of first degree murder. It is argued that under the circumstances of this ease the evidence justified the finding of the higher degree, and that on a motion to reduce the trial court has no power to weigh the evidence.

The contention of the People is answered by the recent decision of the Supreme Court in People v. Sheran, 49 Cal.2d 101 [ 315 P.2d 5 ] in which the court expressly held to the contrary of the People’s contention. The court there held that the power of the trial court on a motion to reduce

The judgment, the order denying a new trial, and the order reducing the degree of the offense are affirmed.

Shinn, P. J., and Wood (Parker), J., concurred.