THE PEOPLE, Plaintiff and Respondent, v. JAMES EDWARDS WASHINGTON, Defendant and Appellant.
Crim. No. 8528
In Bank. Supreme Court of California
May 25, 1965.
62 Cal. 2d 777
Stanley Mosk and Thomas C. Lynch, Attorneys General, William E. James, Assistant Attorney General, and Gordon Ringer, Deputy Attorney General, for Plaintiff and Respondent.
TRAYNOR, C. J. — Defendant appeals from a judgment of conviction entered upon jury verdicts finding him guilty of first degree 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 Cal.App.2d 330 [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 Podolski cases 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 limited the Almeida and Podolski cases by holding that surviving felons are not guilty of murder when their accоmplices 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 reasonably be based on such a fortuitous circumstance. The basic issue therefore is whether a robber can be convicted of murder for the killing of any person by another who is resisting the robbery.
“Murder is the unlawful killing of a human being, with malice aforethought.” (
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 the felony-murder rule is to deter felons from killing negligently or accidentally by holding them strictly responsible for killings they commit. (See Hоlmes, 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 not 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 ovеr 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 conduct, 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,
Defendants who initiate gun battles may also bе 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 invoking 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 Honore, 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 killing 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 kills him. Neither robber may have fired a shot. Neither robber may have been armed with a deadly weapon. If the felony-murder doctrine applied, how-
The felony-murder rule has been criticized on the grounds that in almost all cases 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 (
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,
Defendant‘s testimony was corroborated by the testimony 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];
The judgment is affirmed as to defendant‘s conviction of
Peters, J., Tobriner, J., Peek, J., and White, J.,* concurrеd.
BURKE, J.—I dissent. The unfortunate effect of the decision of the majority in this case is to advise felons:
“Henceforth in committing certain crimes, including robbery, rape and burglary, you are free to arm yourselves with a gun and brandish it in the faces of your victims without fear of a murder conviction unless you or your accomplice pulls the trigger. If the menacing effect of your gun causes a victim or policeman to fire and kill an innocent person or a cofelon, you are absolved of responsibility for such killing unless you shoоt first.”
Obviously this advance judicial absolution removes one of the most meaningful deterrents to the commission of armed felonies.
In the present case defendant‘s accomplice was killed when the robbery victim fired after the accomplice had pointed a revolver at him. In People v. Harrison (1959) 176 Cal.App.2d 330 [1 Cal.Rptr. 414] (hearing in Supreme Court denied without a dissenting vote), the rationale of which the majority now disapprove, the robbery victim was himself accidentally killed by a shot fired by his employee after defendant robbers had opened firе, and the robbers were held guilty of murder for the killing. The majority now attempt to distinguish Harrison on the ground that there the robbers “initiated” the gun battle; in the present case the victim fired the first shot. As will appear, any such purported distinction is an invitation to further armed crimes of violence. There is no room in the law for sporting considerations and distinctions as to who fired first when dealing with killings which are caused by the actions of felons in deliberately arming themselves to commit any of the heinous crimes listed in Penal Code section 189. If a victim—or someone defending the victim—seizes an opportunity to shoot first when confronted by robbers with a deadly weapon (real or simulated), any “gun battle” is initiated by the armed robbers. In such a situation application of the felony-murder rule of section 189 of the Penal Code supports, if not compels, the conclusion that the surviving robbers committed murder even if the lethal bullet did not come from one of their guns,
*Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.
Section 187 of the Penal Code declares that “Murder is the unlawful1 killing of a human being, with malice aforethought.” Section 188 states that “Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away ... life. ... It is implied ... when the circumstances attending the killing show an abandoned and malignant heart.”
Section 189 specifies that “All murder which is perpetrated by ... any ... kind of wilful, deliberate, and premeditated killing, or which is committed in the perpetration or attempt to perpetrate ... robbery [or five other named felonies2], is murder of the first degree. ...”
So heinous has the Legislature considered murders in the perpetration of these offenses that it grouped them with murder by means of poison, lying in wait or by torture, and, fundamentally, the law in this respect has remained unchanged for more than one hundred years. (Stats. 1850, p. 231; Stats. 1856, p. 219; now
In People v. Milton (1904) 145 Cal. 169, 171-172 [78 P. 549], the court pointed out that a killing is unlawful which is “perpetrated in the performance or attempt to perform one of these felonies, and the malice of the abandoned and malignant heart is shown from the very nature of the crime” the defendant is attempting to commit. Thus the killing is established as murder under section 187, in the light of the definition of malice found in section 188, and section 189 makes it first degree murder. Therefore, held the court, even if the killing be accidental or unintentional, if committed in the attempt to perpetrate one of the felonies named in section 189 it is first degree murder.
This principle has been repeatedly upheld by this court (seе People v. Raber (1914) 168 Cal. 316, 318 [143 P. 317]; People v. Witt (1915) 170 Cal. 104, 107-108 [148 P. 928]; People v. Denman (1918) 179 Cal. 497, 498-499 [177 P. 461]; People v. Boss (1930) 210 Cal. 245, 249 [290 P. 881]; People v. Valentine (1946) 28 Cal.2d 121, 135 [169 P.2d 1]; People v. Coefield (1951) 37 Cal.2d 865, 868 [236 P.2d 570]), and is expressly recognized by the majority in the instant case with the declaration (ante, p. 781) that “inadvertent or acci-
Despite these declared principles—long established and effective in their deterrence of crimes of violence—the majority now announce (ante, p. 781) that “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. ... Section 189 requires that the felon or his accomplice commit the killing, for if he doеs not, the killing is not committed to perpetrate the 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.” (Italics added.)
