People v. Kerr

• Decision Date: 17 April 1951
• Docket Number: Cr. 5162
• Citation: 229 P.2d 777,37 Cal.2d 11
• Court: California Supreme Court
• Parties: PEOPLE v. KERR.

Page 777

229 P.2d 777

37 Cal.2d 11

PEOPLE v. KERR.

Cr. 5162.

Supreme Court of California, in Bank.

April 17, 1951.

Rehearing Denied May 14, 1951.

William F. Docker and James H. Barstow, Fresno, for appellant.

Fred N. Howser and Edmund G. Brown, Attys. Gen., and Walter L. Bowers, Asst. Atty. Gen., for respondent.

SCHAUER, Justice.

This is an automatic appeal from a judgment which imposes the death penalty. (Pen.Code, § 1239(b).) Defendant pleaded guilty to a charge of murder and the trial judge, after hearing evidence, found that the crime was of the first degree and sentenced defendant to death. The judge filed a memorandum opinion which expresses his view that the murder was of the first degree both because it was committed in the perpetration of robbery and also because it was perpetrated by torture. We have concluded that the court erred in construing the facts attending the murder as constituting torture within the meaning of the law (Pen.Code, § 189) but that the finding that the murder occurred in the perpetration of robbery and, hence, is of the first degree, must be affirmed.

The evidence, including the testimony of defendant, may be fairly summarized as follows:

On July 1, 1950, defendant decided to ask his friend Troy Buckles for a loan of $200. Defendant wished to use this money in part to pay bills and in part to finance a three-day vacation trip with his fiancee. He went to the grocery store operated by Mr. and Mrs. Buckles, but did not then ask for the loan because other persons were present. On the morning of Sunday, July 2, defendant returned to the store. Defendant did not ask for the loan until all customers had left, Mrs. Buckles had gone on an errand, and Buckles had closed the store. It was then about noon. While Buckles was counting the cash and checks received, with defendant assisting him, defendant asked for the loan. Buckles refused because, he said, on previous occasions when defendant had borrowed from him the loans had not been repaid promptly. There followed an argument which grew more heated when Buckles, according to defendant's testimony, 'said that all I was getting the money for was to spend it on my girl friend' and profanely and at some length expressed his opinion of defendant's conduct and the character of defendant's fiancee. Defendant seized a meat cleaver and struck Buckles on the head. Defendant took the cleaver and the box containing the cash and checks, put them under the seat of his car, drove to his fiancee's home, and they proceeded on their holiday trip.

Defendant contends that the evidence does not show murder in the perpetration of robbery. He relies upon his own testimony that when he struck the fatal blows he had no thought of money and was acting in anger because of Buckles' insulting remarks about defendant's fiancee and that the thought of taking the money occurred to him only after Buckles was fatally wounded. It is true that if defendant's thoughts followed the course described by him the killing would not be first degree murder in the perpetration of robbery. (See People v. Hardy (1948), 33 Cal.2d 52, 59, 198 P.2d 865; People Sanchez (1947), 30 Cal.2d 560, 569, 184 P.2d 673.) But the trial court was not required to accept defendant's testimony as being conclusive on his state of mind. A reasonable evidentiary basis for the finding contrary to defendant's testimony in respect to its subjective aspects is expressed in the memorandum opinion of the trial court:

'I am firmly convinced * * * that during the quarrel which preceded the blows the defendant formed the specific intent to get the money at any cost and that he struck the fatal blows for the purpose of disabling or killing Buckles and then robbing him. The money theme runs throughout this entire case. The defendant had been keeping steady company with * * * (his fiancee) for exactly a year. He state that they planned to be married in September of this year. They had taken various trips together; to Las Vegas, to mountain resorts and to Santa Cruz. The Fourth of July holiday had been planned for a month and the defendant was definitely committed to the project, but needed more money. The temptation was too great. Buckles trusted him as a friend and asked him to assist him in checking the receipts. Over $400.00 in cash was right in front of him.

'It is my definite opinion that during the course of the fifteen minute argument while the money was being checked and counted the defendant conceived and then executed the plan to secure the money by robbery.'

Defendant urges that the following circumstances make it unreasonable to infer that he struck Buckles with intent to take the money: Mrs. Buckles, when she left the store, had said that she would 'be right back'; she and several...