People v. Washington

402 P.2d 130, 62 Cal. 2d 777, 44 Cal. Rptr. 442, 1965 Cal. LEXIS 295

• Court: California Supreme Court
• Decided: May 25, 1965
• Docket: Crim. 8528
• Status: Published

Opinions

TRAYNOR, C. J.

Defendant appeals from a judgment of conviction entered upon jury verdicts finding him guilty of first degree robbery (Pen. Code, §§ 211, 211a) and first degree murder and fixing the murder penalty at life imprisonment. (Pen. Code, §§ 187, 189, 190, 190.1.)¹ He was convicted of murder for participating in a robbery in which his accomplice was killed by the victim of the robbery.

Shortly before 10 p.m., October 2, 1962, Johnnie Carpenter prepared to close his gasoline station. He was in his office computing the receipts and disbursements of the day while an attendant in an adjacent storage room deposited money in a vault. Upon hearing someone yell “robbery,” Carpenter opened his desk and took out a revolver. A few moments later, James Ball entered the office and pointed a revolver directly at Carpenter, who fired immediately, mortally wounding Ball. Carpenter then hurried to the door and saw an unarmed man he later identified as defendant running from the vault with a moneybag in his right hand. He shouted “Stop.” When his warning was not heeded, he fired and hit defendant who fell wounded in front of the station.

The Attorney General, relying on People v. Harrison, 176 [1 Cal.Rptr. 414], contends that defendant was properly convicted of first degree murder. In that case defendants initiated a gun battle with an employee in an attempt to rob a cleaning business. In the crossfire, the employee accidentally killed the owner of the business. The court affirmed the judgment convicting defendants of first degree murder, invoking Commonwealth v. Almeida, 362 Pa. 596 [68 A.2d 595, 12 A.L.R.2d 183], and People v. Podolski, 332 Mich. 508 [52 N.W.2d 201], which held that robbers who provoked gunfire were guilty of first degree murder even though the lethal bullet was fired by a policeman.

Defendant would distinguish the Harrison, Almeida, and Podolshi eases on the ground that in each instance the person killed was an innocent victim, not one of the felons. He suggests that we limit the rule of the Harrison case just as the Supreme Courts of Pennsylvania and Michigan have lim,-ited the Almeida and Podolshi cases by holding that surviving felons are not guilty of murder when their accomplices are killed by persons resisting the felony. (Commonwealth v. Redline, 391 Pa. 486 [137 A.2d 472]; People v. Austin, 370 Mich. 12 [120 N.W.2d 766]; see also People v. Wood, 8 N.Y.2d 48 [201 N.Y.S.2d 328, 167 N.E.2d 736].) A distinction based on the person killed, however, would make the defendant’s criminal liability turn upon the marksmanship of victims and policemen. A rule of law cannot reason.ably be based on such a fortuitous circumstance. The basic | issue therefore is whether a robber can be convicted of murder ifm. fhA killing of any person by another who is resisting the

“Murder is the unlawful killing of a human being, with malice aforethought.” (Pen. Code, § 187.) Except when the common-law-felony-murder doctrine is applicable, an essential element of murder is an intent to kill or ah' intent with conscious disregard for life to commit acts likely to kill. (See People v. Thomas, 41 Cal.2d 470, 475 [261 P.2d 1] [concurring opinion].) The felony-murder doctrine ascribes malice aforethought to the felon who kills in the perpetration of an inherently dangerous felony. (People v. Ford, 60 Cal.2d 772, 795 [36 Cal.Rptr. 620, 388 P.2d 892]; People v. Coefield, 37 Cal.2d 865, 868 [236 P.2d 570].) That doctrine is incorporated in section 189 of the Penal Code, which provides in part: “All murder... committed in the perpetration or attempt to perpetrate... robbery... is murder of the first degree.” Thus, even though section 189 speaks only of degrees of “murder,” inadvertent or accidental killings are first degree murders when committed by felons in the perpetration of robbery. (People v. Coefield, supra, 37 Cal.2d 865, 868; People v. Boss, 210 Cal. 245, 249 [290 P. 881].)

When a killing is not committed by a robber or by his accomplice but by his victim, malice aforethought is not attributable to the robber, for the killing is not committed by him in the perpetration or attempt to perpetrate robbery. It is not enough that the killing was a risk reasonably to be foreseen and that the robbery might therefore be regarded as a proximate cause of the killing. Section 189 requires that the felon or his accomplice commit the killing, for if he does not, the killing is not committed to perpetrate the felony. Indeed, in the present case the killing was committed to thwart a felony. To include such killings within section 189 would expand the meaning of the words “murder . .. which is committed in the perpetration... [of] robbery ...” beyond common understanding.

