Jackson v. Superior Court of City and County of San Francisco

• Decision Date: 01 March 1965
• Citation: 42 Cal.Rptr. 838,62 Cal.2d 521,399 P.2d 374
• Court: California Supreme Court
• Parties: , 399 P.2d 374 Constance JACKSON, Petitioner, v. The SUPERIOR COURT OF the CITY AND COUNTY OF SAN FRANCISCO, Respondent; The PEOPLE, Real Party in Interest. S. F. 21901.

Page 838

42 Cal.Rptr. 838

62 Cal.2d 521, 399 P.2d 374

Constance JACKSON, Petitioner, v. The SUPERIOR COURT OF the CITY AND COUNTY OF SAN FRANCISCO, Respondent The PEOPLE, Real Party in Interest.

S. F. 21901.

Supreme Court of California, In Bank.

March 1, 1965.

Garry, Dreyfus & McTernan, Charles R. Garry, Donald L. A. Kerson and Benjamin Dreyfus, San Francisco, for petitioner.

No appearance for respondent.

Thomas C. Lynch, Atty. Gen., Robert R. Granucci, Edward P. O'Brien and James Murad, Deputy Attys. Gen., for real party in interest.

MOSK, Justice.

Petitioner seeks a writ of prohibition restraining the San Francisco Superior Court from taking any further action on an indictment charging her with murder. (Pen.Code, § 187.)

Petitioner contends that she was indicted without reasonable or probable cause (Pen.Code, § 995) in that the prosecution assertedly failed to produce any evidence at the grand jury hearing to show 'malice aforethought,' and that the evidence which it did produce established as a matter of law either adequate circumstances of mitigation or a degree of intoxication sufficient to render petitioner incapable of possessing such malice. After consideration of the evidence in the light of the limited purpose of this proceeding in prohibition, we have concluded that it fails to support petitioner's contentions and hence the peremptory writ must be denied.

There was evidence before the grand jury of the following principal facts: the victim, Harry Cole, was a mutual acquaintance of petitioner and her boyfriend, Frank Darden. At approximately 7:30 p. m. on August 2, 1964, Cole called on petitioner at her home, bringing with him a fifth of vodka and some mix. Shortly after Cole's arrival petitioner telephoned Darden and invited him over, incidentally mentioning that Cole was there. Darden declined the invitation, saying that he wanted to rest for a while but would come over later. For the next two hours petitioner, clad in pajamas and a robe, entertained Cole in her bedroom, talking and consuming several drinks of vodka. According to petitioner's subsequent explanation to the police, in the course of the conversation Cole 'made several suggestions to her regarding her relationship with Mr. Darden and how she was wasting her time with him and that he (Cole) should be her boyfriend, and what he could do with her sexually and, roughly, he wanted to take her to bed.' At no time, however, did Cole make any physical advances towards her. Petitioner thereafter asked Cole to leave, and he did so. Between 9:30 and 10:00 p. m. petitioner telephoned Darden a second time to ask him when he was coming over, and told him that Cole had left. Petitioner also conversed with Darden's mother, and it was agreed that Darden would bring some dinner with him.

About 10:15 p. m. two witnesses observed Cole standing outside petitioner's house in front of an open window; two shots were fired, and Cole walked over to the front door. Petitioner opened the door, Cole entered, and two or three more shots were fired in rapid succession. Describing these events to the police, petitioner 'stated that she fired some warning shots up high, I guess to the ceiling through the window, and then she said she didn't hear anything; she became frightened, that she may have heard (hurt?) someone, and she opened the door and that's when the deceased, she said, forced his way into the house, and he was coming at her so she fired at him point blank.' petitioner then telephoned Darden again and said, 'Can you come out quick? * * * I think I've killed Harry (Cole).' The victim was found dead, lying face down approximately ten feet inside the front door. The autopsy surgeon testified that Cole had been shot twice at close range: the fatal bullet had entered the left temporal area of the skull, passed through the brain, and exited through the back of the head; a second bullet had entered the right shoulder and lodged in the victim's back. The gun was identified as a .32 caliber automatic owned by petitioner.

The governing principles in this proceeding are well known, and were recently restated by us in People v. Ketchel (1963) 59 Cal.2d 503, 532, 30 Cal.Rptr. 538, 553, 381 P.2d 394, 409: "Probable cause is shown if a man of ordinary caution or prudence would be led to believe and conscientiously entertain a strong suspicion of the guilt of the accused. (Citation.) An indictment will not be set aside or a prosecution thereon prohibited if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it.' (Citations.) 'If there is some evidence to support the indictment the courts will not inquire into its sufficiency * * *.' (Citations.) (Italics deleted.)'

