Opinion
Rehearing Denied Sept. 15, 1934.
Hearing Granted by Supreme Court Sept. 28, 1934.
Appeal from Superior Court, Mendocino County; W. D. L. Held, Judge.
Charles Miller was convicted of an attempt to commit murder, and he appeals.
Affirmed.
COUNSEL
Wayne P. Burke, of Ukiah, for appellant.
U.S. Webb, Atty. Gen., and Ralph H. Cowing, Deputy Atty. Gen., for the People.
OPINION
Mr. R. L. THOMPSON, Justice.
The defendant has appealed from a judgment of conviction of an attempt to commit murder and from an order denying his motion for a new trial.
The information was first filed against the defendant charging him with an assault to commit murder under the provisions of section 217 of the Penal Code. Prior to the acceptance of the defendant’s plea, the information was amended under section 1008 of the same Code to charge the defendant with a mere attempt to commit murder as distinguished from an assault to commit that same crime. The amended information "accuses Charles Miller of a felony, to-wit: Attempt to Commit Murder, in that on or about the 17th day of March, 1934, in the County of Mendocino, State of California, he did, then and there, wilfully, unlawfully and feloniously, attempt to murder one Albert Jeans." The defendant failed to demur to the amended information, but he did object to the introduction of evidence at the trial on the ground that the pleading fails to state facts sufficient to constitute a public offense. The objection to the evidence was overruled. At the close of the testimony adduced by the prosecution, the cause was submitted without the introduction of evidence on the part of the defendant. The jury returned a verdict of guilty as charged. A judgment of conviction was accordingly rendered. From this judgment and from an order denying defendant’s motion for a new trial he has appealed.
Appellant contends that the information is fatally defective for the reason that it fails to allege facts constituting an overt act or specifying the instrument or means by which the attempt to murder was made. It is further asserted the verdict and judgment are not supported by the evidence chiefly because it fails to furnish proof of facts which constitute an overt act as distinguished from mere preparation to carry out his threat to murder Albert Jeans, and that the court erred in giving and in refusing to give to the jury certain instructions.
The record shows that the defendant and Albert Jeans, who is a negro, had been friends and had associated together prior to the difficulty which led to the alleged assault. Jeans also had a brother who lived with him. The defendant is married and lives on a farm near Boonville in Mendocino county. Jeans had often eaten meals with the defendant at his home. Miller sometimes drank to excess. He complained to friends that the negro had "bothered" his wife, although it does not appear that he had ever complained to Jeans or to any officer on that account. Just prior to the alleged assault, Jeans, who had lived in that community most of his life, was taken into custody by the officers for drunkenness. All that appears in regard to that charge is that Mr. Ornbaun testified the officers took him into court and asked him if he had been drinking. Upon admitting that he had been drinking, he was asked if he thought he could keep sober. He assured them that he could keep sober, and the officer then said, "You go home and keep sober or we will send you to the asylum." Thereupon Jeans was discharged from custody.
About 3 o’clock on the day of the alleged assault the defendant met Ornbaun in company with several other persons at the post office in the town of Boonville. The defendant was somewhat under the influence of liquor. Addressing Ornbaun with relation to the previous discharge of Jeans from custody, under the circumstances above related, the defendant said: "If the people here look at things like that, I am going to take the law in my hands; * * * I am going to kill the G__-d d__-ed nigger. * * * I am going to kill both of them; I am going to kill George (the brother of Jeans) too." This threat was repeated several times. Four disinterested witnesses testified to that fact. He was warned against making the felonious threats. At noon that day the defendant appeared to be under the influence of liquor; Mr. Tolman testified that "he appeared to be well liquored up."
About 4 o’clock that afternoon, while Mr. Ginochio, in company with Mr. Jeans and three other men, was engaged in planting hops on his ranch a mile and a quarter from Boonville, he observed the defendant coming from the highway through the field armed with a rifle. Ginochio was a constable in that township. He was well acquainted with the defendant, but had not heard of his previous threats to kill Jeans. When he first saw the defendant approaching, he was 250 or 300 yards away, and Jeans was working at a point about 30 yards beyond him. He testified in that regard: "Q. Was he (Jeans) nearer the defendant than you were? A. No, I was the closest." The defendant came straight across the field on a direct line toward Ginochio and Jeans. When the defendant reached a point 100 yards away he stopped and appeared to load his rifle. Ginochio said in that regard, "Looked to me like he was loading a gun." A witness by the name of Jack who was working in the field corroborated that fact in the following language:
"He came along and stopped and looked at his gun like doing something before he came up. * * *
"Q. Looked like he was loading the gun? A. Yes."
