People v. McKee

• Decision Date: 20 November 1968
• Docket Number: Cr. 491
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Appellant, v. Donald L. McKEE, Defendant and Respondent.

Page 112

73 Cal.Rptr. 112

267 Cal.App.2d 509

The PEOPLE, Plaintiff and Appellant, v. Donald L. McKEE, Defendant and Respondent.

Cr. 491.

Court of Appeal, Fifth District, California.

Nov. 20, 1968.

As Modified on Denial of Rehearing Dec. 19, 1968.

Hearing Denied Jan. 15, 1969.

Thomas C. Lynch, Atty. Gen., by Jack R. Winkler, Deputy Atty. Gen., Sacramento, for plaintiff and appellant.

Kane & Canelo and Thomas J. Kane, Jr., Merced, for defendant and respondent.

GARGANO, Associate Justice.

On November 20, 1967, the district attorney of Mariposa County filed a complaint in the Justice Court of the Mariposa Judicial District charging respondent, Donald L. McKee, with murder in the first degree. At the conclusion of the preliminary hearing the magistrate ordered respondent to answer to a charge of involuntary manslaughter; involuntary manslaughter was the only offense named in the order of commitment. On December 14, 1967, the district attorney filed an information in the Mariposa County Superior Court again charging respondent with murder. Respondent then moved to dismiss the information under Penal Code, section 995. The superior court, however, did not precisely rule on this motion. Instead, the court directed the district attorney to file an amended information charging respondent with involuntary manslaughter. The People appeal from this order.

The facts, as gleaned from the transcript of the preliminary hearing which was conducted in the justice court, are substantially as follows.

On Thursday, November 1, 1967, respondent, a captain in the United States Air Force, went on a hunting trip with six other air force officers. The hunting party camped in the Chowchilla mountain area of Mariposa County. On the following Sunday morning at about 5:45 a.m. the group left camp on foot to hunt. Respondent and Lieutenant Haren were the first to leave. They walked to an area called the 'point' about a half a mile from the camp. Respondent took a position at a stump, and the lieutenant took his position at a log approximately 153 feet uphill from the stump (see diagram below).

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Shortly after 6 a.m. the other hunters who had taken positions nearby heard a shot. About ten minutes later three more shots were fired in rapid succession. The first shot came from a rifle and the other three from a pistol. All shots seemed to come from the direction of the 'point.'

A few moments after the pistol shots were fired Captain Wheeler, a member of the hunting party, saw respondent running toward him. Respondent said, 'I shot a man.' Captain Wheeler asked, 'Who?'--and respondent answered, 'RON.' THEN CAPTAIN WHEELER FIRED FOUR 'RAGged shots' To aLErt the Remainder of the party. These shots were heard by the other hunters about ten minutes after the first series of pistol shots. No other shots were heard in the vicinity during this time by the hunting group nor were any other persons seen.

Subsequently, several hunters went to the 'point' to investigate. They found Lieutenant Haren's body downhill from the log on its back, head lying on the right ear, feet crossed, the hands on the victim's rifle. The rifle was propped against the log. The lieutenant's red hunting cap was near an evergreen tree approximately 27 feet downhill from the body (see diagram). Neither the body nor the hat were touched. However, one of the hunters returned to the stump and retrieved respondent's rifle. It was a .270 caliber Winchester equipped with a six-power telescopic sight. The hunter unloaded the rifle and found it had one less cartridge than capacity in the magazine.

Later, police investigators found finely sprayed blood in an area around a log and bone tissue and blood on the log and the ground. Three tree limbs, which had been clipped off 34 inches from the ground, were found uphill six to eighteen feet from the body. The limb nearest the body showed traces of lead and blood. The line formed by the three clipped off limbs varied five degrees from the direct line between the log where the body was found and the stump where respondent claimed he was standing (see diagram).

Respondent rode to Mariposa with the coroner who was also sherriff of Mariposa County. He related that upon arriving at the 'point' the decedent took a stand at a log uphill from the stump where defendant took his stand. After a short wait he saw a deer in a clearing approximately 75 to 95 feet from his position. The deer was to the right of Lieutenant Haren's position (see diagram). Respondent said he did not have 'buck fever' and carefully sighted the standing deer in the scope of his rifle. Then he fired. He waited ten minutes and then went to look for the deer. Instead he found Lieutenant Haren's body, but did not touch it. He fired three shots in the air with his pistol and went to find the others.

The post-mortem examination of Lieutenant Haren's body revealed that the complete top portion of the skull had been blown away. There was a small punched out wound in the scalp over the right ear. A five-inch square area by the left eye was missing, and about 75 per cent of the brain tissue was gone. The pathologist who made the examination opined that a small metalic object, six or seven millimeters in diameter, entered the skull over the right ear and then burst into multiple fragments that exited over the left eye.

Both sides apparently agree that the court's order directing the district attorney to file an amended information charging respondent with voluntary manslaughter was tantamount to a dismissal of the murder charge even though the court did not dismiss this charge in precise words. However, the order is nevertheless equivocal and raises a jurisdictional question which appellant asks us to resolve before we direct our attention to its main arguments for reversal. Albeit it is clear under Penal Code, section 1238 that an order dismissing an information is appealable, it is questionable as to whether an order merely directing the district attorney to file an information charging a lesser or different offense is also appealable under this or any other section of the Penal Code. It is settled that the right to appeal from an order or judgment in a criminal case is purely statutory, and '* * * no appeal by the People is proper unless expressly permitted by the Penal Code.' (People v Hale, 232 Cal.App.2d 112, 125, 42 Cal.Rptr. 533, 541.)

We conclude that the court's order was for all intents and purposes a dismissal of the murder charge and should be so treated in this appeal. The court directed the district attorney to file an amended information charging respondent with involuntary manslaughter after stating that there was not sufficient evidence to hold respondent on a murder charge. ¹ Thus, the court's failure to dismiss the murder charge in so many words was an oversight which we may safely ignore. Moreover, manslaughter is a lesser but necessarily included offense of the crime of murder, and it was already possible for a jury to convict the respondent of this lesser offense even though it was not charged in the information. Therefore, the trial judge performed an idle act when he ordered the district attorney to amend the information unless he also intended to dismiss the murder charge. It is a cardinal rule that an appellate court will not presume that a trial judge performed an idle act if some other reasonable construction is clearly warranted by the record. (See Lavine v. Jessup, 48 Cal.2d 611, 614--615, 311 [267 Cal.App.2d 514] P.2d 8; B.F.G. Builders v. Weisner & Coover Co., 206 Cal.App.2d 752, 758, 23 Cal.Rptr. 815.)

We shall now direct our attention to appellant's main contention for reversal of the court's order. Briefly, appellant maintains that there was sufficient evidence to hold respondent on the murder charge and that the superior court erred in its application of the rules governing the kind of review to be given the evidence adduced at respondent's preliminary examination.

We conclude that when a district attorney files an information in the superior court, containing an offense not included in the commitment order signed by the magistrate who conducted the preliminary examination on the initial complaint, the court must uphold the information if the evidence...