*1 having his debt paid pariah, he shall he branded a holding contrary, to the to the of the court. satisfaction liberal the broad and majority to be oblivious to appear quoted sec- within above concept humanitarian embraced tions of our Penal Code.
Shenk, J., Schauer, J., concurred. 14, rehearing'was July Appellant’s for a petition denied for a J., Schauer, voted Carter, J., 1949. Shenk, J., rehearing. 15, 4969. In June No. Bank. 1949.]
[Crim. TUBBY, THE E. PEOPLE, Respondent, v. THOMAS Appellant. *2 Morgan William and James Richardson, James
Frank K. Kibby Appellant. O. for Attorney Maier, Dep- Howser, General, Doris H.
Fred N. Clyde Larimer, Attorney General, District Attor- uty H. ney, Respondent. for charged by grand
SHENK, The defendantwas J. stepfather County the murder of his jury of Glenn guilty pleaded guilty and not He Robert A. Fleenor. insanity. plea jury returned On the first reason of the trial guilty recommendation. On verdict of without the defendant was sane insanity plea the found that for a new A motion time the offense was committed. at the judgment reducing the modify motion to and a trial degree denied. The degree crime murder were to second penalty the death judgment imposing appeals are from denying the orders motions. and from the unlawfully that he appeal the defendant admits On the does His contentions are that the deceased. killed *3 degree; murder in the first that support a conviction of not attorney guilty prejudicial of misconduct was in district a the cross-examination of argument to the and in his prejudicial error the court committed witness, and that on refusing give requested motive. a instruction to 29-year-old undisputed. The defendant is a The facts are part of Cherokee-Choctaw agricultural worker uneducated weighs In the 175 pounds. 6 feet tall and He is extraction. intermittently mother, with Mrs. his years he resided past few deceased, in Fleenor, stepfather, and his Louelle County. Orland, city east of the of Glenn 1 mile Fleenor home years 82 a feeble man death, his Fleenor was time of At the During early pounds. less than 100 weighing age of and a near Orland as employed was 1948, the defendant fall of morning Septem- On the of and almond knocker. hand ranch He and to work his mother. 13, 1948, he was taken ber . couple named Martin and a man named coworkers, a three- o’clock, a working stopped half- began at about then Smith, quart sherry had of which the Martins later to drink a hour he to Orland where 10 o’clock Smith drove brought. About gallon half-gallon which a was con- sherry a of purchased quarts in At drank about two all. about The defendant sumed. Smith, believing defendant was Martins and that the 2:30, getting fearing might drunk on and he fall from a tree that which he was to him working, decided take home Smith’s car. Each he testified that the drunk but that defendant was straight tongue. walked and talked without thickness of On arriving at the home 3:30 Fleenor at about the defendant found his mother yard was there. not He went into the where he saw the working deceased. Two men on a house across street observed the his defendant strike with the deceased They fist. shouted at him he but claimed have heard them. He was then seen dragging the into the house. deceased One of the then, workers asked a neighbor police to call the and standing in front of home, thumping the Fleenor heard noises from within which continued for minutes. period a several given 15th, on signed September statement the defend- a yard that he walked toward ant stated deceased “just my fly came close off and and when he hauled let with had fist”; argument; been no a there that not word was that spoken attack; he prior to the that wasn’t “mad at” the only argument time, at the had had deceased that he occurred with Mr. Fleenor two or three months before over trimming hedge; striking that a after the deceased “began thinking once, thought he of what I had done I ’ dragged I take him into the he ’; better house that then “something house; deceased into he remembered about scuffling “may him stove”; around the he [the deceased] have hit him two three hit him or times” but that he did not anything fist; but that Mr. Fleenor ran in circles attempt escape futile but did not speak; “came over me me deceased side of and looked at I him again laying when did hit I and then see he was on coming .”; the floor and blood out his nose . . something I blow, snap with the final he “felt knew I had something, done I myself, come I before that was in a I stupor drunken and didn’t seem to know what was *4 doing”; pushed that he the then deceased with his foot in attempt get up; guessed an to make him that he he wanted to dragged through revive the deceased so him the house won- dering do; to seating what that he did not remember the rocking in a deceased chair where he was found when the The officers arrived. he he defendant stated was so drunk did not know he doing. what was plea
At the on the his trial first defendant contradicted voluntary September particulars, statement of 15th some
7.6 insanity plea retracted his denials the trial of on killing substantially accorded gave
