People v. Duty

• Citation: 74 Cal.Rptr. 606,269 Cal.App.2d 97
• Decision Date: 23 January 1969
• Docket Number: Cr. 4802
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Earl L. DUTY, Defendant and Appellant.
• Court: California Court of Appeals

Page 606

74 Cal.Rptr. 606

269 Cal.App.2d 97

The PEOPLE of the State of California, Plaintiff and Respondent, v. Earl L. DUTY, Defendant and Appellant.

Cr. 4802.

Court of Appeal, Third District, California.

Jan. 23, 1969.

Thomas C. Lynch, Atty. Gen., by Nelson P. Kempsky and Eddie Keller, Deputy Attys. Gen., Sacramento, for plaintiff-respondent.

Neri Ramos, San Francisco, Court Appointed Counsel, for defendant-appellant.

FRIEDMAN, Associate Justice.

After Barbara Jenner had been convicted of arson in wilfully setting fire to her home, a jury found defendant Earl Duty guilty as an accessory to Mrs. Jenner's crime. He appeals from the judgment.

Penal Code, section 32 defines an 'accessory' as follows: 'Every person who, after a felony has been committed, harbors, conceals or aids a principal in such felony, with the intent that said principal may avoid or escape from arrest, trial, conviction or punishment, having knowledge that said principal has committed such felony or has been charged with such felony or convicted thereof, is an accessory to such felony.'

The constitutent elements of the accessory offense have been summarized as follows: 'The crime of being an accessory is a complex one, being composed of the following elements, each of which must be alleged and proved by the prosecution: (1) someone other than the accused, the principal to the crime, must have committed a specific, completed felony; (2) the accused must have harbored, concealed or aided the principal; (3) the element of Scienter must be present in this, that the accused must have had knowledge that the principal has committed a felony, or has been charged or convicted thereof; (4) the element of specific intent must have been present, namely, that the accused must have harbored, concealed or aided with the intent that the principal may avoid or escape from arrest, trial, conviction or punishment.' (People v. Hardin, 207 Cal.App.2d 336, 341, 24 Cal.Rptr. 563, 566; see also, People v. Wayne, 41 Cal.2d 814, 826, 264 P.2d 547; People v. Collum, 122 Cal. 186, 187, 54 P. 589.)

Defendant charges absence of proof of Scienter and specific intent. The test on appeal is whether there is substantial evidence, including inferences reasonably deduced from facts in evidence, to support the finding of guilt. (People v. Bard, 70 A.C. 1, 3, 4, 73 Cal.Rptr. 547, 447 P.2d 939; People v. Hall, 62 Cal.2d 104, 109--110, 41 Cal.Rptr. 284, 396 P.2d 700; People v. Daugherty, 40 Cal.2d 876, 885--886, 256 P.2d 911.) State of mind, such as Scienter or specific intent, is a question of fact, and if the evidence reasonably justifies the fact finder's inference that the state of mind existed, the finding will not be disturbed on appeal. (People v. Tolstoy, 250 Cal.App.2d 22, 25, 58 Cal.Rptr. 148; see, e.g., People v. Bard, supra.)

Mrs., Jenner's home in the city of Oroville was seriously damaged by a fire during the early morning hours of January 22, 1967. Uncontradicted evidence pointed to a fire which had been deliberately set. At approximately 2:45 a.m., before the fire's outbreak, George Kelly, a neighbor, noticed Mrs. Jenner's car parked in her driveway. Somewhat later, at 3:25 a.m., Officer Gerald Bryson noticed a car parked outside the Table Mountain Tavern. He looked it over, identified it as the car belonging to Mrs. Jenner and saw a table television set, blankets and household items in the back seat. The record does not indicate the distance between the Table Mountain Tavern and Mrs. Jenner's home. It does show that after Officer Bryson observed Mrs. Jenner's car, he drove away from the tavern, noticed a glow in the sky, drove toward it and found Mrs. Jenner's house in flames. Fire equipment arrived about five minutes later. A city fire marshal, Harold Ogle, also arrived. Bryson and Ogle conferred briefly. Ogle then left the fire scene and drove to the Table Mountain Tavern, where Bryson had seen Mrs. Jenner's car. He arrived there at about 3:45 a.m. Mrs. Jenner's automobile was no longer there.

Ogle testified that he had arrived at the fire at 3:35 a.m. In his opinion the fire had commenced approximately 15 minutes earlier.