The defendant had a handful of loaded cartridges. When the negro saw the defendant approaching with a gun at a distance of 200 yards, he fled in the opposite direction. Ginochio testified:
"I kept my eye out on him and when he came up I got up and grabbed the gun.
"Q. And you took hold of the gun? A. Yes.
"Q. Grabbed it with both hands? A. No, one hand.
"Q. Did Mr. Miller offer any resistance or attempt to hold onto the gun? A. He did not.
"Q. He turned it loose? A. Yes."
The defendant then claimed the gun was not loaded. Ginochio opened the breach and took out a loaded 22-caliber long cartridge, which he exhibited to the defendant who said, "he just changed shells because when he shot a nigger, or when he shot a black s__-n of a b__-ch he wanted something that would go through him." Other witnesses corroborated the evidence of his threat to shoot the colored man, and also the fact that the officer took the gun away from him. Miller then left the field and an hour or so later was arrested at his home and taken in custody by the constable and Mr. Tolman. On the way to the county jail at Ukiah the defendant said to the officers "he didn’t give a G__-d d__-n-that if the Judge turned him (the defendant) loose he would kill two niggers-two black s__-ns of b__-ches." Later he sent by his wife a note to the officers demanding the return of his rifle. The note read: "I want you to give my gun to May. Tomorrow there will be two niggers less in this valley."
We are of the opinion that in the absence of a demurrer, the amended information conforms to the provisions of sections 950-952 of the Penal Code and sufficiently alleges facts constituting the public offense of an attempt to commit murder. In other words, the information does state a public offense, and the defendant by failing to demur waived his objection to the omission to allege specific acts constituting the overt act and to the failure to mention the instrument or means by which the alleged attempt to murder was sought to be accomplished.
Section 952 of the Penal Code was amended in 1929 (St. 1929, p. 303) to dispense with technical forms of criminal complaints and to authorize the use of simpler pleadings. Prior to that amendment the section required the charge to be "direct and certain." It was then necessary to allege "the particular circumstances of the offense charged, when they are necessary to constitute a complete offense." Since the amendment of that section, it is specifically provided therein that the charge "shall be sufficient if it contains in substance, a statement that the accused has committed some public offense therein specified . * * * It may be in the words of the enactment describing the offense or declaring the matter to be a public offense, or in any words sufficient to give the accused notice of the offense of which he is accused." It has been held that the allegations of an information are adequate which merely charge an accused of willfully, unlawfully and feloniously murdering another. People v. Magsaysay, 210 Cal. 301, 281 P. 582. On the same principle it is sufficient that the defendant was charged in the present case with the willful, unlawful, and felonious attempt to murder Albert Jeans.
Assuming, without so deciding, that the information in the present case might have properly included a statement describing the overt act or designating the instrument or means by which the attempt to commit murder was accomplished, those specifications were waived by failure of the defendant to demur or move to quash the information. People v. Perfetti, 88 Cal.App. 609, 616, 264 P. 318; People v. Mead, 145 Cal. 500, 78 P. 1047.
It is true that under particular statutes in other jurisdictions it has been held that indictments for attempts to commit prohibited offenses should allege the overt act or the specific means by which the attempt is sought to be accomplished (1 Wharton’s Criminal Law [11th Ed.] p. 302, § 231; 31 C. J. 742, § 292), although it is said in the authority last cited: "However, in many cases based upon statutes punishing attempts, it is held sufficient to follow the language of the statute without an averment of the particular manner in which the attempt was made."
