People v. Leslie

Defendant Edward James Leslie was charged in the first count of an information with the murder of his daughter Susan (Pen. Code, § 187) and in a second count with assault with intent to commit murder (Pen. Code, § 217) committed upon the person of his wife Louella. A court, sitting without a jury, found him guilty on both counts, fixed the degree of murder under the first count as second degree (Pen. Code, §§ 189, 1192), and sentenced defendant to the state prison on each count, the sentences to

Defendant and his wife Louella (now Louella Ligón) were married in 1955 and divorced in 1961. In August of that year defendant was granted an interlocutory decree which among other things awarded to Louella, who did not contest the divorce, custody of their two children Brenda and Susan. In the following December the parties resumed living together in an apartment in San Leandro which they shared until about February 12, 1962, when they again separated. Just prior to this separation, an argument had arisen between them culminating in an incident during which defendant shot a gun out of a window. Louella testified that she then left defendant, taking Susan with her, because she was afraid of him.

On February 18, 1962, Louella and her two children were staying at the home of her parents, Mr. and Mrs. Henry Spence, in Hayward. Brenda was then 5 years old; Susan was 3. On that day Louella and her mother had accidentally met defendant in Hayward at which time Mrs. Spence told him he could visit his children that night if he wanted to.

Defendant arrived at the Spence residence at about 9 or 10 p.m. The children were then ready for bed. He sat in the living room with them, held them on his lap and gave them some candy. At some time thereafter, not clear from the record, the children were put to bed. Louella’s father arrived home from work about 11 p.m.

After defendant was there about two hours, Louella herself started to get ready for bed. While she was changing her clothes in her mother’s bedroom, defendant entered and asked her if she thought she would ever take him back. During the ensuing conversation, defendant told her that he would rather see her dead than married to anyone else. Louella then went into another bedroom where she slept in the same bed with Susan. Defendant followed her there but left almost immediately when she told him that he would awaken his daughter.

By this time Louella was in bed with Susan. This bed was located along the north wall of the room; its head was against the east wall. There was another bed in the room similarly placed along the south wall. Between the two beds and at the approximate center of the east wall was a chest of drawers. Photographs of the room received in evidence and now before us disclose that the distance between the beds was

The testimony of both parties as to the third shot is substantially in accord: defendant pointed the gun at Louella’s face, she pushed it aside with her left hand, and as she did, it went off again, wounding her left hand. As Louella marked it on the diagram, she was still near the foot of the second bed and defendant was a short distance out from the bed and toward the east wall. He then pushed her against the second bed and “put the gun in my face again.” In view of the location of the beds and the chest, it is to be noted that all of this activity must have taken place in a very limited space.

At this point the door opened and Louella’s father and her brother James came into the bedroom. As they did so, defendant stood up, put the gun to the right side of his head and said “I will shoot myself.” The father walked over slowly to defendant, grabbed him, and in a rolling motion both of them fell onto the bed near the north wall where Susan was lying. As defendant hit the bed, “his legs hit it, and kind of sat down” so that he then fell across the bed on his back. Mr. Spence was on top of defendant but “more to his right side.” The gun was in defendant’s right hand during the foregoing scuffle and as the two men started to fall on the bed, the gun discharged, causing powder burns on Mr. Spence’s left ear and the left side of his face. The gun fired from defendant’s right to his left and in the direction of the eastern wall. This would be along the length of the bed and towards the head of the bed. Mr. Spence estimated that when it went off as both men were falling, his head was then about three feet above the level of the bed.

James Spence, Louella’s brother, then jumped on defendant, pushing his father off as he did so, and grabbed defendant’s hand which held the gun. James threw defendant’s hand back over the edge of the bed, and as he did so the gun went off again. As a result the gun was firing downward,

The Attorney General makes two arguments in reply: First, the fatal shot must have been one of the first three directed at defendant’s wife since the evidence eliminates the possibility that it was either of the last two shots; and secondly, even though the child had been killed by one of the last two shots, since such killing was part of a continuous transaction beginning with defendant’s assault on his wife, the offense was still murder under the felony murder rule. As we will explain, we have concluded that the first argument has merit. Since it disposes of the issue of sufficiency of the evidence, we deem it unnecessary to consider the Attorney General’s second argument.

