People v. Cheary, Cr. 5981

CourtUnited States State Supreme Court (California)
Writing for the CourtTRAYNOR; GIBSON; CARTER
Citation309 P.2d 431,48 Cal.2d 301
PartiesThe PEOPLE of the State of California, Plaintiff and Respondent, v. John E. CHEARY, Defendant and Appellant.
Decision Date09 April 1957
Docket NumberCr. 5981

Page 431

309 P.2d 431
48 Cal.2d 301
The PEOPLE of the State of California, Plaintiff and Respondent,
v.
John E. CHEARY, Defendant and Appellant.
Cr. 5981.
Supreme Court of California.
April 9, 1957.
Rehearing Denied May 8, 1957.

Page 432

[48 Cal.2d 306] Jack B. Lamb, Modesto, for appellant.

Edmund G. Brown, Atty. Gen., Thomas W. Martin, Chief Asst. Atty. Gen., and Doris H. Maier, Deputy Atty. Gen., for respondent.

[48 Cal.2d 307] TRAYNOR, Justice.

A jury returned a verdict that defendant was guilty of murder in the first degree and fixed the punishment at death. The trial court denied a motion for new trial and sentenced defendant to death. The appeal is automatic. Pen.Code, § 1239(b).

Defendant contends that the verdict is not supported by the evidence. He also assigns as prejudicial error the court's excusing four prospective jurors on the ground that they entertained conscientious opinions that would preclude their voting for the death penalty, the admission into evidence of certain photographs, the refusal of the trial court to give requested

Page 433

instructions, and certain allegedly improper statements of the court and the district attorney.

Defendant is twenty-three years old and at the time of the crime was home on leave from service in the army. The deceased, Mrs. Minnie McDonald lived with her daughter, Mrs. Nora Inglet, in Modesto, California. Mrs. Inglet is fifty-four years old. Mrs. McDonald was eighty-four years old and was in good health for her age. Mrs. Inglet met defendant in a tavern in December, 1955 or January, 1956. The two were introduced by defendant's sister. Thereafter Mrs. Inglet saw defendant on various occasions, usually in the company of friends, but several times defendant and Mrs. Inglet were alone in defendant's car. Defendant testified that he had been intimate with Mrs. Inglet, but she denied that and testified that the last time she was alone with him, defendant attempted to force her to commit an unnatural sex act and that she left him and took a taxi home.

On the afternoon of March 19, 1956, defendant and his brother, Lester Cheary, left their mother's home in Modesto and made a tour of several taverns. They traveled in defendant's car, and defendant did the driving. They drank beer at each of the taverns they visited, and defendant testified that he also drank whiskey. They had nothing to eat. Some time during the afternoon or evening defendant made a remark about going to see a girl. At about 1 a. m. on the morning of March 20, defendant and his brother left Jim's Place, a tavern on highway 99, and drove to the home of Mrs. Iris McCurdy. Mrs. McCurdy was acquainted with defendant and was a friend and neighbor of Mrs. Inglet. Defendant stopped his car at a point across the street from Mrs. McCurdy's residence. Lester Cheary remained in the car. Defendant got out of the car and went to Mrs. McCurdy's residence. He knocked on the door, and when Mrs. [48 Cal.2d 308] McCurdy answered, he identified himself. He first asked for the address of J. Reynolds, a friend of Mrs. McCurdy. Mrs. McCurdy gave him Mr. Reynolds' address. Defendant then asked for Nora Inglet's address. Mrs. McCurdy refused to give him Mrs. Inglet's address. Defendant then went next door to the residence of Horace Smith. Mr. Smith told him that Mrs. Inglet lived farther down the street. Meanwhile, Mrs. McCurdy telephoned Mrs. Inglet and told her that defendant was looking for her and that he acted as if he had been drinking. After leaving the Smith residence, defendant proceeded to the next house on the block and started knocking on the door. This was the house in which Mrs. Inglet and Mrs. McDonald lived. Mrs. Inglet did not go to the door immediately, but when the knocking continued, she went to the door and asked defendant what he wanted. Defendant said that he wanted to talk to her and demanded entry. Mrs. Inglet refused to open the door and told defendant that if he did not go away she would call the police. Mrs. Inglet attempted to telephone the police, but before she could complete the call, defendant forced open the locked door and grabbed her by the arm. She dropped the telephone receiver, broke loose from defendant's grasp, and ran screaming out the rear door of her house to the home of Mrs. McCurdy. She could not telephone the police from there because the McCurdy phone was on her party line and she had not replaced her own telephone receiver. Mrs. McCurdy's son, Bob, ran to the Smith residence and telephoned the sheriff's office. Two officers in a patrol car arrived shortly thereafter, and one of the officers, Mrs. Inglet, and Mrs. McCurdy entered Mrs. Inglet's home.