In 14 Ruling Case Law, p. 185, § 31, it is said in opposition to the general rule above mentioned: "There are decisions to the effect that as an attempt implies both an intent and an actual effort to consummate the intent, an indictment charging an attempt is sufficient without alleging the particular acts constituting the attempt." Some authorities distinguish between an assault with intent to commit a specified crime and a mere attempt to commit the offense. In 2 Wharton’s Criminal Law (11th Ed.) p. 1060, § 843, it is said: "In an indictment for an assault with intent to murder, at common law, or under a statute which does not specify the instrument, it has been held unnecessary to state the instrument or means made use of by the assailant to effectuate the murderous intent. * * * The details of effecting the criminal intent, or the circumstances evincive of the design with which the act was done, are considered matters of evidence to the jury to establish the intent, and not necessary to be incorporated in the indictment."
In the Matter of Hughes, 159 Cal. 360, 113 P. 684, 685, an information was upheld which charged that the defendant "did willfully, unlawfully, and feloniously and with malice aforethought assault one Caesar Vervoort, a human being, with a deadly weapon, with intent then and there him, the said Caesar Vervoort to kill and murder." The court said: "This was a sufficient description of the offense of assault with intent to commit murder. It was not necessary to further describe the weapon alleged to be ‘deadly.’ * * * The use of a weapon need not have been mentioned at all ."
The amended information in the present case, in the absence of a demurrer thereto, sufficiently charges the defendant with the public offense of an attempt to commit murder.
The record contains sufficient evidence of overt acts on the part of the defendant to prove his intent to murder Albert Jeans, as distinguished from mere preparation therefor. The defendant repeatedly threatened to kill the negro. Within an hour or two thereafter he armed himself with a rifle and walked more than a mile to the field where the negro was working. He left the highway and went directly through the field towards the point where Jeans was plainly visible. He stopped on his way through the field to load the rifle with a 22-caliber long cartridge, saying, "when he shot a black s__-n of a b__- ch, he wanted something that would go through him." He approached to within a distance of 200 yards from the negro. Mr. Jack testified in that regard:
"Q. Was Jeans out in sight where he could shoot him if he wanted to?
A. Yes. * *
"Q. How far would you say it was between Mr. Miller and Mr. Jeans when Mr. Jeans was going down towards the Hogan field?
A. Must be about couple of hundred yards, I think."
As the defendant approached towards the negro, Mr. Ginochio, who occupied a position in line between them, was bending over planting hop vines. He continued in that position, keeping an eye on the defendant, until he reached the point where he stood, then he arose and seized the gun. In the meantime the negro fled in the opposite direction towards the Hogan field. It is true that the defendant did not raise his gun to fire upon Jeans, nor did he resist the officer when the gun was seized, although he did demand the return of the rifle and he asked the officer if he was taking possession of the gun as a deputy sheriff. Having been frustrated in his pursuit of the negro, the defendant then left the field and went away. He did, however, subsequently threaten to kill Jeans. It is claimed this conduct consists merely of preparation to kill as distinguished from an actual attempt to do so. It is asserted that the fact that the defendant was within 200 yards of the negro where he might have killed him and that he did not raise his rifle or fire upon him, proves that he had no intention of murdering him. The intention with which one performs an act is manifested by the surrounding circumstances. Section 21, Pen. Code. It was the province of the jury to determine from the facts and circumstances of the case the intention with which the defendant threatened and pursued the negro. It seems quite likely that the defendant would have fired his rifle except for the fact that Jeans fled from the field when he saw him load the gun and approach directly toward him to within a distance of 200 yards, and that the officer then took possession of the gun. The jury was warranted in believing that the reason he did not fire upon the negro was that he was waiting for a better opportunity when he had arrived close enough to make more certain of his aim. The jury may also have assumed that the defendant did not observe Ginochio as he stooped over in the field, or that he did not recognize him as an officer until he came upon him when the gun was seized. It is not inconsistent with his purpose to kill the negro that the defendant did not resist the officer when Ginochio took the gun away from him.