and version of the which a prior statement. 15 minutes after first arrived police When the about walking rapidly from the was assault the defendant seen and came back to when ordered to do so stopped He house. fight of them and He then offered to one meet the officers. name,, subdued when the officer profane a but was called him: right hand An examination of the defendant’s struck him. moderately contused. The arrest- disclosed it swollen to.be sign no showed of ing officer testified intoxication. a condition found to be in semicomatose
The deceased was hospital He removed to physician when a .arrived. to skull day. of death was stated be basal Cause' died same hemorrhage. intercranial fractures and degree Generally of the' of the determination Eggers, (People jury. v. the discretion of crime is left to 1]; People Wells, 10 Cal.2d 685 P.2d v. 676, 30 Cal.2d [185 People Mahatch, 148 Cal. 200, 203 ; 610 P.2d v. [82 493] [76 jury’s absolute. Since discretion is not 779].) But P. the Penal Code in 1927 of 1181 of section the amendment modify reviewing are authorized courts trial courts and degree fix of crime in those a lesser judgment all the evidence there is appraisal an of where on instances of any the elements lacking substantial be found crime degree as fixed required of to constitute People (People Kelley, ; 208 387 P. v. Cal. jury. 609] [281 People Bender, 27 59, 21]; P.2d v. Holt, 90 v. Cal.2d [153 8].) P.2d 164, 186 Cal.2d [163 attorney general asserts that verdict support injuries as a result of continued multiple of the infliction unarmed, indicates an beating aged victim, frail and an pain inflict the defendant part on the intention reasonably torture be said to constitute suffering may Code, there- meaning the Penal of section within the by statutory degree decla- murder of the to result first fore primary argued is the defendant’s intention It ration. punishment purposes for or pain been to inflict must have revenge. deep-seated process or of inflict been defined as the “Act
Torture has punishment in order to extort con ing pain, esp. as a severe (2d ed.).) revenge.” (Webster’s Dict. fession, New Int. or enlarged dictionary appropriately definition was
77
163
Heslen,
opinion
People
v.
by
original
court in its
this
defini
following
“Implicit
that
21,
words:
P.2d
27
suffering
pain requirement
intent to cause
tion is
of an
killer is not satisfied
is,
That
addition to death.
vengeance on, or
execute
killing
punish,
alone. He wishes to
or as the
something
victim,
course,
in the
extort
from his
That
inflicting
the victim dies'.
pain
suffering,
result of
may
intent
be
of the acts
cir
manifested
the nature
(See disposition of
surrounding
cumstances
the homicide.”
250].) The
rehearing,
case on
520
P.2d
that
27 Cal.2d
[165
Supreme
Colorado
in similar terms
Court has declared
as an
as
pain
essential of
must be inflicted
physical
torture
revenge. (Townsend
means of persuasion, punishment or in
holding
v.
236].)
107
In
People,
258, 265
P.2d
Colo.
[111
by strangulation
necessarily
a murder
murder
was not
by torture
who,
this court
killer
heedless
has stated: “The
of
suffering
anger
victim,
of his
in hot
and with the
specific
pain
may
intent of killing, inflicts the severe
presumed
be
contempla
strangulation,
attend
has not in
tion of law the
strangles
same intent as one who
with the inten
tion that
Bender,
victim
(People
shall suffer.”
v.
Cal.2d 164,
177 [
In perpetrated whether the murder was by means torture of the solution must rest whether the intent suffering assailant’s was to cause cruel part on the object attack, purpose revenge, either for the extortion, persuasion, satisfy pro or to some other untoward pensity. The cannot merely test be whether victim suf pain fered presumably severe since in most murders severe pain precedes death. any explanation case the is devoid this record .might stepfather have
why defendant desired to suffer. testimony concerning only relationship between men was that deceased and defendant were on two prior Fleenor, terms to the amicable attack. Mrs. the defend mother, right ant’s stated that the defendant “is all when drinking ...” She isn’t testified further that the defend intoxicating liquor got ant “never used until 1938 when he got (Probably drunk that time and into that trouble.” refer ring previous manslaughter.) to a conviction of asked When replied: how the acts drunk, when she “Acts like any crazy An other drunk.” indication the defendant “fighting mood,” fight was in a anyone inclined almost primarily causing interested in the ultimate victim to suffer, is the fact fight that he offered arresting officer and had to be subdued apparent force. It is to admit of too serious doubt unprovoked assault was an act of fury produced animal when inhibitions were removed alco- hol. The dispels any hypothesis record primary that the pur- pose of the attack was to cause the deceased to suffer. When *6 death results under the circumstances here shown the homicide cannot be said to by constitute murder popular, torture the dictionary, legal or sense. The evidence is therefore insuffi- cient as a matter of support law to theory the verdict on the that the homicide by was murder torture.
