265 P. 978 | Cal. Ct. App. | 1928
The appellant, Alfredo DiDonato, and one George Martin were jointly charged with and tried for the crime of murder. Each was found guilty of murder of the first degree, and life imprisonment was fixed as the penalty. From the judgment of conviction and the order denying his motion for a new trial DiDonato has taken this appeal.
The trial court charged the jury in effect that it should either find the accused guilty of first degree murder or acquit them of any offense whatever; and appellant's main contention on this appeal is that in thus restricting the issue before the jury, prejudicial error was committed, it being *368 claimed with respect thereto that the evidence adduced at the trial admitted of verdicts either of second degree murder or manslaughter.
Section
The record discloses that Robert Foote, the victim of the homicide, was shot and mortally wounded on the night of March 15, 1927, while guarding against an anticipated entry by burglars a building which housed one of several unused pumping plants constructed along the side of an irrigation canal in the sparsely settled regions of the west side of Fresno County. He was found wounded the next morning by a fellow employee, having been shot twice, once through the thigh and again through the left half of the back. He died a few days afterwards as the result of the wounds. There were no eye-witnesses to the crime, and the prosecution's case against DiDonato and Martin was based upon *369 circumstantial evidence; but in their defense the accused men took the witness-stand and admitted that Martin had shot Foote while Martin was reconnoitering about the premises in furtherance of a conspiracy which existed between the accused men to burglarize the place and steal therefrom the pumping apparatus, part of which they had stolen the night before. Appellant contends, however, that with respect to the night of the shooting no more than a preparation to commit burglary was shown, as distinguished from an attempt to commit such crime, and that consequently a case of first degree murder was not established.
Assuming the testimony given by appellant and Martin to be true, it reveals the following facts: They are brothers-in-law, and at the time of the homicide lived near the city of Fresno, many miles distant from the scene of the alleged crime. While hunting in the vicinity of said pumping stations, which were not being operated at the time, they conceived the idea to burglarize one of them and steal therefrom the pumping apparatus. Pursuant to such design they obtained iron clamps, cables, blocks and other paraphernalia with which to dismantle and remove the machinery, which weighed more than a ton. On the night preceding the homicide they drove to the pumping station and stole the electric motor. At the same time they detached the pump, hoisted it out of and suspended it above the well so that no unnecessary time would be consumed the following night, at which time they intended to return to dismantle and remove the same. Upon their return the next night Martin drove a Chevrolet car belonging to appellant and carried a loaded rifle, and appellant drove a small truck with a trailer attached. When they reached a point about three miles distant from the pumping station they stopped and Martin was told to go on ahead to ascertain if the way was clear to consummate the theft of the machinery and to see also whether their operations of the night before had been detected After some difficulty in locating the particular pumping station he was looking for he entered the yard thereof, which was inclosed with a barbed-wire fence, carrying his rifle in one hand and his electric flashlight in the other. He flashed his light through one of the windows of the station-house to confirm his belief, as he claims, as to the identity of the pumping-house, and almost instantly *370 Foote, who was concealed about the premises, shot at him. Martin fired in return; and in the exchange of the shots which followed, while Martin was attempting to reach the gate, Foote was wounded. Martin then fled, joined appellant down the road, and after telling him of the shooting they sped on to their homes near Fresno.
The rules prevailing in this state for determining whether the acts of a person extend beyond the point of preparation to commit an offense and amount to an attempt to do so are fully set forth and discussed in the case of People v. Lanzit,
[2] Applying the foregoing rules to the facts of the present case it is evident that the acts of the accused men went far beyond the point of preparing for a burglary, and constituted, at the time of the shooting, an attempted perpetration of such crime as that term is construed and given effect by the authorities above cited. The evidence supporting *372
this conclusion doubtless established a continuing conspiracy (People v. Schmidt,
[4] There was no element of self-defense presented in the case, and therefore the trial court was justified in refusing to give to the jury appellant's requested instructions upon that subject. The deceased was killed while lawfully engaged in repelling an invasion of property by one about *373
to commit a burglary, and under such circumstances it would be a strange doctrine which would allow a person thus engaged in such an unlawful enterprise to exculpate himself entirely from the consequences of his felonious act by proving merely that the person acting in the lawful defense of property fired the first shot. As held in People v. Perry,
[5] Nor do we find any error in the court's refusal to give appellant's proposed instructions concerning the presumptions of innocence and good character, and regarding circumstantial evidence, for the reason that the court's charge fully and fairly covered that field.
As to the final point urged, the case of People v.Kauffman,
No error in the trial of the action being shown, the judgment and order appealed from are affirmed.
Tyler, P.J., and Parker, J., pro tem., concurred.