It is necessary that evidence of some overt act on the part of the accused as distinguished from acts of mere preparation therefor be adduced in support of the charge of an assault to murder. But when the intent to kill is satisfactorily proved, a court should not be extremely technical in distinguishing between acts in furtherance of the crime and those which may be deemed to be merely preparatory therefor. We are convinced that the conduct of the defendant in the present case constitutes overt acts performed in the actual process of carrying out his threat to kill Albert Jeans, and that the charge of an attempt to commit murder is satisfactorily supported by the evidence. The circumstances which may be deemed to constitute overt acts towards the commission of a crime depend largely upon the facts of a particular case. It is said in 8 Ruling Case Law, p. 279, § 297, in that regard:
"In order to constitute an attempt it is essential that the defendant, with the intent of committing the particular crime, should have done some overt act adapted to, approximating, and which in the ordinary and likely course of things would result in the commission thereof. Therefore, the act must reach far enough towards the accomplishment of the desired result to amount to the commencement of the consummation. It must not be merely preparatory. In other words, while it need not be the last proximate act to the consummation of the offense attempted to be perpetrated, it must approach sufficiently near to it to stand either as the first or some subsequent step in a direct movement towards the consummation of the offense after the preparations are made. Whenever the design of a person to commit crime is clearly shown, slight acts done in furtherance of that design will constitute an attempt, and the courts should not destroy the practical and common sense administration of the law with subtleties as to what constitutes preparation and what an act done toward the commission of a crime.
"It would be useless to attempt to lay down any rule by which an act might be characterized as overt or otherwise in a particular case, and the general principles of law concerning attempts must be applied in each case as nearly as can be with a view to working substantial justice."
The appellant contends that the court erred in giving to the jury certain instructions to the effect that the attempted murder with which he was charged is sufficiently established by proof of overt acts which would make him guilty of murder if they had resulted in the death of Albert Jeans. In other words, it is asserted these challenged instructions fail to inform the jury that an attempt to murder may be sustained only upon affirmative proof of the actual intent of the accused to murder his victim. It is true that one may be guilty of murder of the second degree without having actually intended to kill his victim. On the contrary, to sustain a charge of attempt to murder, it is necessary to prove that the accused actually intended to murder the person assailed. People v. Mize, 80 Cal. 41, 22 P. 80; 7 Cal.Jur. 875, § 31; 1 Wharton’s Criminal Law (11th Ed.) p. 305, § 234. We are of the opinion the challenged instructions are not prejudicially erroneous. The jury was repeatedly and clearly instructed that an intention to murder is a necessary element of the crime of attempting to murder. In half a dozen instructions the principle of law was announced to the effect that the guilt of the defendant depends upon proof that he "intended to murder Albert Jeans." It seems incredible to assume that the jury could have misunderstood these instructions in that regard. The jury was not charged directly or otherwise that the mere proof of overt acts on the part of the defendant which would have rendered him guilty of murder in the event of the death of Jeans was sufficient upon which to warrant a conviction of an attempt to commit murder. It is true that the jury was instructed specifically regarding the elements constituting both the first and the second degrees of murder, together with definitions of premeditation, deliberation and malice. The jury was not specifically told that an accused might perform certain acts which would render him guilty of murder of the second degree provided they resulted in death even though he did not intend to kill his victim. The defendant failed to offer any instruction on that subject. Acts which would amount to the commission of murder in the event of death were necessary elements of the crime of an attempt to murder. It was essential and proper to instruct the jury on that subject. The challenged instructions merely purport to charge the jury in general terms as to what constitutes murder of the first and second degree, together with the essential elements thereof. Those particular instructions do not purport to define the crime of attempting to commit murder. They begin, "Murder is defined by our law to be the unlawful killing of a human being with malice aforethought." These definitions were absolutely necessary to an intelligent understanding of the nature of the offense with which the defendant was charged. They were neither prejudicial nor erroneous.
After the jury was instructed with respect to murder, together with justifiable and excusable homicide, the court charged the jury that the defendant was accused of "an attempt to murder," and that they could not find him guilty of that charge unless it was proved beyond a reasonable doubt that his acts amounted to more than a mere preparation to commit the crime of murder. They were then told that if it appears that the defendant procured a gun "and loaded the same intending to murder Albert Jeans, but that he did nothing further toward carrying out such intention ," they should find the defendant not guilty. Then follows a particular instruction which is challenged by the appellant as erroneous. It reads as follows: "I instruct you, members of the jury, that an attempt to commit a crime is an endeavor carried beyond mere preparation but falling short of execution of the ultimate design . It is an act immediately and directly tending to the execution of the principal crime and committed by a person under such circumstances that he had the power of carrying his intention into execution, and would have done so but for some intervening cause."