The second basis on which attorney general rests his contention that this was degree first murder is that the killing was willful, premeditated. deliberate Again inadequate evidence is support to The contention. facts on which the attorney general supporting relies as his claim that Mr. Fleenor by was killed means of torture also are referred to as disclosing It argued deliberation. is delib that premeditation eration and are manifest in the circumstance dragged that defendant Mr. Fleenor into after the house striking him, away from the view of and interference neighbors, and in brutality beating. and duration of the determining whether the killing accompanied premeditated a deliberate and intention life to take such previous as the circumstances relations between defendant and the victim, the actions of the defendant before as well killing, as at time of the and the means which the accomplished, important. homicide is only are The relationship the record as to the between the defendant stepfather testimony his is the of Mrs. Fleenor and the state- ment of the defendant himself. When asked Mr. whether “got along” Fleenor and the defendant Mrs. Fleenor an- swered : “Mr. Fleenor never said anything about him [the ’’ or him except friendly way. to in a defend- The defendant] ant he wasn’t
stated “mad at” the deceased. At no time while in the company of the Martins and Smith the hours preceding the crime did suggest he defendant' con- that templated attacking the deceased or even mention him. Even if we entirely, disbelieve jury might, as the the defendant’s assertion that he was so drunk that he did know what doing, he was drinking it is clear that his affords the sole explanation for his perhaps atrocious It a conduct. is rea- sonable inference that dragged defendant the deceased inside the house by neigh- to continue his unmolested assault infer- the further not warrant would bors, but itself kill his he set about intent preexisting ence that with a circumstances effect of all stepfather. cumulative The on any possibility negative seems to any before or at design produce death a reflection formed stage the incident. entitled to that he is the defendant
Contentions of the district attor alleged misconduct new trial because In the course of substance. ney at the trial are without attorney stated argument jury the district closing crazy up his once he made the defendant: “He went blood he used completed it and then act, mind to commit prosecu states that his fist.” Counsel for the defendant argue same which tion was thus enabled to before the insanity, “the defendant guilt tried the issues of others,” for to the purposes was sane for some insane crazy” is a col “blood prejudice. phrase defendant’s loquialism condition. perhaps described the defendant’s prejudiced It so say would be absurd to its use require defendant’s case as to a new trial. attorney asked impeachment purposes
Por the district *7 pre the on he had been cross-examination whether viously felony, of felony, convicted of a the nature the objection then, counsel, over the the where defendant’s impossible he was It convicted. is to believe that the defend ques prejudiced any way by single ant was additional the prose tion as to where Had the the defendant was convicted. chosen, felony cution proved it could the conviction have 2051) judgment (Code Proc., the record of the Civ. § would have place disclosed the of conviction. refusing charge
As to the trial court erred give appears to it defendant’s offered instruction on motive subject fully from the record that of motive was covered by an given. instruction which was support
The verdict of evidence is insufficient to unquestion degree, conviction of murder is the first it ably support degree sufficient to a conviction of second murder, and granted the trial have the motion court should modify judgment. unnecessary to it is reverse However to denying order that motion for the reason that this court has the power appeal, on this under 1181 of the Penal section Code, accomplish by modifying judg to proper result ment and affirming it as modified.
Accordingly: denying The order the motion for a new 80 judgment reducing
trial is The is modified affirmed. degree degree of the crime to murder of second as so judgment The cause modified the is affirmed. is remanded to the trial court with directions to sentence the defendant to imprisonment prescribed by for the law for murder of time degree. the second J., J., J., J.,
Gibson, Carter, Schauer, Traynor, C. con- curred.
SPENCE, Concurring Dissenting. agree While I J., majority opinion, with certain in the conclusions reached I agree with the conclusion the evidence insuffi cannot is support degree the conviction of first cient murder. ‘‘ majority The unquestionably concede the evidence is support degree sufficient to a conviction of second murder.” In other it words, ample is conceded there is evidence charge sustain the unlawfully that defendant killed the aforethought (Pen. deceased with malice Code, §187). But majority sup- conclude that is insufficient to port degree because, the conviction murder first it asserted, is there is neither evidence of torture nor delibera- premeditation. (Pen. Code, 189.)- tion is from this It § dissent, last mentioned I conclusion that must as well as from the decision judgment which modifies the of the trial court reducing degree of the crime to murder of the second degree.
