People v. Grant

• Decision Date: 11 July 1951
• Docket Number: Cr. 4592
• Parties: PEOPLE v. GRANT.
• Court: California Court of Appeals Court of Appeals

Page 660

233 P.2d 660

105 Cal.App.2d 347

PEOPLE v. GRANT.

Cr. 4592.

District Court of Appeal, Second District, Division 2, California.

July 11, 1951.

Hearing Denied Aug. 9, 1951.

William Herbert Hall, Los Angeles, for appellant.

Edmund G. Brown, Atty.Gen., Stanford D. Herlick, Deputy Atty.Gen., for respondent.

McCOMB, Justice.

From a judgment of guilty of six counts of attempted murder and from an order denying a new trial, defendant appeals.

Facts

The evidence being viewed in the light most favorable to the people (respondent) the record discloses that on April 14, 1950, defendant conceived the plan of killing his wife and two children for the purpose of obtaining the proceeds of policies of life insurance in his favor so that he might meet his financial obligations.

Defendant was a skilled aircraft machinist and technician, 32 years of age, deeply in debt and unhappily married. On April 15th defendant told his wife that he was going to take a trip to deliver parts for his company and asked for an old rawhide suitcase which was kept in a closet. After receiving the suitcase he told his wife to arrange to accompany him on a trip to San Diego the next day. In the meantime defendant purchased two six-volt batteries, an alarm clock, a sash cord, and six gallons of high test gasoline. With these and the suitcase he built an incendiary bomb with a timing mechanism consisting of an alarm clock. This alarm he set to go off at 2:37 p.m. Fastened to the frame of the clock was a plastic covered wire, a portion having been bared near the clapper arm of the alarm. Fastened to the clapper arm itself by means of solder was another length of wire fastened to the frame of the clock which led to a match packet and was fastened thereto by scotch tape. The wire then continued to the terminals of two six-volt batteries where the wires again were soldered, other wires connected thereto were interwoven between the heads of the matches. Packed around the center match packet were forty-nine other match packets. Also in the suitcase was a small four-ounce can of lighter fluid from the tip of which a cotton wick extended. The contrivance was constructed so that this wick would be ignited by the matches.

Adjacent to the ignition mechanism was a cardboard box containing an innertube filled with slightly less than five gallons of gasoline. There was a slow leak in this tube permitting the gasoline to escape. A number of strands of rope were tied at various positions about the inner tube. In addition the suitcase was filled with newspapers packed at various places wedging the parts of the mechanism.

When the alarm went off the clapper would strike the portion of the wire from which the covering had been removed causing the wire to burn red hot about the matches thus igniting them which in turn would result in the suitcase's exploding if enough gasoline vapor had escaped, or the gasoline would ignite and burn causing a fire. In any event the resulting fire would cause a temperature of 1000 degrees centigrade.

On April 16th defendant told his wife that the trip had been postponed because he could not obtain transportation on the airplane to San Diego, but that they would leave on the next day.

April 17th at about 12:50 p.m. defendant drove his wife and two children to the Los Angeles International Airport. As they approached the airport defendant told his wife to get the maximum insurance for the two children and herself. She said that she did not have the correct change for the insurance to which he replied that he would get it for her. Upon arrival at the airport defendant drove into the exit to the parking lot rather than the entrance. His wife indicated to him that there were many parking places but he replied that he desired to park in the front line next to the airport, and he parked the car so that it "headed out" while the other cars were "headed in."

Defendant then purchased three tickets for his wife and children for Flight 258, departure time 1:50 p.m. The aircraft was a DC-3, 21 passenger plane equipped with two engines. Before leaving the ticket counter defendant asked for and received four quarters in change for a dollar bill. When he returned to his wife he handed her five quarters to obtain the insurance. While she was getting the insurance defendant left the terminal, returned with the rawhide suitcase which he had weighed and checked at the counter, stating that he wanted the bag to go with his wife and children.

Defendant then told Mrs. Grant how to make out the insurance policies. He obtained an envelope, and at his instructions Mrs. Grant addressed it to him at their home address in Gardena. The policies were placed in the envelope and a stamp placed thereon. There were three policies in each of which defendant was named as beneficiary. There was one policy in the sum of $10,000 upon the life of Betty W. Grant, another for $10,000 insuring Marie A. Grant, and a third for $5,000 covering Robert E. Grant. In addition defendant held a policy under which he was the beneficiary insuring the life of his wife for $500.

