People v. Fuqua

The appellant Robbie Dee Fuqua and his co-defendant Donald Ray Hart were convicted of the crime of murder in the second degree in a trial in which they waived their right to trial by jury. The motion of the appellant for a new trial was denied. Proceedings were suspended without

At the police station, another statement, which was recorded, was taken from Fuqua at about 5 a. m. Therein Fuqua said in part as follows: Earlier in the evening Hart told Fuqua that May was supposed to have about $300 which he had obtained from Georgia Hill and “he says maybe if we get him real drunk we can take some of it . . . and he’ll never know the difference, so that sounded all right to me.” Fuqua and Jim Brady, May’s son-in-law, had on previous occasions removed money from May’s pocket when he was drunk. Fuqua then stated: “. . . so I agreed that we’d try to get Ed drunk and put him in bed and take, take some of his money, not all of it, just some of it, and so me and Ed [May] left for the liquor store and Don stayed there at the house.” This was about 10:30 [p. m.]. When they returned, Georgia Hill had come home. The four then sat in the kitchen and talked and drank. Georgia Hill got up and put her arm around Fuqua. May told Fuqua to get out. May turned around as if he were going to walk away and then “swung at me.” Fuqua grabbed him by the arms. Hart shoved May and May fell down on the floor. Fuqua then took May into the bedroom and tried to calm him. Hart and Georgia Hill entered the room and an argument ensued between Hart and May in which Georgia Hill participated. Fuqua and Hart thereafter left the house after Fuqua had taken some food and beer which was in the refrigerator.

At 1:30 p. m. on August 22, Officers Bennett and Twitchell had a conversation with the defendant Hart and the appellant Fuqua which was recorded. Part of that conversation was as follows: Hart said that he and Fuqua “just started talking about it, that he had a large amount of money, you know, we should wait ’til he passes out or, you know, drinks quite a bit until he passes out and then we’d take it.” Officer Twitchell asked, “What, what if you couldn’t get him drunk enough to pass out?” Hart replied, “Well, we mentioned hitting him or something or knocking him out.” Fuqua was then asked if that was “the way you more or less remember the conversation,” and he answered, “Yeah, yeah.” Fuqua did not know whether the idea of getting the money was his idea or Hart’s. Fuqua was asked what he remembered of the conversation with Hart after they left the house. He stated: “Well, I wanted to wait until they, the lights went out, see, and they went to bed and went to sleep, once they went to sleep, in the condition that they were, ah, I mean, they couldn’t woken up, I was all for crawling through the window, you know, and looking through Ed’s house and, ah, there was a bunch of noise. We were discussing this on the front porch at that time, there was a bunch of noise coming from in there and Don said, ah, he’s beating her up. . . . He said we can’t let him do that so he tried to open the door and it had one of those chain latches on it and we could just see so much but we could see that Georgia was laying on the floor and Ed was kneeling by her. ’ ’ He did not actually see May strike Georgia Hill, “but just looking through the door it looked like he had been or else was going to.” Hart stated: “I couldn’t get in the front door and so I ran around the back door and I come in and, ah, he was kneeling over her, pushing her, you know, and I got on my knees and I told him to get away, yeah, I told him to get away and I asked her, I says, are you all right, Georgia, and she was cussing and said he had been beating me or something like that. And he said something to me, you know, he cussed at me or something and then, oh, I hit him then.” After Hart completed his statements as to that occurrence, Fuqua was asked if that was more or less his version of what happened and he answered,

As a witness on his own behalf, on direct examination Hart testified as to the incident when May had Georgia Hill on the floor as follows: “Well, I parked my car out in front, and Robbie parked up the street in front of my car. I asked him if he got any of the beer, and we opened a can of beer on the curb. We were leaning against the car drinking and talking about all the trouble, I mean, what could have been caused there, you know, a big fight, and everything. So I said, ‘I am glad we left.’ And that is when we heard this screaming and yelling coming from the house. ... We ran up to the door, we were still on the porch, and we listened for awhile, and we heard them arguing; then we heard a slap. . . . Well, I opened the screen door, and I tried to go in the front door, and it had a chain lock on it, and it would open so far only, to where I could see in. And I saw Georgia on the floor, by the couch, and Ed was on top of her. . . . Well, I told Robbie, ‘We have got to get in there; we can’t let him beat her up like that.’ So I couldn’t get in the front door, so I ran around to the back door. I ran in the back door