We first make some observations on the scope of our review. As pointed out above, defendant claims that the prosecution has failed to prove the element of malice beyond a reasonable doubt. Such a contention cannot properly be made before us. It is the trier of fact, not the appellate court, which must be convinced of defendant’s guilt beyond a reasonable doubt. “The test on appeal is whether there is substantial evidence to support the conclusion of the trier of fact. It is not whether guilt is established beyond a reasonable doubt.” (People v. Daugherty (1953) 40 Cal.2d 876 , 885 [ 256 P.2d 911 ], cert. denied, 346 U.S. 827 [ 74 S.Ct. 47 , 98 L.Ed. 352 ]; People v. Love (1960) 53 Cal.2d 843 , 850 [ 3 Cal.Rptr. 665 , 350 P.2d 705 ] ; People v. Robillard (1960) 55 Cal.2d 88 , 93 [ 10 Cal.Rptr. 167 , 358 P.2d 295 , 83 A.L.R.2d 1086 ], cert. denied, 365 U.S. 886 [ 81 S.Ct. 1043 , 6 L.Ed.2d 199 ]; People v. Redrick (1961) 55 Cal.2d 282 , 289 [ 10 Cal.Rptr. 823 , 359 P.2d 255 ]; People v. White (1963) 218 Cal.App.2d 267 , 274 [ 32 Cal.Rptr. 322 ].) Our inquiry as to

With the foregoing rules in mind, we examine the validity of the People’s premise that neither the fourth nor fifth shots, which defendant maintains were accidental and without malice, could have killed the child. It is clear from the evidence already summarized by us that the fourth shot was fired as Mr. Spence was struggling with defendant and the latter was falling backward on Susan’s bed, the gun grasped in his right hand. The gun was fired toward the east wall and, according to Spence’s son, the gun barrel was parallel to the floor. At the time of its discharge close to Mr. Spence’s face, the latter’s head was still 3 feet above the surface of the bed. Only one bullet was found in the east wall at a point about 4 feet above the floor and about 20 inches above the mattress. According to Officer Moran, the bed on which Susan was sleeping was a metal frame bed and its headboard showed bullet damage. The officer expressed the opinion that the bullet which was lodged in the east wall had first struck the metal headboard. The trial court would have been justified in concluding that this was the fourth shot fired and that in the absence of any evidence that Susan ever

As we have also set forth earlier, the fifth shot was discharged as James Spence jumped on defendant, throwing the latter’s gun hand over the inside edge of the bed in an attempt to disarm him. According to James, the gun was thus fired downward, away from the bed and into the north wall near the baseboard. Subsequent investigation disclosed a bullet imbedded in the wall at this point. However, it also disclosed another bullet lying on the floor in the same general area and near the window which was in the approximate center of the north wall. According to the investigating officers, it was this latter bullet which pierced the mattress in the corner at the foot of the bed, hit the footboard of the bed, and ricocheted off to a point on the right hand side of the window located in the center of the north wall, where it dropped to the floor. Furthermore, it was their testimony that the former bullet found in the north wall near the baseboard had come to rest there after going through the mattress at a point about 2 feet 5 inches from the bottom of the bed. Officer Horan testified that to the best of his recollection there were no marks or bullet holes on the north wall which were consistent with the testimony of James Spence that the gun was fired over the inside edge of the bed. The resolution of this conflict in the testimony was for the trier of fact. The trial judge could have very well believed James’ testimony that the gun was discharged for the fifth time during his struggle with defendant but that James was mistaken as to the exact point of discharge and that the gun had been fired through the mattress, rather than over the inner edge of the bed, into the wall.

Nevertheless the pertinent evidence, although subject to the above conflict, can in no way support the conclusion that the fifth shot was the fatal one. The evidence is uneontradicted that the fifth shot was fired after defendant had fallen backward across Susan’s hips and feet and defendant’s hand holding the gun had been thrown backward near the inside edge of the bed. It is uncontroverted that at the instant of the fifth shot, defendant’s right hand holding the gun was the hand farther from Susan’s body (defendant being then on his back) and that therefore both defendant and James were between Susan and the gun. Susan was apparently shot while lying face down in bed. From the evidence pertinent to the course of the fatal bullet, already set forth above, and