The preceding instruction refers directly to the necessary element of an attempt to murder. It is predicated on the assumption that the defendant loaded the gun "intending to murder Albert Jeans." The jury must have so understood this instruction. It clearly infers that the attempt to murder is not sustained unless the intention to kill is established. This necessity is again inferred by reference to "the ultimate design" to murder. This construction is supported by the further statement therein contained to the effect that it must also appear that the accused "had the power of carrying his intention (to murder) into execution." We are of the opinion this instruction is not prejudicially erroneous. The following instruction with reference to the distinction between overt acts which may be deemed to be in furtherance of the crime as distinguished from those which are merely preparatory thereof, refers twice to the "intended crime." The next instruction is unambiguous and proper. It asserts that the overt acts which must be proved shall "reach far enough toward the accomplishment of the intended offense " to become a part of its consummation. The following instruction informs the jury that the mere procuring and loading of a gun does not constitute sufficient proof of an attempt to murder, but that if in addition thereto "in furtherance of the design" the accused so "armed himself and started on a mission to kill ," and that he would have succeeded in doing so if he had not been "prevented from carrying out his design by being arrested," these circumstances would furnish evidence of overt acts performed in the execution of an attempt to murder. In the four succeeding instructions relating to the necessary proof of overt acts, each one is predicated on the conditions expressed therein to the effect that the jury finds the "defendant did make up his mind to kill," that he "set forth on a mission to kill," and that he intended to murder Albert Jeans. These instructions are not erroneous.
The only given instruction which is not applicable to the issues of this case, and which should not have been given, follows the definitions of murder, premeditation and malice. It reads: "The law presumes a malicious and guilty intent, from the deliberate commission of an unlawful act, for the purpose of injuring another."
Clearly this instruction was intended to apply only to the ordinary definitions with respect to murder. It was given in connection with those definitions. It was removed from the subsequent instructions regarding the issues which are involved in a charge of an attempt to murder. It is true that the intent is not presumed in a charge of an attempt to murder, but must be affirmatively proved. People v. Mize, 80 Cal. 42, 22 P. 80. But it is also true that the intent or purpose with which an act is performed may be inferred from the facts and circumstances which are proved. Section 21, Pen. Code; 1 Wharton’s Criminal Law (11th Ed.) p. 305, § 234. We are of the opinion the jury was not misled by the last-quoted instruction. Assuming that it is erroneous and that it should not have been given to the jury, we are of the opinion it is not reversible error, for the reason that there was no miscarriage of justice in the conviction of the defendant. Const. art. 6, § 4½ .
The appellant complains of the court’s refusal to give to the jury one instruction, and of the modification of another instruction, which were offered by him. The refused instruction was substantially covered by another one which was given by the court. In effect, the refused instruction charges the jury that the mere procuring of a gun by the defendant with a threat to shoot Jeans, was insufficient to establish the necessary overt acts upon which the jury would be warranted in finding him guilty of an attempt to murder; that it was necessary to also find that he had made some further affirmative movement to use the weapon before he could be found guilty of the crime with which he was charged. This instruction was substantially covered by the one which was given to the jury from which we have heretofore quoted. There was therefore no error in refusing to give this instruction.
Finally, the appellant assigns as erroneous the giving of the following instruction as modified. The court substituted the portion which appears in italics for the following language which was eliminated therefrom, to wit, "made no movement to use the loaded gun upon the person of Albert Jeans." The instruction, as given by the court, reads: "You are instructed that if you find from the evidence in this case that the defendant, Charles Miller, procured a gun and loaded the same intending to murder Albert Jeans, but that he did nothing further toward carrying out such intention, then it will be your duty to find the defendant not guilty."
The instruction as modified correctly states the law. As it was originally proposed it was misleading. It carried the inference that even if the defendant loaded his gun and pursued Jeans with the intention of killing him, that he could not be lawfully convicted unless he actually raised the gun or made a "movement" with it to fire at his victim. The defendant was within 200 yards of Jeans and might have fired upon him except for the fact that the officer took the gun from him. By the amendment of the proffered instruction, the court properly left with the jury the question as to whether his intention to fire the gun was not prevented by the interference of the officer. If he was so intercepted in the execution of his avowed purpose, he would be guilty in spite of the fact that he did not actually make a "movement" to raise the gun or fire upon his victim.
The judgment and the order are affirmed.
We concur: PULLEN, P. J.; PLUMMER, J.