But section 189 carries not the least suggestion of a requirement that the killing must take place to perpetrate the felony. If that requirement now be read into the section by the majority, then what becomes of the rule—which they purport to recognize—that an accidental and unintentional killing falls within the section? How can it be said that such a killing takes place to perpetrate a robbery?
Moreover, as already noted, the malice aforethought of the abandoned and malignant heart is shown from the very nature of the crime, here armed robbery, the defendant is attempting to commit. (People v. Milton (1904) supra, 145 Cal. 169, 171-172.) This truism was confirmed in People v. Bostic (1914) 167 Cal. 754, 761 [141 P. 380], wherein the court pointed out that the argument that to be first degree murder a killing during robbery must be planned as a part of the scheme, carries its own refutation, “for it must be apparent that without reference to the robbery such a murder would be a ‘wilful, deliberate and premeditated killing,’ and hence, first degree murder; further, said the court, “The moment [defendant] entered that [train] car with a deadly weapon in his hand, with the purpose of committing robbery, the law fixed upon him the intent which would make any
A homicide which arises out of an attempt at armed robbery is a direct causal result of the chain of events set in motion by the robbers when they undertook their felony. When a victim fires the lethal bullet, whether or not he fires first, the killing is caused by the act of the felon and the felon is as responsible therefor as when the firing is by his accomplice or when it is accidental or unintеntional.3 The majority suggest (ante, p. 782), “it is unnecessary to imply malice by invoking the felony-murder doctrine” where the robber “initiates” a gun battle by shooting first. This suggestion by the majority, I respectfully submit, emphasizes the inconsistency of their opinion. First they declare (ante, p. 781) that “When a killing is not committed by a robber ... but by his victim, malice aforethought is not attributable to the robber, for the killing is not committed by him in ... robbery.” (Italics added.) Later they state (ante, p. 782) that “Defendants who initiate gun battles may also be found guilty of murder if their victims resist and kill ... and it is unnecessary to imply malice by invoking the felony-murder doctrine.” (Italics added.)
Even if, as the majority suggest (ante, p. 782), it is unnecessary to imply malice by invoking the felony-murder doctrine where the robber shoots first, that doctrine can and should be invoked in a case in which, as here, a robber with a gun in his hand confronts a victim who can and does resist by firing the first shot. In such a case, the robber “initiated” the criminal plan, he “initiated” it by wilfully, maliciously and wantonly putting the victim in fear of his life, and he “initiated” any resultant shooting, whether by his gun or that of the victim. Where the victim is in a position to shoot first and his bullet kills, the killing should be viewed in law and in fact as having been “committed” by the robber (as it was in People v. Harrison, supra, 176 Cal.App.2d 330), and application of the felony-murder rule to such circumstances is, in my view, exactly the sort of “rational function that it is designed to serve“—in the phrasing of the majority (ante, p. 783).
Extreme examples may be imagined in which the application of a rule of criminal liability would appear manifestly unjust. However, when this court and others have been faced with such an example exceptions have been made to avoid an unconscionable result. To reject invocation of the felony-murder rule here, as do the majority (ante, pp. 782-783), because of possible harshness in its application in other circumstances, for example, to fleeing robbers who are not armed, dilutes the enforcement of criminal responsibility. The case anticipated and the injustice sought to be protected against by the majority are not before us, and can best be dealt with when and if encountered. It may be observed, however, that robbers are not compelled to flee and thus to be shot at endangering themselves and others. They need only surrender, as many have done, to avoid death, to themselves or others,
I agree with the majority (ante, p. 781) that one purpose of the felony-murder rule is to deter felons from killing negligently or accidentally. However, another equally cogent рurpose is to deter them from undertaking inherently dangerous felonies in which, as the majority state (ante, p. 781), a “killing was a risk reasonably to be foreseen. ... In every robbery there is a possibility that the victim will resist and kill.” As declared in People v. Chavez (1951) 37 Cal.2d 656, 669 [234 P.2d 632], “The statute [
But, say the majority, “The robber has little control over such a killing once the robbery is undertaken,” and “To impose an additional penalty for the killing would discriminate between robbers, not on the basis of any difference in their own conduct, but solely on the basis of the response by others that the robber‘s conduct happened to induce.” (Ante, p. 781). A robber has no control over a bullet sent on its way after he pulls the trigger. Certainly his inability to recall it before it kills does not cloak him with innocence of the homicide. The truth is, of course, that the robber may exercise various “controls over” a possible killing from his victim‘s bullet “once the robbery is undertaken.” The robber can drop his own weapon, he can refrain from using it, he can surrender. Other conduct can be suggested which would tend to reassure the victim and dissuade him from firing his own gun. Moreover, the response by one victim will lead to capture of the robbers, while that of another victim will permit their escape. Is the captured felon to be excused from responsibility for his crime, in order not to “discriminate between robbers ... solely on the basis of the response by others that the robber‘s conduct happened to induce“?
I would hold, in accord with the rationale of People v. Harrison, supra (1959) 176 Cal.App.2d 330, that the killing is that of the felon whether or not the lethal bullet comes from his gun or that of his accomplice and whether or not one of them shoots first, and would affirm the judgment of conviction of murder in the instant case.
McComb, J., concurred.
Respondent‘s petition for a rehearing was denied June 23, 1965. Mosk, J., did not participate therein. McComb, J., and Burke, J., were of the opinion that the petition should be granted.