The purpose of x the felony-murder rule is to deter felons from killing negligently or accidentally by holding them strictly responsible for killings they commit. (See Holmes, The Common Law, pp. 58-59; Model Penal Code (Tent. Draft No. 9, May 8, 1959) § 201.2, comment 4 at pp. 37-38; Report of the Royal Commission on Capital Punishment, Cmd. No. 8932, at pp. 35-36 (1949-1953).) This purpose is npt served by punishing them for killings committed by their victims.

It is contended, however, that another purpose of the felony-murder rule is to prevent the commission of robberies. Neither the common-law rationale of the rule nor the Penal Code supports this contention. In every robbery there is a possibility that the victim will resist and kill. The robber has little control over such a killing once the robbery is undertaken as this case demonstrates. To impose an additional penalty for the killing would discriminate between robbers,^not on the basis of any difference in their own eonduetj but solely on the basis of the response by others that the robber’s conduct happened to induce. An additional penalty for a homicide committed by the victim would deter robbery haphazardly at best. To “prevent stealing, [the law] would do better to hang one thief in every thousand by lot.” (Holmes, The Common Law, p. 58.)

A defendant need not do the killing himself, however, to be guilty of murder. He may be vicariously responsible under the rules defining principals and criminal conspiracies. All persons aiding and abetting the commission of a robbery are guilty of first degree murder when one of them Mils wMle acting in furtherance of the common design. (People v. Boss, 210 Cal. 245, 249 [290 P. 881]; People v. Kauffman, 152 Cal. 331, 334 [92 P. 861].) Moreover, when the defendant intends to kill or intentionally commits acts that are likely to kill with a conscious disregard for life, he is guilty of murder even though he uses another person to accomplish his objective. (Johnson v. State, 142 Ala. 70 [38 So. 182, 2 L.R.A. N.S. 897]; see also Wilson v. State, 188 Ark. 846 [68 S.W.2d 100]; Taylor v. State, 41 Tex. Crim. Rep. 564 [55 S.W. 961].)

Defendants who initiate gun battles may also be /found guilty of murder if their victims resist and kill. Under ''such circumstances, “the defendant for a base, antisocial motive and with wanton disregard for human life, does an act that involves a high degree of probability that it will result in death” (People v. Thomas, 41 Cal.2d 470, 480 [261 P.2d 1] [concurring opinion]), and it is unnecessary to imply malice by invoMng the felony-murder doctrine.² To invoke the felony-murder doctrine to imply malice in such a case is unnecessary and overlooks the principles of criminal liability that should govern the responsibility of one person for a killing committed by another. (See Hart and Honoré, Causation in the Law, pp. 296-299; Hall, Criminal Law, 2d ed., pp. 270-281; Morris, The Felon’s Responsibility for the Lethal Acts of Others, 105 U.Pa.L.Rev. 50; Brett, An Inquiry Into Criminal Guilt, pp. 123-124.)

To invoke the felony-murder doctrine when the Mlling is not committed by the defendant or by his accomplice could lead to absurd results. Thus, two men rob a grocery store and flee in opposite directions. The owner of the store follows one of the robbers and Mils him. Neither robber may have fired a shot. Neither robber may have been armed with a deadly weapon. If the felony-murder doctrine applied, however, the surviving robber could be convicted of first degree murder (see Commonwealth v. Thomas, 382 Pa. 639 [117 A.2d 204], overruled by Commonwealth v. Redline, 391 Pa. 486 [137 A.2d 472]), even though he was captured by a policeman and placed under arrest at the time his accomplice was killed. (Commonwealth v. Doris, 287 Pa. 547 [135 A. 313]; see People v. Corkery, 134 Cal.App. 294 [25 P.2d 257].)

