People v. McCaffrey

• Decision Date: 22 June 1953
• Docket Number: Cr. 4935
• Citation: 118 Cal.App.2d 611,258 P.2d 557
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE v. McCAFFREY.

Page 557

258 P.2d 557

118 Cal.App.2d 611

PEOPLE v. McCAFFREY.

Cr. 4935.

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

June 22, 1953.

Ward Sullivan, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., and Michael J. Clemens, Deputy Atty. Gen., for respondent.

MOORE, Presiding Justice.

On December 25, 1951, appellant was a member of the police force of Los Angeles. At 5:30 a. m. he was serving as booking officer at the Lincoln Heights Jail. At that time six prisoners were booked, to wit, Manuel Hernandez, William Wilson, Jack Wilson, Elias Rodela, Eddie Nora and Raymond Marquez. By reason of the events that immediately occurred, appellant was indicted in three counts of having assaulted Nora, Jack Wilson, and Marquez 'by means of force likely to produce great bodily injury, a felony.' Penal Code, § 245. He pleaded not guilty, but following a trial he was convicted as charged in counts 1, and 3; and of 'Assault, a misdemeanor, a lesser offense necessarily included within the charge set forth in count 2.'

Appellant now contends that the evidence did not prove the batteries were of such force as to inflict 'great bodily injury'; that the court erred in refusing certain instructions, and in denying his motion for a new trial based upon asserted prejudice on the part of certain trial jurors. Appellant admits having applied unlawful force to all three victims named in the indictment and contends, therefore, that he is guilty of only simple battery. Penal Code, § 242. The point of his appeal is that there is not substantial proof that the force applied was such as was 'likely to produce great bodily injury' and therefore he is not guilty of violating section 245. Our inquiry is therefore confined to a consideration of whether under the evidence the jury could not have been justified in finding that appellant's assaults on Nora and Marquez were by 'means of force likely to produce great bodily injury'.

Assault on Nora

Nora testified that he is a civil engineer; that he had not participated in the barroom fracas between the police and civilians for which he and the other prisoners had been arrested and hence carried no injuries as a result thereof. However, at the time of reaching the jail, his head and lips were swollen; his arms, chest and back were bruised and he had a deep gash in his right shin. Before going to jail Nora and his friends were examined at the Receiving Hospital where the physician found contusions of his face, legs, knees and arms. After he had been booked and taken with his five friends into a room on the second floor, the six men were seated on a bench. A policeman commanded Nora to stand, then struck him. Thereupon, another officer conducted him across the hall to another room, ordered him to sit in a chair, then joined four others in beating Nora 'real hard' with their fists, one blow to the stomach causing a bowel evacuation. 'Then I saw what was coming so I went down on the ground and when I got down on the ground they started hitting and kicking me * * * about three or four minutes.' After a bath he was placed in his individual cell. Appellant entered it with several officers, knocked Nora down, stood upon him, 'raised up his foot, his leg and he threw it down into my side real hard,' in the area of his left kidney. The shoes appellant wore made a hard contact. Subsequently appellant returned, raised his foot as if to kick Nora, when the latter lost consciousness. Thereafter the prisoner's urine was red, as was the blood he vomited at the hospital on December 26, and continued reddish for several weeks. When Marquez left the jail he saw Nora's lips were so swollen he could not speak; his face was so bruised his appearance was 'quite' changed, and two days later still showed the effects of a violent beating; also, he was still hunched over as he walked.

Assault on Marquez

Marquez was also one of the party arrested after the barroom altercation. Along with Nora and the others he was taken to the Receiving Hospital and examined by Dr. Ho, then booked at Lincoln Heights. He was taken into the interrogation room where appellant and two other officers rained about thirty blows upon him. One struck the back of his head with his fist, picked him up and knocked him down again. He was then returned to the booking office. While waiting there he saw Hernandez and William Wilson escorted into the interrogation room from which then came a noise and commotion 'as though something was hitting the walls of the room.' Appellant visited Marquez' cell three or four times and on each occasion struck the prisoner with his fist in the face or stomach ten times without giving a reason for his cruelties. When Marquez left the jail on December 26 his condition had undergone a radical change since his entry. His face was swollen, his body black and blue, his feet were very sore, his kidneys and testicles suffered pain, and blood was in his urine.

