Opinion
Erling J. Hovden, Public Defender, Los Angeles, Paul G. Breckenridge, Jr., and James L. McCormick, Deputy Public Defenders, for appellant.
Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Gordon Ringer, Deputy Atty. Gen., for respondent.
FORD, Justice.
This case presents the question of whether, under the felony-murder doctrine, a robber can be convicted of the crime of murder in a case in which his co-felon was killed by the victim of the robbery during the commission of that crime.
The defendant Washington has appealed from a judgment of conviction of the offenses of robbery and murder, but his argument is primarily directed to the matter of the legal propriety of his conviction of the charge of murder. The person alleged to have been murdered was James Ball, who was shot during the course of the robbery of a service station in Los Angeles. Johnnie Carpenter, the owner of the service station, testified that on the evening of October 2, 1962, when he was closing his place of business between 9 and 10 o'clock, he heard someone shout 'robbery.' Mr. Carpenter, who was at his desk in the office, put his gun on his desk and waited. His employee, Joseph Dun, was placing some money in the vault in another portion of the premises. James Ball entered the office and pointed his gun at Mr. Carpenter. Thereupon Mr. Carpenter shot and fatally wounded Ball. Mr. Carpenter then went to the door and observed that the defendant James Washington was at the vault, holding a bag of money in his right hand. He saw no weapon in Washington's possession. As Washington fled, Mr. Carpenter shouted at him to stop and then, as Washington's progress was impeded by iron gates, Mr. Carpenter shot him. After moving a short distance, Washington fell; he was later removed by ambulance. The bag containing money was dropped just inside the gates. The place where Ball fell was 'toward the gates' and his revolver was not far from the money. Mr. Carpenter did not see any other person during the occurrence.
James Johnson, who was an inmate of the state prison at the time of the trial, was called as a witness on behalf of the defendant Washington. He testified that he participated in the robbery with James Ball. He met Washington earlier in the evening, but neither he nor Ball said anything to Washington about a robbery. When the witness and Ball drove to the service station to commit the robbery, Washington was 'pretty drunk' and was asleep in the automobile. Johnson and Ball entered the service station; Washington remained in the car. Later Washington came to the metal grill at the building and inquired as to what was occurring. Then there were some shots. Johnson ran toward the grill because a man stepped into the doorway and shouted, 'Halt.' Johnson ran by the man and the man fired his gun. Johnson dropped the money bag, left the building, and ran down the street.
The defendant Washington testified in his own behalf. He first met Johnson, who was known as 'Cool,' on the evening of the robbery. When the three men entered an automobile, Washington was 'pretty drunk.' He was in the back seat. He heard no conversation about a robbery. They later parked the automobile and Johnson and Ball left the vehicle and walked to the service station. Washington followed them at some distance. He thought that they were going to inquire about brake shoes for Ball's car, there having been earlier conversation about that subject. Washington further testified as follows: 'I walked up to the filling station and then I got to the gate and I seen Ball have a pistol in his land and it surprised me and I turned around and I said, 'What's this?' I turned around to leave and all of a sudden I heard the shooting and I was shot.' He had no weapon of any kind. He had no belief that there was going to be a robbery. While he was on the ground after the robbery, he told the police officers that there was a third man named Cool who got away and he gave them the best description of Cool that he could. He also told them that he had no knowledge that the two other men were going to commit a robbery.
In People v. Harrison, 176 Cal.App.2d 330, 1 Cal.Rptr. 414, the defendants attempted to commit a robbery in a cleaning establishment. The owner was killed by a shot fired by his employee who was shooting at one of the defendants to repel his attack. This court affirmed the conviction of the defendants of the crime of murder, stating in part (176 Cal.App.2d, at page 345, 1 Cal.Rptr. at page 425): 'We think the better reasoning is that of the authorities to which we have referred, to the effect that the doctrine of proximate cause is applicable in criminal proceedings in determining 'No one disputes the fact that the shooting of Williams resulted directly from the attempted robbery and from Jones' resistance to defendant Harrison. It makes no difference that defendants could not know in advance the precise course of events that would follow when they attempted the robbery. Their attempted robbery set in motion a chain of events which were, or should have been, within their contemplation when the motion was initiated. It was a normal human response for Jones, one of the victims of the attempted robbery, who was shot at by Harrison, to return the fire. The shooting at Harrison was the natural result of defendants' acts. The killing of Williams was the natural, foreseeable result of the initial act. The attempted robbery was the proximate cause of the death. We can see no sound reason for distinction merely because Williams was killed by a shot from the gun of Jones, fired at Harrison in self-defense. The killing was murder and it was committed in the perpetration of attempted robbery within the meaning of Penal Code, section 189.'