In the course of stating his decision that the defendants were guilty of the charge of murder in the second degree, the trial judge said: “I am satisfied in my own mind that these young men planned a course of procedure to get the money of the victim. I don’t believe there was any abandonment of that original plan. The fact that they carried it out satisfied me beyond a reasonable doubt that there wasn’t such an abandonment ; that they carried through the original plan to its fruition. ’ ’

We turn now to the eases, mentioned above, upon which the appellant primarily relies. In People v. Estrada, 60 Cal.App. 477 [ 213 P. 67 ], the only direct evidence that the deceased was killed by the defendant consisted of a written statement made by the defendant shortly after his arrest. The defendant did not testify at the trial. The judgment of conviction of manslaughter was reversed. The court said, at pages 481-483: “In our opinion there is nothing indicated by the narrative as expressed in the statement of the defendant to warrant the conclusion that defendant, in repelling the attack of Murillo, acted other than in necessary self-defense. ... It was not necessary that the defendant should have in words pictured his state of mind as it was at the time of the attack, for under his statement of the encounter the circumstances were such as to indicate nothing else but that by doing what he did he was defending himself against a murderous assault then being made by the deceased. . . . The proof on the part of the prosecution (referring now to the statement of the defendant) did, as we have indicated, show a case of justification, and there is nothing in any of the other evidence presented which in anywise tends to contradict or dispute defendant’s version of the affair. ... We conclude that defendant’s first contention is well made and that the verdict of the jury is not supported by the evidence.”

In People v. Salaz, 66 Cal.App. 173 [ 225 P. 777 ], the court said, at page 181: “The jury could not have found, from the evidence for the people, that the killing was done by appellant except upon the latter’s admissions which carried, in close and immediate connection with proof of the killing, circumstances of necessary self-defense. Since, therefore, the proof on the part of the prosecution tends to show that the act of appellant was justifiable, there was, at the close of the people’s case, no presumption against the accused that he had committed an

“But it does not necessarily follow that appellant’s account of the killing, though uncontradicted by direct evidence, should control the jury. If there be any well-established circumstance in the case which may reasonably be regarded as incompatible with the theory of the defense that the killing was justifiable, then the jury, from a consideration of all the evidence, was warranted in finding that the act amounted to an unlawful homicide. The question therefore is.- Does the record furnish evidence of any circumstance which cannot reasonably be reconciled with the theory that appellant acted in self-defense?”

A judgment of conviction of manslaughter was reversed in People v. Toledo, 85 Cal.App.2d 577 [ 193 P.2d 953 ], on the basis of reasoning similar to that found in the Estrada and Salaz eases.

More recently the Supreme Court has had occasion to state the applicable principle as follows: “The sentence in the Salaz case which, according to defendant, should be applied to the present case, does not stand for a rule of law that a defendant cannot be convicted if the prosecution introduces some evidence which tends to prove that defendant did not act in the manner or have the state of mind which is necessary to constitute a crime and there is other evidence sufficient to show guilt. As the Salaz case itself indicates, if there is prosecution evidence which tends to disprove criminality and other prosecution evidence which tends to prove criminality, it is the function of the trier of fact to determine which version is to be believed. (See People v. Freudenberg (1953), 121 Cal.App.2d 564 , 575-576 [ 263 P.2d 875 ] ; People v. Rutland (1953), 120 Cal.App.2d 798 , 800 [ 261 P.2d 735 ] ; of. People v. Howard (1930), 211 Cal. 322 , 329-330 [ 295 P. 333 , 71 A.L.R. 1385 ] ; People v. Holt (1944), 25 Cal.2d 59 , 90-93 [ 153 P.2d 21 ].) The courts may sometimes say that the prosecution is ‘bound by’ extrajudicial statements of defendant which are introduced by the prosecution and which are irreconcilable with guilt, but this concept is applicable only where there is

“Portions of defendant’s testimony and his statements to the deputy district attorneys are to the following effect: Defendant saw the boy leave the theater. Defendant almost immediately thereafter left the theater, looked about the lobby and saw that the boy was not there, concluded that the boy had gone to the men’s room, and himself went to the men’s room. Prom the sounds which defendant then heard, he concluded that the boy was in the booth. The jury were not required to believe defendant’s testimony that he decided to cut the boy slightly when defendant heard him in the booth; they could determine that defendant followed the boy from the theater to the men’s room with the formed purpose of cutting him fatally. According to one of defendant’s statements to a deputy district attorney defendant left his seat in the theater 'about half a minute or so, maybe more, ’ after he saw the boy walk down the aisle, and in response to the question ‘Did you expect to see him in the toilet?’ answered ‘Yes, I expected to.’