Defendant, his wife and children then went through a tunnel over a ramp toward an airplane which was about 35 or 40 feet from gate 23. As they stood watching the airplane, defendant suddenly placed the insurance policies and the envelope in her hand and declared "I am in trouble. I am in a jam." He then walked quickly toward the terminal. When he reached the tunnel gate he turned and told his family to return to the car, adding "I am going to be arrested for sure." He then went under the counter where the luggage had been weighed.

In the meantime the rawhide suitcase had been taken by attendants to the airplane for flight 258, and when it was deposited in the pit of the airplane the lid blew open, a flame shot out and smoke poured out of the bag. The service man obtained a fire bottle and sprayed it over the suitcase while a fellow employee put a fire hose into the top of the suitcase and discharged some carbon dioxide gas, thus extinguishing the flame. Aboard the airplane at the time of the fire were the pilot, copilot and the stewardess.

The suitcase was removed and while the employees were inspecting the contents thereof defendant came running up saying "I am glad I got here before you put this bag in the airplane." Defendant then asked them to help him take it to the baggage area and upon their remaining silent, he stated "Never mind, I will take it up myself," whereupon he picked up the bag and ran into the baggage room and returned to his automobile where he was intercepted by the service manager for the United Air Lines who asked him what he was doing. Defendant replied "I am getting this thing out of here." When the manager asked him what was in the suitcase defendant stated that he did not know, it was not his suitcase, that his wife was going to San Diego and it appeared that someone was trying to play a joke on her.

Later however defendant admitted that the incendiary bomb was his and also admitted that he had not obtained any reservations for his family in San Diego, their destination.

Defendant was arrested and the suitcase turned over to an expert for examination who testified at the trial that in his opinion the device was a time alarm bomb which would have functioned properly at 2:37 p.m.

The DC-3 airplane on which defendant had obtained tickets for his wife and children was constructed in part in the rear cargo compartment of aluminum alloy whose melting point is 659.6 degrees centigrade. An expert testified that the airplane at 2:37 p.m. would have been near Oceanside at an altitude of about 1500 feet, and that if there had been fire in the rear compartment consuming between five to six gallons of gasoline, the heat would weaken the aluminum alloy structure of the airplane in that portion and if so weakened the plane would fall. In addition the cable controlling the tail section of the airplane is situated very near the rear baggage compartment.

Defendant was accused in six counts of attempted murder and in the seventh count with violating section 12354 of the Health and Safety Code. After the evidence had been received, in the presence of the jury, the district attorney moved for dismissal of count VII which motion was granted.

Questions

First: Did the dismissal of the charge of violating section 12354 of the Health and Safety Code (count VII) constitute a bar to defendant's prosecution for the offenses of attempted murder?

No. Defendant argues that since both the charges of attempted murder and malicious use of explosives were predicated upon the same evidence the dismissal of count VII operated to relieve defendant from any punishment for his acts, since he had been placed in double jeopardy. Defendant answers this contention himself when he says:

"Counsel recognizes that an attempt to murder and a violation of Section 12354 of the Health and Safety Code are not the same offenses as would preclude a prosecution for both under separate counts ***."

Though it is true that inconsistent verdicts will not be allowed to stand, it is settled that in order to be inconsistent, verdicts must be rendered in response to charges of offenses the elements of which are identical. People v. Doxie, 34 Cal.App.2d 511, 512, 93 P.2d 1068. See also People v. Amick, 20 Cal.2d 247, 249 et seq., 125 P.2d 25.

In the present case the offenses as charged in the information, as conceded by defendant, are not identical. The elements of attempted murder are, (1) the intent to murder a human being, (2) a direct but ineffectual act in furtherance of such intent, such act being more than mere preparation; while the elements constituting the crime of violating section 12354 of the Health and Safety Code ^* are, (1) the intent to injure, terrify or intimidate a human being, (2) placing or depositing or attempting to deposit an explosive in a place normally used by human beings.

...