People v. McAuliffe

• Decision Date: 10 October 1957
• Docket Number: Cr. 5859
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff, Respondent and Appellant, v. Richard Gilbert McAULIFFE, Defendant, Respondent and Appellant.

Page 381

316 P.2d 381

154 Cal.App.2d 332

The PEOPLE of the State of California, Plaintiff, Respondent and Appellant, v. Richard Gilbert McAULIFFE, Defendant, Respondent and Appellant.

Cr. 5859.

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

Oct. 10, 1957.

Edmund G. Brown, Atty. Gen., William E. James, Deputy Atty. Gen., Herbert C. Grundell, Dist. Atty., San Luis Obispo County, and W. R. Fredman, Deputy Dist. Atty., San Luis Obispo County, San Luis Obispo, for plaintiff, respondent, and appellant.

Stanley T. Tomlinson and Chas. H. Lynch, Santa Barbara, for defendant, respondent, and appellant.

VALLEE, Justice.

Defendant was charged with the murder of his uncle, John Thomas McAuliffe. He was tried by a jury which found he was guilty of first degree murder and fixed the penalty as life imprisonment. Defendant moved for a new trial and for reduction of the degree of the offense in accord with section 1181, subd. 6, of the Penal Code. The court reduced the degree of the offense to second degree murder and denied the motion for a new trial. Defendant appeals from the judgment and the order denying his motion for a new trial. The People appeal from the order reducing the degree of the offense to second degree murder.

Defendant's Appeal

Defendant first claims the evidence is insufficient to support the finding that he was guilty of second degree murder, and that as a matter of law the homicide was justifiable: it was committed in self-defense.

The principal characters were John Thomas 'Jack' McAuliffe, the deceased; defendant Richard Gilbert McAuliffe; John Charles McAuliffe, defendant's brother; Virginia McAuliffe, wife of the deceased; and Susan McAuliffe, daughter of Virginia.

On August 8, 1956 defendant and his brother John drove from San Diego to Cayucos in San Luis Obispo County in John's pickup truck to visit with his uncle, Jack, at the latter's ranch during deer season. Defendant lived in El Cajon near San Diego. During the days following, they assisted Jack around the ranch and hunted with him. Their relations were amicable.

On August 13 defendant and Virginia went to San Luis Obispo. On the return trip they stopped at several bars, consumed beer, and Virginia bought a jug of wine. When they arrived at the ranch Virginia drank some of the wine, 'she was really putting it down.' Jack raised 'the devil about it,' 'jumped' on defendant and accused him of buying the wine for her. Defendant told Jack all he bought her was a couple of bottles of beer, that she got the wine herself; Jack 'just snorted,' and walked away. John took Jack's side in the argument. That night defendant slept in the same room with his brother, John.

The next morning, August 14, 1956, Jack left early to go to Minetti's ranch to help with the harvesting. Later defendant and his brother, John, went to Cayucos. They spent the afternoon playing pool and drinking beer, wagering a drink of beer on the outcome of each game of pool. A dispute arose between them--John claimed defendant owed him a glass of beer; defendant claimed he did not. Defendant bought a glass of beer for himself, took one sip, and left for the restroom. While he was gone John drank defendant's glass of beer, left the saloon, and concealed himself in an adjoining building. When defendant returned from the restroom he asked who had drunk his beer. He was told his brother had. Defendant then became 'pretty ornery,' said 'I'm going to get that dirty so-and-so,' and left the saloon. Defendant looked for John but did not find him. He then got a piece of 2-inch pipe about 18 inches long, went to John's pickup truck, said, 'Well, I'll fix him. I'll best his ignition switch, where he'll have to walk,' and hit the ignition switch with the pipe. John saw what was going on, shouted to defendant to stop or he would have him arrested. As John approached, defendant swung the pipe at his head. A scuffle took place. John testified that during the scuffle defendant told him 'he was going to get both of us; he said we thought we were pretty smart S-B's, that he was going to get both of us before twelve o'clock.' A bystander testified he heard defendant say 'he'd have him [John] under the sod, before the night was over.' A piecemaker quieted the brothers and offered to buy each a beer. They went to a saloon and had a beer. The bystander suggested the brothers shake hands. John was willing but defendant refused. About 5:30 p. m. John said to defendant, 'If you're not ready to go back to the ranch by six o'clock, I'm going to go off without you.' John then left the saloon.