Assault on Jack Wilson

While Jack Wilson's condition at the jail is not important so far as count 2 is concerned, yet it should be recited as further proof of the unbridled audacity of appellant and his confederates. Jack was a Marine. On leaving the jail his left eye was closed; his face and hair full of blood, his groin disclored and his body bore brown and black marks. After he had been booked he was taken to a large room. Three officers waited with rolled up sleeves. They quizzed him, knocked him against the wall and asked if he would 'hit cops anymore.' One officer observed: 'This guy's too skinny; bring in the next one.' Wilson was confined to his cell about ten hours before he was released in a condition far different from that at the time of his arrest. A black area circled his eyes; his bare feet hurt; he had bled from nose and mouth, and was still bleeding.

Corroboration

The testimony of the victims was corroborated by the following:

Officer Nett testified that the three prisoners were in pretty bad shape when they were booked. He saw Jack Wilson escorted to the interrogation room by appellant and three other officers. This prisoner was shoved around the room for about three minutes and was struck by appellant only. Officer Strange observed a fellow officer deliver a forearm smash to the shoulder of one prisoner and officer Sullivan saw two prisoners taken separately into the interrogation room and testified they were 'pushed and justled around for two or three minutes.' Prisoner Rodela saw Marquez led into a room and for two or three minutes heard 'scuffling and banging against the wall' and when Marquez returned his hair was 'all mussed up, his clothes were off to the side and he was shaking his head.' Also, he saw Nora taken into the interrogation room and heard sounds of scuffling and banging the walls. The same facts given in testimony by the above named corroborating witnesses were testified to by prisoner Hernandez.

Appellant's Testimony

Appellant now assumes the air of injured innocence. He waives aside the factual mountain of the prosecution evidence, presents the testimony he gave as though it had been adopted by the jury and as though the State were trying to overcome an established record of one found not guilty. He denied having entered the cell of any victim, or that he struck Marquez or kicked Nora. But he admits that the prisoners looked bad when he first saw them; that he struck each of them three or four times, possibly more; that he was angry with them at the time and entered the interrogation room with each of them. By such admissions he did not dispel the testimony of the victims that they had been savagely attacked by him; that they were knocked to the floor, struck on the face, nose and eyes, kicked in the stomach, ribs and groins and were, in the cases of Nora and Marquez, left with injured testicles and kidneys. That the assaults were made with 'means of force likely to produce great bodily injury' was a fact in each instance for the determination of the jury. It was for them to hear the victims talk, to see their behavior as they detailed the tragedies, their reactions to cross-examination, their apparent powers of resistance. By observing the men who had been assaulted, the jury--as reasonably intelligent men and women--could fairly estimate the likelihood of the batteries to 'produce great bodily injury.' People v. Pullins, 95 Cal.App.2d 902, 904, 214 P.2d 436, 437; People v. Orona, 72 Cal.App.2d 478, 486, 164 P.2d 769; People v. Score, 48 Cal.App.2d 495, 498, 120 P.2d 62; People v. Bumbaugh, 48 Cal.App.2d 791, 797, 120 P.2d 703. While the proof indicates a serious condition in both Nora and Marquez after the assaults, it is not indispensable to a verdict under section 245 that 'great bodily injury' be the actual result. If the force applied is found to have been likely to effect such a result, the statute is violated. In People v. Score, supra, it was held that blows administered with the fist to the face justified the verdict of guilt under section 245.

It is not essential to a conviction of such charge that the victim be held over a blazing furnace or be fired upon with an atomic weapon. The stroke of a fist or the kick with a shoe has invalided many a man or caused him to go into decline, or to suffer neurasthenic disorders for his remaining years. But whether the blow of a fist or the kick of a shod foot was of such force as was likely to produce great bodily injury was a question for the jury. See People v. Hinshaw, 194 Cal. 1, 17, 227 P. 156; People v. Bumbaugh, supra; People v. Nudo, 38 Cal.App.2d 381, 385, 101 P.2d 162. In People v. Hinshaw, supra, the court held, 194 Cal. at page 16, 227 P. at page 163, that the language, 'means' and 'force,' can be interpreted in the disjunctive. In People v. Bumbaugh, supra, it was held that in view of the injuries sustained by the complainant, as well as the manner of the assault upon her, the jury was authorized to conclude that the...