From the foregoing evidence the grand jury could reasonably entertain, as men of ordinary caution and prudence, a strong suspicion that petitioner shot and killed Harry Cole on the night in question. Indeed, petitioner apparently concedes this to be the fact, but argues that an indictment for murder nevertheless cannot stand because 'There was no evidence before the grand jury that the homicide was committed with malice aforethought.' By statutory definition (Pen.Code, § 187) such malice 'is made an essential element of the crime of murder whether it be of the first degree or of the second degree.' (People v. Bender (1945) 27 Cal.2d 164, 180, 163 P.2d 8, 17.) To sustain a conviction of either degree of murder, therefore, it must be proved at the trial that the homicide was committed by the accused with the state of mind known in the law as 'malice aforethought.' But it does not follow that the same showing must be made before the grand jury to support a mere accusation of murder.

To begin with, even at trial the necessary element of malice may be inferred from the circumstances of the homicide. Penal Code section 188 declares that 'Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.' (Italics added.) From the emphasized language the rule is derived that 'When the killing is proved to have been committed by the defendant, and nothing further is shown, the presumption of law is that it was malicious and an act of murder; but in such a case the verdict should be murder of the second degree, and not murder of the first degree.' (Italics added.) (People v. Craig (1957) 49 Cal.2d 313, 319, 316 P.2d 947, 950, quoting from People v. Howard (1930) 211 Cal. 322, 329, 295 P. 333, 71 A.L.R. 1385; accord, People v. Terry (1962) 57 Cal.2d 538, 556, 21 Cal.Rptr. 185, 370 P.2d 985; People v. Cole (1956) 47 Cal.2d 99, 106, 301 P.2d 854, 56 A.L.R.2d 1435; People v. Bender (1945) supra, 27 Cal.2d 164, 179, 163 P.2d 8.) A further refinement of that rule has been developed in cases where the homicide results from an assault with a deadly weapon: 'When it is proved that defendant assaulted decedent with a dangerous weapon in a manner endangering life and resulting in death and the jury concludes that the evidence did not create in their minds a reasonable doubt whether defendant's act may have been justified or its criminal character mitigated by the influence of passion, e. g., of terror, People v. Logan, 175 Cal. 45, 48, 49, 164 P. 1121, then no further proof of malice or of intent to kill is required to support a verdict of guilty of second degree murder. Of that crime an actual intent to kill is not a necessary component and malice is implied from such assault in the absence of justifying or mitigating circumstances.' (People v. Torrers (1949) 94 Cal.App.2d 146, 149-150, 210 P.2d 324, 326; accord, People v. Isby (1947) 30 Cal.2d 879, 889, 186 P.2d 405; People v. McAuliffe (1957) 154 Cal.App.2d 332, 338, 316 P.2d 381; People v. Butterfield (1940) 40 Cal.App.2d 725, 729, 105 P.2d 628.)

These rules of substantive law are implemented by Penal Code section 1105, which provides that 'Upon a trial for murder, the commission of the homicide by the defendant being proved, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable.' It is true that this statute 'does not place on a defendant the burden of persuasion, but merely declares a rule of procedure that imposes on him a duty of going forward with evidence of mitigating circumstances.' (People v. Deloney (1953) 41 Cal.2d 832, 841, 264 P.2d 532, 537.) Yet by the same token if the defendant fails to discharge the latter duty to the point of raising a reasonable doubt in the minds of the jurors, the presumption of malice will operate and the homicide will be deemed 'malicious and an act of murder.' (People v. Craig (1957) supra, 49 Cal.2d 313, 319, 316 P.2d 947, 951; see also People v. Hall (1963) 212 Cal.App.2d 480, 482, 28 Cal.Rptr. 164, and cases cited.)

It follows that to require the prosecution, as petitioner urges, to present specific proof of 'malice aforethought' at the grand jury hearing, over and above its fundamental showing of the killing of the victim by the defendant, would in effect place a greater burden on the prosecution at the accusatory stage than at the trial itself. None of petitioner's arguments compels us to reach such an anomalous result. First, petitioner invokes those cases where an indictment of information has been set aside because of a total lack of evidence before the grand jury or magistrate of one of the necessary elements of the crime charged. (See, e. g., Garabedian v. Superior Court (1963) 59 Cal.2d 124, 127, 28 Cal.Rptr. 318, 378 P.2d 590 (leaving the scene of an automobile accident); Cotton v....