“It is defendant’s position that, despite the foregoing extrajudicial statements and the testimony of defendant, the

“ ‘Question: When did it enter your mind to do that? Answer: After I had gone into the head. . . .

‘ ‘ ‘ Question: Tell me, did the little boy have anything to do with your going to the restroom? Answer: No. ... I would have gone up anyway if he hadn’t gone out ... I thought to grab this kid as he came out and my original intention was to just cut him a little bit and scare him but--

“ ‘Question: (Interposing) Any reason for that? Answer: No. . . . [OJther than just scare him was my original intention. Then I got panicky and killed him.’

“Defendant urges that ‘where the prosecution introduces evidence favorable to the accused and does not controvert such evidence, the prosecution is bound by such uneontradicted evidence’ (citing People v. Coppla (1950), 100 Cal.App.2d 766 , 769 [ 224 P.2d 828 ] ; People v. Toledo (1948), 85 Cal.App.2d 577 , 581 [ 193 P.2d 953 ]). But here the statements of defendant presented by the People were not all uncontradicted evidence in his favor. Eather, the very statements of defendant on which defendant now relies contained, among other evidence, evidence on which, as already indicated, the jury could predicate a determination (based on the evidence in the ease as a whole, rather than the isolated statements of defendant which he contends show lack of deliberation and premeditation) that defendant followed his victim from the theater with a formulated intent to injure him fatally.”

The contention of the appellant in the present case revolves around the claim that the statements received in evidence show that the “motivation for the striking of decedent by Hart was not for the purpose of getting money” but, rather, was the concern of the defendants “about the beating of Mrs. Walker by the decedent.” The trial court was, of course, dealing with the state of mind of each of the defendants at the time of the striking of May by Hart. As succinctly stated in People v. Lyles, 156 Cal.App.2d 482 [ 319 P.2d 745 ], at page 486: “. . . intent is rarely susceptible of direct proof and ordinarily must be inferred from a consideration of all the facts and circumstances shown in evi

“ As so often repeated, the function of an appellate tribunal begins and ends with a determination of whether the record on appeal contains evidence, contradicted or uncontradicted, which supports directly or upon reasonable inferences drawn therefrom, the conclusion of the trier of the facts. As was said by our Supreme Court in People v. Newland, 15 Cal.2d 678 , 681, 682 [ 104 P.2d 778 ], in the performance of that function, ' “We must assume in favor of the verdict the existence of every fact which the jury could have reasonably deduced from the evidence, and then determine whether such facts are sufficient to support the verdict.” If the circumstances reasonably justify the verdict of the jury, the opinion of the reviewing court that those circumstances might also reasonably be reconciled with the innocence of the defendant will not warrant interference with the determination of the jury. (Citing cases.)’” (People v. Lyles, supra, 156 Cal.App.2d 482 , 487-488.)

With respect to the determination of the trial court that the killing constituted murder in the second degree, the appellant is in no better position to complain than was the appellant in People v. Bauman, 39 Cal.App.2d 587 [ 103 P.2d 1020 ], wherein it was said at page 591: “Assuming that there could be a reasonable doubt on the part of a jury as to the intent of appellant to commit robbery, or that the act was not the result of previous planning or deliberate determination, and assuming that the crime was one of 'drunk rolling’, with an intent to commit larceny rather than robbery, nevertheless the felonious intent to commit larceny by the use of felonious means, in the perpetration of which the victim was slain, would constitute murder of the second degree. Under such circumstances malice is implied. (Pen. Code, § 188; People v. Garnett, 9 Cal.App. 194 [ 98 P. 247 ].) A

The judgment and the order denying the motion for a new trial are affirmed.

Shinn, P. J., and Vallée, J., concurred.