The felony-murder rule has been criticized on the grounds that in almost all eases in which it is applied it is unnecessary and that it erodes the relation between criminal liability and moral culpability. (See e.g., Model Penal Code (Tent. Draft No. 9, May 8, 1959) § 201.2, comment 4 at pp. 37-39; Report of the Royal Commission on Capital Punishment, Cmd. No. 8932, at pp. 34-43, 45 (1949-1953); 3 Stephen, History of the Criminal Law of England 57-58, 74-75 (1883); Packer, The Case for Revision of the Penal Code, 13 Stan.L.Rev. 252, 259; Morris, The Felon’s Responsibility for the Lethal Acts of Others, 105 U.Pa.L.Rev. 50; 66 Yale L.J. 427.)³ Although it is the law in this state (Pen. Code, § 189), it should not be extended .-beyond any rational function that it is designed to serve. '-Accordingly, for a defendant to be guilty of murder under the felony-murder rule the act of killing must be committed by the defendant or by his accomplice acting in furtherance of their common design^] (Commonwealth v. Campbell, 89 Mass. 541 [83 Am. Dec. 705] ; Butler v. People, 125 Ill. 641 [18 N.E. 338, 8 Am.St.Rep. 423]; Commonwealth v. Moore, 121 Ky. 97 [88 S.W. 1085, 2 L.R.A. N.S. 719, 123 Am. St. Rep. 189, 11 Ann. Cas. 1024]; State v. Oxendine, 187 N.C. 658 [122 S.E. 568]; see also People v. Ferlin, 203 Cal. 587, 597 [265 P. 230].) Language in People v. Harrison, 176 Cal.App.2d 330 [1 Cal.Rptr. 414], inconsistent with this holding, is disapproved.

On his appeal from the robbery conviction, defendant contends that he did not participate in the robbery. He testified that on the evening of the robbery he was with Ball and a man named Johnson. He did not know that they intended to commit robbery. He was “pretty drunk” at the time and fell asleep in the automobile. When he awoke the automobile was parked near Carpenter’s gasoline station, and Ball and Johnson were absent. He left the automobile to look for them. As he approached the station, Johnson ran from the vault. Carpenter shot just as Johnson ducked around a corner and dropped the moneybag. Carpenter’s bullet hit defendant who fell wounded near the bag that Johnson had dropped.

Defendant’s testimony was corroborated by the testimonjr of James Johnson, an inmate of the state prison for an unrelated crime at the time of defendant’s trial. Johnson testified that he was the man who ran from the vault with the moneybag. Carpenter controverted their testimony, however, by identifying defendant as the man who ran from the vault. The evidence is therefore sufficient to support defendant’s conviction of robbery.

Defendant contends, however, that the trial court on its own motion should have instructed the jury to view Carpenter’s testimony with caution on the ground that it tended to be self-serving because Carpenter “was relieved of any criminal or civil responsibility for the shootings by implicating [defendant] and the deceased in an attempted robbery.” All testimony that favors a witness’ real or imagined self-interest, however, does not require a cautionary instruction. The testimony of a robbery victim does not come from a “tainted source” as does the testimony of an accomplice (People v. Robinson, 43 Cal.2d 132, 141 [271 P.2d 865] ; People v. Wallin, 32 Cal.2d 803, 808 [197 P.2d 734]; Code Civ. Proc., § 2061, subd. 4), nor is his testimony like that of a complaining witness in a sex offense, which may be motivated by malice and beyond effective contradiction because it relates to matters that ordinarily take place in secrecy. (People v. Putnam, 20 Cal.2d 885, 891-892 [129 P.2d 367].) In the present case, there was no such danger of perjury, and defendant had a fair opportunity to controvert the witness’ testimony. The court properly instructed the jury that they were the exclusive judges of the credibility of the witnesses and informed them that they might consider such matters as the relation of the witnesses to the case and their interest therein. Although the court could have, made “such comment on the evidence and the testimony and credibility of any witness as in its opinion [was] necessary for the proper determination of the case ...” (Pen. Code, § 1127), it was not required to give a cautionary instruction.

The judgment is affirmed as to defendant’s conviction of first degree robbery and reversed as to Ms conviction of first degree murder.

Peters, J., Tobriner, J., Peek, J., and White, J.,

* concurred.

1 Defendant’s appeal from the nonappealable order denying a new trial is dismissed. (Pen. Code, § 1237, subd. 2.)

2 One scholar has commented that “People v. Harrison, 176 Cal.App.2d 330, 1 Cal.Rptr. 414 (1959), is probably not, strictly speaking, a felony-murder case at all, but rather a case taking a very relaxed view of the necessary causal connection between the defendant’s act and the victim’s death, an approach which is possible quite independent of the felony-murder rule.” (Backer, The Case for Mevision of the Penal Code, 13 Stan.L.Rev. 252, 259, fn. 39.)

3 The felony-murder rule has been abolished in England (English Homicide Act, § 1, 1957, 5 & 6 Eliz. II, c. 11), and has been converted to a rebuttable presumption of malice by the Model Penal Code. (Model Pen. Code (Tent. Draft No. 9, May 8, 1959) § 201.2.)

Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.