They found Mrs. McDonald lying on her bed. Her face was bloody. Her bed covers were down to her waist, and her gown was open to below her breast. The spring of her bed had fallen to the floor. Defendant stood nearby. He was bent over toward Mrs. McDonald. His trousers were unbuttoned, and he held them with hands covered with blood. The front and upper back of his trousers and his shorts were stained with blood, which was later found

Page 434

to be of the same blood group as Mrs. McDonald's. Defendant's shoes were under one dreser, his jacket on another.

Defendant was taken into the living room, handcuffed, and seated on a chair. Another officer entered with Lester Cheary whom he had found across the street from Mrs. Inglet's home. When he saw his brother, defendant asked, [48 Cal.2d 309] 'What are you doing here?' Defendant then said to the officers, 'He didn't have anything to do with it, I did it.' Bob McCurdy then entered the room. He said something to defendant, and defendant asked Bob who he was. Defendant had met Bob McCurdy on several occasions previously.

Defendant and his brother were then taken by the officers to the sheriff's office. En route defendant remarked that 'According to military law, as long as the girl was over 16 years of age, there is nothing that could be done to him.' Defendant testified that after he had been taken to the sheriff's office, he was told to wash his face with cold water and that one of the officers walked him up and down in front of the sheriff's office to keep him awake.

Mrs. McDonald was taken to a hospital. An examination revealed that her face was badly bruised, her nose and cheek bone were broken, and that her tongue was one dresser, his jacket on another. emergency treatment, she was placed in an oxygen tent.

At about 6:15 p. m. on March 21, Mrs. McDonald died. After embalmment her body was examined by a pathologist. He found many bruises about her face, head, and neck, a large bruise on her chest, three fractured ribs, a bruise on her groin, and three small semicircular depressions on her thigh. He found no evidence of rape. He concluded that her death ws caused by hypostatic pneumonia resulting from her injuries.

Defendant testified that he was intoxicated and that he did not remember anything that happened between the time he left the tavern and the time he was handcuffed in Mrs. Inglet's living room. He further testified that he did not remember anything about the drive from Mrs. Inglet's residence to the sheriff's office. Lester Cheary testified that he had paid for the drinks for defendant and himself; that he had spent about $30 for drinks during the course of the evening; and that defendant had ben drinking more heavily than he had. Bob McCurdy testified that defendant repeated himself and acted as if he were drunk or drugged. Mrs. McCurdy testified that defendant acted as if he had been drinking. The arresting officer testified that he thought defendant had been drinking but that defendant had no difficulty speaking and did not stagger or sway when he walked. Mr. Smith testified that defendant did not act drunk when he asked for Mrs. Inglet's address.

In his argument to the jury the district attorney explained [48 Cal.2d 310] that he did not contend that Mrs. McDonald's death was a deliberate and premeditated homicide. He urged that defendant was guilty of first degree murder on the grounds that Mrs. McDonald's death resulted from injuries inflicted upon her by defendant in an attempt to rape her or in the perpetration of a burglary, breaking and entering Mrs. Inglet's home with the intent to rape Mrs. Inglet.

Defendant correctly points out that to prove him guilty of first degree murder on either of these grounds it was incumbent upon the prosecution to prove that he had the specific intent to rape when he entered Mrs. Inglet's home or that he had the specific intent to rape when he assaulted Mrs. McDonald.

Defendant contends that the evidence establishes that he did not have the intent to rape Mrs. Inglet when he went to her home. He points to his testimony that he had been intimate with Mrs. Inglet and asserts that that testimony shows that he had reason to expect that Mrs. Inglet would admit him to her home and that he had no felonious intent when he knocked at her door. Mrs. Inglet, however, denied having had intimate relations with defendant.

Page 435

Moreover, whatever was defendant's original intent, the jury could reasonably infer from his forcing open the door and grabbing Mrs. Inglet after having been informed by her that he was not welcome that defenant then had the specific intent to rape.

