People v. Harrison

• Decision Date: 17 December 1959
• Docket Number: Cr. 6625
• Parties: PEOPLE of State of California, Plaintiff and Respondent, v. Edwin Kirley HARRISON, Eddle Blackshear and Charles Willard Asberry, Defendants and Appellants.
• Court: California Court of Appeals Court of Appeals

Page 414

1 Cal.Rptr. 414

176 Cal.App.2d 330

PEOPLE of State of California, Plaintiff and Respondent, v. Edwin Kirley HARRISON, Eddle Blackshear and Charles Willard Asberry, Defendants and Appellants.

Cr. 6625.

District Court of Appeal, Second District, Division 3, California.

Dec. 17, 1959.

Hearing Denied .feb. 10, 1960.

Ellery E. Cuff, Public Defender of Los Angeles County, Erling J. Hovden, Chief Deputy Public Defender, Richard B. Goethals, Former Deputy Public Defender, and Richard W. Erskine, Deputy Public Defender, Los Angeles, for appellants Blackshear and Harrison.

Lloyd C. Griffith, Los Angeles, for appellant Asberry.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Philip C. Griffin, Deputy Atty. Gen., for respondent.

VALLEE, Justice.

By information defendants were charged in count I with attempted robbery of Lewis Williams, in count II with attempted robbery of Elijah Jones, and in count III with the murder of Lewis Williams. It was alleged in counts I and II that defendants were armed with a .38-caliber revolver. In a nonjury trial the defendants were found guilty as charged in each count and the allegations of being armed were found to be true. The attempted robberies were adjudged to be of the first degree. The penalty as to count III was fixed at life imprisonment as to each defendant.

On February 25, 1958 Elijah Jones was working in a cleaning establishment owned by Lewis Williams at 2111 East 92nd Street, Los Angeles. Williams was in the shop. Jones was sitting behind the counter in front of the cash register. Williams was sitting nearby at a sewing machine, also behind the counter. Defendants Harrison and Blackshear entered the shop. One of them was carrying some trousers. Williams walked up to the counter near the front door and asked, 'What can I do for you?' One of the men said, 'How much you charge me to clean these two pair of pants?' Williams replied, '60 cents a pair.' .jones, whose back had been turned, heard 'a lump; a noise,' looked around, and saw Harrison behind the counter between himself and Williams with a gun in his hand. At that instant Harrison commenced firing at Jones. Jones was hit once in the arm. When Harrison commenced firing, Jones immediately reached behind the cash register and grabbed Williams' gun. He turned and fired at Harrison, emptying the gun. During this time Jones received three more wounds from the gun fired by Harrison. At that point Blackshear went back of the counter, grabbed Harrison, saying, 'Come on, man, you're shot,' and took him out of the shop. Jones then noticed that Williams Was lying on the floor at the end of the counter. Defendant Asberry waited on the street in an automobile to provide a means of escape.

Williams died a week later of a wound received during the encounter. Death was caused by acute septicemia due to a perforating wound of the abdomen with multiple visceral injuries. The bullet that inflicted the fatal wound was fired from the gun used by Jones.

No point is made with respect to the convictions of attempted robbery.

The question, as stated by defendants, is this: 'Where a victim of an attempted robbery shoots at one of the three robbers, either in self-defense or in an attempt to frustrate the robbery, and inadvertently kills the other intended victim of the robbery, are the three robbers guilty of murder in the first degree?'

'Murder is the unlawful killing of a human being, with malice aforethought.' Pen.Code, § 187. Counsel say: 'Is it a murder under Section 187? And, is the felon responsible for a killing committed by another which killing is justifiable or excusable on the part of the person actually doing the killing? If a killing falls outside of Section 187, in that it is not an unlawful killing on the part of the actor, then we should not attribute this lawful act to someone else and make it unlawful. * * * If a killing occurs during the commission of a felony the cases clearly hold that the malice aforethought to make it murder is implied, but this is only (with the exception of certain Pennsylvania cases) if the act was the act of one of the felons.'

Penal Code, section 189, provides that murder which is committed in the perpetration or attempt to perpetrate robbery is murder of the first degree--the felonymurder rule. 'Perpetrate' means 'To do or perform; to carry through; to commit (as an offense); to be guilty of; * * * as to perpetrate a crime.' 'Perpetration' means 'Act of perpetrating; a doing, esp. of something bad morally * * *; an offensive action.' Webster's New Inter. Dict. Counsel say: 'Thus, we find that the killing is really not 'committed in the perpetration of' the robbery, but rather in an act to defeat and frustrate the robbery. We thus submit that the killing in this case does not come within the definitions set forth in Penal Code Sections 187 and 189.'