The day after the fire Ogle interviewed Mrs. Jenner, who told him that she had been with defendant the previous night. Three days later, on January 25, Ogle called on defendant in company with William Hull, an insurance investigator. They told defendant they were investigating an 'arson fire' at Mrs. Jenner's house. At their request, defendant gave them an oral statement describing his and Mrs. Jenner's activities on the night of the fire. Defendant had come to Mrs. Jenner's house that evening. They then drove to the Oroville Inn, defendant in his car and Mrs. Jenner in her own, arriving there about 8:30 p.m. Both parket outside the Inn. About 9 o'clock they left the Oroville Inn in defendant's car, leaving Mrs. Jenner's car where she had parked it earlier. They drove together to the Moose Lodge in Gridley, where defendant, a musician, was playing for a party, arriving there about 9:30 p.m. About 2:15 a.m. defendant and another musician took their musical equipment out to the former's car and found Mrs. Jenner asleep in the front seat. According to defendant's statement to the investigators, he then drove with Mrs. Jenner to San Francisco, registered at a motel, stayed there less than an hour, left about 6:30 or 7 a.m. and drove back to Oroville, arriving there at 10 or 10:30 a.m., found Mrs. Jenner's car parked in front of the Oroville Inn where they had left it the preceding evening.

Mrs. Jenner was called by the prosecution. She testified that she and defendant had left her car at the Oroville Inn and had driven to the Gridley Moose Lodge in his car, arriving thee about 9:30 p.m. She drank liquor at the Moose Lodge and went outside to defendant's car, where she 'passed out.' Later she was conscious of being bumped in the head as defendant and a companion were loading equipment in the car. She went back to sleep and did not resume consciousness until about 11 o'clock in the morning. At that time, she testified, she and defendant were parked beside a highway. They drove to Oroville, where she picked up her car outside the Oroville Inn. She admitted that she had been convicted of the arson.

Defendant testified in his own defense. His description of the events on the night of the fire roughly paralleled Mrs. Jenner's testimony.

On rebuttal, Hull, the insurance investigator, corroborated Ogle's description of their interview with defendant. Hull described a warning of 'constitutional rights' given to defendant at the outset of the interview.

From the prosecution evidence the jury could reasonably infer that defendant and Mrs. Jenner had been together during the entire night; that Mrs. Jenner had left the Moose Lodge in Gridley with defendant about 2:15 a.m., picked up her car at the Oroville Inn, drove to her house, loaded the car with household goods, set the fire about 3:20 a.m. and drove away; that defendant had been with her during these activities. From this set of inferences several alternative corollaries were available: (a) Defendant actively aided and abetted the arson, incurring liability as a principal in the crime under Penal Code, section 31. ¹ (b) He aided and concealed Mrs. Jenner by assisting her to remove her household goods from the scene, incurring liability as an accessory under section 32. (c) He was nothing but a bystander, one who had an opportunity to act but did not. ² Evidentiary justification for one or another of these conclusions is not a problem, for the evidence goes farther. Suffice it to say that the prosecution evidence at this point supports a finding of the first element of the accessory offense, the principal's commission of a specific felony, arson.

The additional evidence is defendant's inferably false statement to Ogle, a public investigator. This statement placed defendant and Mrs. Jenner in his car enroute to San Francisco at the time of the fire and placed her automobile at its parking place outside the Oroville Inn during the entire night and well into the morning. The prosecution evidence, in contrast, placed Mrs. Jenner's car at her house in Oroville at 2:45 a.m. approximately 35 minutes before the probable commencement of the fire, and put it outside the Table Mountain Tavern, loaded with her household goods, a few minutes later.

Whether a falsehood to the police or other public investigators may violate the accessory statute is a new question in California. According to some American decision, the offense is not committed by passive failure to reveal a known felony, ³ by refusal to give information to the authorities, ⁴ or by a denial of knowledge motivated by self-interest. ⁵ On the other hand, an affirmative falsehood to the public investigator, when made with the intent to shield the perpetrator of the crime, may form the aid or concealment, denounced by the statute. ⁶

The gist of the offense described by section 32 of the California Penal Code is that the accused 'harbors, conceals or aids' the principal with the requisite knowledge any intent. Any kind of overt or affirmative assistance to a known felon may fall within these terms. ⁷ A person may be charged under section 32 when he aids the principal in concealing the latter's crime. ⁸ 'The test of an accessory after the fact is that, he renders his principal some personal help to elude punishment,--the kind of help being unimportant.' (1 Bishop's Criminal Law 500, § 695.)

The evidence here shows more than passive nondisclosure. The jury could reasonably find that defendant had actively concealed or aided Mrs. Jenner by supplying an affirmative and deliberate falsehood to the public authorities, a false alibi which removed the principal from the scene of her crime and placed her on the highway enroute to San Francisco at the time when the fire must have been set. In determining the knowledge and intent of the...