John left Cayucos alone in his pickup truck about 6 p. m. Defendant stayed in the saloon and when the bartender refused to serve him more beer he left and went to another. On John's return to the ranch he, Virginia, and Susan drove to the ranch where Jack was working. There John remarked to Minetti, 'Richard threatened to kill him in El Cajon. He threatened me today. The third time he'll probably get me.' The women returned to the McAuliffe ranch and hid two rifles belonging to the brothers. Another rifle belonging to Jack was in a corner of the kitchen. The women did not hide Jack's rifle. Jack and John returned to the McAuliffe ranch about 8:30 p. m. After supper they went upstairs to work on a new cartridge reloading machine. The machine was in an unused bedroom on the second floor.

Defendant left Cayucos about 7 p. m. and walked seven miles to the ranch. On the way he was 'pretty ornery' and 'cussed his brother out.' When he arrived at the ranch he stopped at John's pickup truck and slammed the door. John heard the door slam; Jack said, 'See who that is'; John opened the window, saw it was defendant, and said in a loud voice, 'Get the hell away from the truck.' As defendant approached the house he called out, 'You S-B's have had it.'

Virginia and Susan were in the living room. It was about 10:30. On hearing defendant approach the house, Susan went upstairs and told Jack and John defendant had arrived. Defendant entered the house through the kitchen and walked into the living room. As he did so he said to Virginia, 'You dirty so-and-so's, what did you take the pick-up and make me walk seven miles home?' John testified he heard defendant say this. In the living room defendant looked toward the place where his rifle was usually kept. Not finding it, he walked back to the kitchen. After wandering around several minutes he picked up Jack's rifle, pumped it, forcing a shell into firing position. Virginia told him he had better put the gun down. He told her to mind her own business. Defendant walked out the back door and started up the stairs to the second floor, followed by the two women. As he started up the stairs Virginia shouted to Jack and John to watch out, that he was coming up with a gun. Defendant told her to shut up or he would shoot. As he neared the top of the stairs defendant said, 'You wise S-B's think your're pretty smart. You stole my pickup and my rifle, and you let me walk seven miles from the town.'

Jack and John were in the loading room with the door closed. They heard what defendant said. Jack was 6 feet 2 inches tall and weighed 263 pounds. Jack told John to step back of the door, said 'I'm going to ask him to leave,' that he didn't want any drinking there and was going to ask him to take his gear and leave, 'head off down the road.' John said, 'Well, let me talk to him.' Jack replied in a loud voice, 'No, if he gets smart, I want first swing at him.' Susan testified she heard Jack say, 'Let me have the first swing at him.' John went behind the door. Jack went out of the door at a quick pace into a hallway leading to the stairs, with his hand raised. He was not armed. It was 11 feet 6 inches from the door to the top of the stairs. As Jack approached the stairs defendant fired. The shot was fatal. The bullet entered the mid-portion of the chest, hit the breast bone, went through the base of the heart just below the breast bone, went through the vertebrae, and wound up underneath the skin in the upper lumbar area of the back. After the shooting Jack was lying in the hall with his head near the top of the stairs. Virginia testified she did not hear any voices upstairs before the sound of the shot. Defendant went down the stairs and said to Virginia, 'Call the sheriff. I shot the S-B. Tell him to come and get me.' Defendant was arrested a short distance down the road from the house about 11:25 p. m. He was sober.

Defendant's version of the events prior to his return to the ranch on the night of the shooting conformed generally to the evidence of the People. He testified that after the dispute in the saloon at Cayucos he was 'pretty mad,' 'got pretty ornery,' and went looking for John; John pulled a knife in the scuffle at the pickup truck; he said to John, 'You cut me with that knife, you won't live to tell about it.' He denied otherwise threatening Jack or John. He thought the rifle he picked up in the kitchen was his and he was going up to bed. He clicked the loading mechanism to assure himself a shell was not in the chamber. As he was going up the stairs, Virginia yelled, 'Look out! Dick's coming upstairs, and he's got a gun.' He said, 'Shut up! I'm not going to shoot anybody. I'm just going up and go to bed.' He walked on up the stairs, heard a shuffling of feet, heard a door open, turned around, and there was his uncle coming out the door with his hands behind him. His uncle closed the door and yelled, 'I'll kill you, you lousy bastard.' He levered a shell into the chamber of the rifle. His uncle came charging at him with his right hand swinging. He knew his uncle was very violent, and thought he saw a knife in his left hand and that he was going to kill him; he levered a shell into the chamber; aimed the gun at his uncle's legs; yelled, 'Halt! Stop!' Jack kept coming; he jumped back and pulled the trigger.

Shortly after his arrest defendant told an assistant...