It would purpose serve no useful forth the evidence set in elaborate detail. A brief summarization and a statement of a few salient facts should suffice. strong, young weigh-
Defendant, years, was a man of 29 who previously had pounds, and who been convicted of ing 175 manslaughter, brutal, administered a fatal beat- the crime of elderly victim, frail, years, who was a man of 82 ing upon his unprovoked weighing pounds. attack was and con- period of It tinued over a about minutes. two phases. Defendant administered the first blow distinct *8 yard neighbors in the behind house. When the his victim then, according defendant, shouted his statement to at (the testimony, “drug and to his own sworn him police deceased) yard the hair ... of his head” from the into the house. The various rooms of the house were the scenes phase attack, second of the which lasted of the until being neighbors. officersarrived after There summoned eyewitnesses neigh- phase were no to this of the attack but bumping thumping he heard noises bor testified that gave vary- inside house for 10 or 15 minutes. Defendant ing telling differ- house, accounts of the occurrences within following second, ent first, arrest; stories: to the officers his upon issue; upon of the main third, trial the trial insanity plea. discrepancies of the When confronted with these upon insanity plea, asked, the trial of the he was “What is changing your story the reason for ”; answered, ? to which he may “It benefit me.”
The clearly evidence indicates that defendant chased his victim about inflicting punishment upon the house terrific him. porch, There blood on the and on the walls and practically floor of every room in the house. The stove and stovepipe had been knocked out place and some of the furniture during had been affray. broken When the offi- they cers arrived, found “practically deceased had been beaten beyond recognition.” Physical examination showed that deceased’s nose “was flat”; eyes crushed almost were shut; swollen that there was a jaw fracture of the lower a complete fracture upper jaw; of the that there were several fractures of skull; that the brain had been “split com- pletely open” literally pulverized “was over the back portion of the two frontal injuries sinuses.” Other were described the doctors, including injuries, abdominal the foregoing recital sufficiently severity shows nature and resulting damage. The doctors further testified that damage this was far more extensive than is found as the result of a fall. question not finding
Defendant does that he was sane when he committed attack, this fiendish and the only extenuating circumstance which he now relies is his claim that he was drunk as the time. The vice of the majority opinion accepts rests the fact that it as prac- true tically all of the evidence of regarding defendant’s witnesses drinking ignores extent of defendant’s the direct con- flict in relating the evidence to his condition at the time in question. arresting officers and the officers who talked immediately following his arrest testified that he was drunk, and that he did any sign not show testimony intoxication. This of the officers finds corroboration ability defendant’s to relate, when he so, saw fit to do details of the struggle, and also in some of given the by defendant’s own witnesses. All conceded that defendant *9 tongue. thickness of straight
walked and that talked without he witnesses admitted cross-examination, On one of defendant’s he was taken yet when defendant “was not drunk” that defendant say home. couldn’t that Another admitted that she entirely justified in was jury “drunk.” The was therefore regarding disbelieving testimony witnesses of defendant’s in done, had and drinking amount of which defendant was concluding drunk when the crime that defendant was not province not the circumstances, committed. Under it is these conflicting and to reviewing weigh a court accept has been as true which the defendant’s evidence rejected by jury. justified concluding jury was
Assuming then that insane nor drunk that neither that defendant time that he for his acts at the responsible was therefore opinion I am of the murder, that committed the concluding guilty defendant was justified in that was further appears ample degree. The evidence the first of murder of torture, was committed murder both that the to show a premeditated. This was not situa was deliberate that it strangu by single act, a such as was caused tion in which death necessarily murder majority is “not lation, which the states pro a in which there was it was a situation by torture,” but involving numerous, blows, merciless which longed attack during interval phases by the into two attack was broken his head dragged deceased the hair of defendant Accepting the set forth house. tests yard from the into the concluding justified majority opinion, jury was here ‘ pain suffering in addi intent cause that there was an death”; “the killer not satisfied tion to [was] to cause killing alone”; “the assailant’s intent was object If suffering part of the of the attack.” cruel on the person by hair the head for a con dragging of a beating, prolonged of a during progress siderable distance victim, is insuffi such as inflicted finding necessary intent to torture cient to sustain (that suffering in addition to is, pain cruel to cause majority death), would it is difficult where to determine justified Furthermore, jury was likewise draw the line. finding the interval between from all the evidence remaining yard the first blow in the and the blows delivered gave deliberation and ample delivered in the house time for proceeded thereafter premeditation, and that defendant aforethought” victim, (Pen. kill his not alone malice “with Code, 187), premedita deliberation and also with that § tion which characterizes the crime as murder of the first degree. (Pen. Code, 189.) § judgment of conviction and the both the my opinion, for a new trial should be affirmed. denying the motion
order J., Edmonds, concurred. *10 17, June A. 20920. Bank. No. 1949.]
[L. THE RAIDEN, Petitioner, v. SUPERIOR EDWARD al., et OF LOS ANGELES COUNTY COURT Respondents.