Section 189 of the Penal Code, which embodies the felony-murder doctrine, is as follows:
The defendant Washington attempts to distinguish the Harrison case from the present case. He argues: '* * * the Harrison case differs from the instant case in two important particulars. First, the deceased in the Harrison case was an innocent victim of an attempted robbery, whereas the deceased herein was a confederate of the appellant. Secondly, the robbers in the Harrison case willingly engaged in a gun battle with their victims, whereas neither of the felons in this case fired a weapon. The willingness of the defendants in the Harrison case to engage in gun play may have supplied the implied malice necessary to elevate their crime to murder.' He also argues that since the killing of Ball by the service station owner 'was justifiable homicide, it would appear that appellant has been convicted of murder in a situation where no 'murder' was in fact committed.'
There is no sound basis for the application of one rule where, as in the Harrison case, the killing was excusable and another rule where, as in the case presently before this court, the killing was justifiable. Moreover, in the present case Mr. Carpenter's justification was personal to him and could not shield the defendant Washington from conviction if he was causally responsible The conclusion just expressed is in harmony with Commonwealth v. Thomas, 382 Pa. 639, 117 A.2d 204, a case wherein the defendant's accomplice was killed by the victim of their robbery. We have considered the reasoning of the Supreme Court of Pennsylvania in Commonwealth v. Redline, 391 Pa. 486, 137 A.2d 472, which overruled the Thomas case. We are persuaded, however, that the reasoning of the Harrison case is sound and compels the determination we have stated.
Section 195 of the Penal Code is in part as follows:
At the time of the robbery in the present case, section 197 of the Penal Code was in part as follows:
The defendant further contends that even if he can be held responsible for the death of his co-felon, there was prejudicial error committed at the trial in that the jury was not instructed upon the doctrine of supervening cause. The contention is untenable. The instructions given covered the applicable law. Under the evidence there was no reasonable basis for a conclusion that, if the defendant Washington knowingly participated in the robbery, the homicide was caused by an act for which he had no criminal responsibility. As stated in Perkins on Criminal Law (1957) at page 632: 'It is merely a normal human response for the intended victim of a robbery, who is shot at or threatened by the robbers, to return their fire and this is not a superseding cause.'
The jury was instructed in part as follows:
Finally, the defendant places emphasis upon the fact that Mr. Carpenter was the only eyewitness produced by the prosecution who testified as to the participation of the defendant Washington in the robbery. He contends that since Mr. Carpenter 'was relieved of any criminal or civil responsibility for the shootings by implicating appellant and the deceased in an attempted robbery,' the jury should have been instructed to view his testimony with great caution. But no instruction of that nature was required by the applicable law. The jurors were told that they were the sole and exclusive judges of the credibility of the witnesses and were informed of the matters, including the relation of a witness to the case and his interest therein, which were to be considered by them in the performance of their function. There was no error.
Joseph Dun, who was Mr. Carpenter's employee when the robbery occurred, could not be found at the time of the trial.
It is clear that the jury by its verdict rejected the testimony offered on behalf of the defendant in exculpation and accepted the facts and circumstances of the robbery and homicide as related in the testimony of Mr. Carpenter. There is no basis for a reversal of the judgment.
The order denying the defendant's motion for a new trial not being separately appealable (Pen.Code, § 1237), the appeal therefrom is dismissed. The judgment is affirmed.
SHINN, P.J., concurs.
FILES, Justice (dissenting).
I will simply outline the reasons why I would reverse.
(1) The judgment in this case is directly contrary to the holding of Commonwealth v. Redline, 391 Pa. 486, 137 A.2d 472, People v. Austin, 370 Mich. 12, 120 N.W.2d 766, 770-775, and Commonwealth v. Campbell, 89 Mass. (7 Allen) 541. It is irreconcilable with People v. Ferlin, 203 Cal. 587, 265 P. 230, People v. Garippo, 292 Ill. 293, 127 N.E. 75, State v. Oxendine, 187 N.C. 658, 122 S.E. 568, Commonwealth v. Moore, 121 Ky. 97, 88 S.W. 1085, 2 L.R.A.,N.S., 719, and People v. Wood, 8 N.Y.2d 48, 201 N.Y.S.2d 328, 167 N.E.2d 736.