Defendant contends that the evidence establishes that he was so intoxicated that he did not have the specific intent to rape either Mrs. Inglet or Mrs. McDonald. It is true that if defendant was so intoxicated that he did not have the specific intent to rape, he is not guilty of murder in the first degree. People v. Burkhart, 211 Cal. 726, 731, 297 P. 11; See State v. Vanasse, 42 R.I. 278, 107 A. 85. Whether defendant was so intoxicated, however, was a question for the jury. People v. Burkhart, supra. The testimony regarding the extent of defendant's intoxication is conflicting. It appears, however, that he decided to go to see Mrs. Inglet;...

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61 practice notes
  • People v. Anderson, No. S004709
    • United States
    • United States State Supreme Court (California)
    • December 27, 1990
    ...trial or are waived on appeal. (E.g., People v. Terry (1970) 2 Cal.3d 362, 398, 85 Cal.Rptr. 409, 466 P.2d 961; People v. Cheary (1957) 48 Cal.2d 301, 316, 309 P.2d 431; cf. § 1259 [objection not required to preserve claim of instructional error on As in Whitt, supra, 51 Cal.3d 620, 274 Cal......
  • People v. Ray, Cr. 5672
    • United States
    • California Court of Appeals
    • July 27, 1967
    ...court to achieve by construction of an ambiguous statute.' (47 Cal.2d at pp. 575--576, 305 P.2d at p. 7; and see People v. Cheary (1957) 48 Cal.2d 301, 311, 309 P.2d In 1957 the language referring to the disposition 'upon plea of guilty' was deleted and there was added, 'and the matter of p......
  • People v. Thompson
    • United States
    • United States State Supreme Court (California)
    • April 28, 1988
    ...supra, at p. 35, 164 Cal.Rptr. 1, 609 P.2d 468; Purvis, supra, 60 Cal.2d 323, 33 Cal.Rptr. 104, 384 P.2d 424; People v. Cheary (1957) 48 Cal.2d 301, 318-319, 309 P.2d 431.) We therefore conclude that on this record, error did not occur. 21 Page 262 753 P.2d 54 IV. Admission of Photographs o......
  • People v. Tolbert, Cr. 10681
    • United States
    • United States State Supreme Court (California)
    • April 15, 1969
    ...and that blood flowed from the area under her head and upper body to her knees. The evidence was properly admitted. (People v. Cheary, 48 Cal.2d 301, 311--312(7--10), 309 P.2d 431; People v. Arguello, 65 Cal.2d 768, 775--776(8--9), 56 Cal.Rptr. 274, 423 P.2d Sixth, That the trial court erre......
  • Request a trial to view additional results
61 cases
  • People v. Anderson, No. S004709
    • United States
    • United States State Supreme Court (California)
    • December 27, 1990
    ...trial or are waived on appeal. (E.g., People v. Terry (1970) 2 Cal.3d 362, 398, 85 Cal.Rptr. 409, 466 P.2d 961; People v. Cheary (1957) 48 Cal.2d 301, 316, 309 P.2d 431; cf. § 1259 [objection not required to preserve claim of instructional error on As in Whitt, supra, 51 Cal.3d 620, 274 Cal......
  • People v. Ray, Cr. 5672
    • United States
    • California Court of Appeals
    • July 27, 1967
    ...court to achieve by construction of an ambiguous statute.' (47 Cal.2d at pp. 575--576, 305 P.2d at p. 7; and see People v. Cheary (1957) 48 Cal.2d 301, 311, 309 P.2d In 1957 the language referring to the disposition 'upon plea of guilty' was deleted and there was added, 'and the matter of p......
  • People v. Thompson
    • United States
    • United States State Supreme Court (California)
    • April 28, 1988
    ...supra, at p. 35, 164 Cal.Rptr. 1, 609 P.2d 468; Purvis, supra, 60 Cal.2d 323, 33 Cal.Rptr. 104, 384 P.2d 424; People v. Cheary (1957) 48 Cal.2d 301, 318-319, 309 P.2d 431.) We therefore conclude that on this record, error did not occur. 21 Page 262 753 P.2d 54 IV. Admission of Photographs o......
  • People v. Tolbert, Cr. 10681
    • United States
    • United States State Supreme Court (California)
    • April 15, 1969
    ...and that blood flowed from the area under her head and upper body to her knees. The evidence was properly admitted. (People v. Cheary, 48 Cal.2d 301, 311--312(7--10), 309 P.2d 431; People v. Arguello, 65 Cal.2d 768, 775--776(8--9), 56 Cal.Rptr. 274, 423 P.2d Sixth, That the trial court erre......
  • Request a trial to view additional results

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