We have not been cited to, nor have we found, a California case which deals squarely with the question of criminal liability for a homicide occurring in the commission of, or attempt to commit, a felony where the fatal injury is inflicted by one not a participant in the felony.

The courts in other jurisdictions have reached different conclusions on the question of criminal liability. One line of decisions, proceeding on the theory that the doctrine of proximate cause is applicable in criminal prosecutions in determining responsibility for one's acts, supports the rule that where it reasonably might or should have been foreseen by the accused that the commission of or attempt to commit the contemplated felony would be likely to create a situation which would expose another to the danger of injury at the hands of a nonparticipant in the felony, the creation of such dangerous situation is to be regarded as the proximate cause of death from such injury. Commonwealth v. Moyer, 357 Pa. 181, 53 A.2d 736; Commonwealth v. Almeida, 362 Pa. 596, 68 A.2d 595, 12 A.L.R.2d 183, certiorari denied 339 U.S. 924, 70 S.Ct. 614, 94 L.Ed. 1346; People v. Podolski, 332 Mich. 508, 52 N.W.2d 201, certiorari denied 344 U.S. 845, 73 S.Ct. 62, 97 L.Ed. 657, rehearing denied 344 U.S. 888, 73 S.Ct. 185, 97 L.Ed. 687; Letner v. State of Tennessee, 156 Tenn. 68, 299 S.W. 1049, 55 A.L.R. 915.

Another line is to the effect that where persons engaged in the commission of a felony compel the victim of the homicide to occupy a position of danger for the purpose of aiding them in the perpetration of the felony or of effectuating their escape from the scene of the crime, such compulsion may be regarded as the proximate cause of death accidentally resulting, by reason thereof, from the act of a nonparticipant in the felony. Keaton v. State, 41 Tex.Cr.R. 621, 57 S.W. 1125; Taylor v. State, 41 Tex.Cr.R. 564, 55 S.W. 961, later app. Tex.Cr.App., 63 S.W. 330; Wilson v. State, 188 Ark. 846, 68 S.W.2d 100.

On the other hand, there is some authority for the view that one engaged in the commission of a felony cannot be held criminally liable for the accidental killing of another in the course of the transaction by one who is not a participant in the felony. Commonwealth v. Moore, 121 Ky. 97, 88 S.W. 1085, 2 L.R.A.,N.S., 719, 123 Am.St.Rep. 189, 11 Ann.Cas. 1024; Commonwealth v. Campbell, 89 Mass. 541; Butler v. People, 125 Ill. 641, 18 N.E. 338, 1 L.R.A. 211; State v. Oxendine, 187 N.C. 658, 122 S.E. 568; People v. Garippo, 292 Ill. 293, 127 N.E. 75. These cases are based on the theory that no person can be held responsible for a homicide unless the act was either actually or constructively committed by him; and that, in order to be his act, it must be committed by him or by some one acting in concert with him or in furtherance of a common design or purpose.

The principle of proximate cause applies to crime as to tort. Green, in 'Rationale of Proximate Cause,' states (p. 132):

'Causal relation is the universal factor common to all legal liability. On the other hand, the constituents of the other elements of legal liability change with every type of action. In assault they are different from what they are in deceit; in contract different from what they are in crime. They constitute the universal variants. But causation is as much an element in an accident as in battery; in a breach of contract as in murder. And it is exactly the same problem wherever found and is soluble by the same process.'

Wharton, in his treatise on homicide, says 'one whose wrongful act hastens or accelerates the death of another, or contributes to its cause, is guilty of homicide, though other causes co-operate. And he is guilty if his act was the cause of the cause of death; if the relation was causal, and the injured condition was not merely the occasion upon which another cause intervened not produced by the first injury, or related to it in any other than a casual way, then the person inflicting the injury is guilty of homicide. * * * An unconscious agent, acting in such a way as might ordinarily be expected from the defendant's act, does not break the causal connection, even in malicious homicide. * * * If a killing was the direct result of a felonious act it is murder, both under the rules of common law and under the various statutory provisions, without reference to the manner or method in which it was effected, or whether it was caused immediately by the act of the accused, or was merely the result of his acts; it is not necessary in order to convict him of murder that his actual and personal violence was the sole cause of death.' Wharton on Homicide, 3d ed., §§ 27, 37, 125.

In an article titled 'Proximate Cause in the Law of Homicide,' (12 So.Cal.Law.Rev. 19), it is said (p. 30): 'The ordinary physical responses of the human body are not intervening causes of which the law takes cognizance. * * * P. 33. The act of a responsible human agent may intervene to constitute the final effective cause of death, and yet the initial act of the defendant may retain its causal...