(2) No case from any jurisdiction has come to our attention wherein a person has been held guilty of murder for the justifiable killing of his confederate by a third party, excepting only Commonwealth v. Thomas, 382 Pa. 639, 117 A.2d 204, which was expressly overruled in Commonwealth v. Redline, supra.
(3) People v. Harrison, 176 Cal.App.2d 330, 1 Cal.Rptr. 414, is good law, but it should not be controlling here. There is a vast difference between the culpability of a robber who causes the death of an innocent bystander and the culpability of the present defendant for the death of his confederate. In the Harrison case the defendant, by participating in a robbery, wantonly exposed the deceased to deadly peril. But in the present case defendant did not in the same sense thrust danger upon his partner in crime.
(4) People v. Ferlin, 203 Cal. 587, 265 P. 230, is the controlling authority. In that case the defendant Ferlin hired Skala to burn a building. In carrying out this purpose, Skala accidentally burned himself to death. Ferlin's conviction of the crime of arson was affirmed, but his conviction for murder was reversed. Were proximate cause the sole test, Ferlin certainly would have been guilty of murder. Ferlin was criminally responsible for the fire, and the fire was the proximate cause of Skala's death. From a legal standpoint, Ferlin killed Skala in exactly the same way the defendant here killed his confederate: by joining with him in a felonious enterprise which proximately resulted in the unintended death of one of them.
(5) The Harrison decision is not inconsistent with Ferlin, even though in each case the defendant's felonious act was a proximate cause of the victim's death. The true distinction between Harrison and Ferlin is best explained in terms of malice or culpability.
(6) There is no murder unless the killing is 'with malice aforethought' (Pen.Code, § 187); see concurring opinion in People v. Thomas, 41 Cal.2d 470, 477-480, 261 P.2d 1. The rule that a killing perpetrated in an attempt to commit a felony is murder is based upon the common-law principle that the intent to commit a felony supplies the criminal intent or malice. (See People v. Foren, 25 Cal. 361, 364; People v. Doyell, 48 Cal. 85, 95; People v. Olsen, 80 Cal. 122, 125, 22 P. 125.)
When armed robbers enter a place of business, intentionally subjecting all bystanders to the risk of death by the gunfire of persons who are resisting the robbery, the robbers show such wanton and reckless disregard for the safety of those present that malice against such persons is implied. That concept of implied malice may reasonably be applied to the killing of anyone except a member of the felonious conspiracy. There is no logical basis for saying that the attempt to commit a felony implies malice between the two felons who are working in concert with each other. In this way we can distinguish Harrison (unintended death of a bystander) from Ferlin (unintended death of a co-conspirator).
In the present case, as in Ferlin, there was no malice toward the deceased, express or implied; hence, no murder.
(7) People v. Cabaltero, 31 Cal.App.2d 52, 87 P.2d 364, is inconsistent with the reasoning of this dissent, but it is also irreconcilable with People v. Ferlin, supra, and for that reason should not be followed.
Hearing granted; MOSK, J., not participating.
'All murder which is perpetrated by means of poison, or lying in wait, torture, or by any other kind of wilful, deliberate, and premediated killing, or which is committed in the perpetration or attempt to perpetrate arson, rape, robbery, burglary, mayhem, or any act punishable under Section 288, is murder of the first degree; and all other kinds of murders are of the second degree.'
'Homicide is excusable in the following cases:
'1. When committed by accident and misfortune, in lawfully correcting a child or servant, or in doing any other lawful act by lawful means, with usual and ordinary caution, and without any unlawful intent.'
'Homicide is also justifiable when committed by any person in either of the following cases:
'1. When resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person; or,
'2. When committed in defense of habitation, property, or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony, * * *.'
'You are instructed that if one of the persons committing a robbery is killed by a victim of the robbery during the robbery and the robbery is one of the proximate causes of the death, then each of the persons aiding and abetting the commission of the robbery is guilty of first degree murder.'
'You are instructed that if one who aids and abets a robbery reasonably might or should have foreseen that the commission of the robbery would be likely to create a situation of danger of death to some person, whether it be an innocent victim or one of the perpetrators of the crime, then the creation of such a situation is one of the proximate causes of the death and the killing is murder of the first degree.'