People v. Morlock, Cr. 5799
| Decision Date | 07 February 1956 |
| Docket Number | Cr. 5799 |
| Citation | 292 P.2d 897,46 Cal.2d 141 |
| Parties | The PEOPLE of the State of California, Plaintiff and Respondent, v. Eugene Augustine MORLOCK, Defendant and Appellant. |
| Court | California Supreme Court |
Howard A. Muhleman, San Diego, for appellant.
Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., and Raymond M. Momboisse, Deputy Atty. Gen., for respondent.
This is an automatic appeal, Pen.Code, § 1239, from a judgment of the Superior Court of San Diego County imposing the death penalty.
Defendant Eugene Augustine Morlock was charged with the murder of one Annie Morales; he was also charged with her rape and with assault with a deadly weapon with intent to murder George Piepa. He pleaded not guilty and not guilty by reason of insanity to all three charges. After trial by jury he was found guilty as charged and sane at the time of the commission of the offenses. A motion for a new trial was made and denied and a judgment imposing the death penalty was rendered.
There is little or no dispute as to the facts. On May 11, 1955, Gus Pico, George Piepa, Frank Cuervas, defendant's uncle, and Annie Morales were drinking together in a two-room dwelling on the Rincon Indian Reservation. At approximately seven o'clock in the evening, defendant in the company of Lindy Parcel (a co-defendant) broke down the door of the house with a fence post defendant had picked up outside and which he used as a battering ram. He then asked Piepa for a drink while still holding the post in a threatening manner. Piepa informed him there was nothing to drink, whereupon defendant struck Piepa with his fists knocking him to the floor. The record disclosed that defendant was six feet four inches tall and weighed over 200 pounds. Annie Morales, the common-law wife of Piepa, came through the opening from the next room and may have started to attack the defendant. He thereupon struck her in the face with his fists knocking her to the floor where he then kicked her three or four times in the face with his steel-toed boots. He left her lying on her back on the floor of the bedroom where she fell and went back into the kitchen where he struck Piepa with the flat side of an axe he had found in the house and then kicked him. Parcel took the axe away from him, but defendant found a broken bread knife with which he proceeded to cut Piepa. The knife was taken from him by Parcel. Defendant then went into the bedroom where he had sexual intercourse with Annie Morales who had not moved since defendant had beaten and kicked her. Frank Cuervas then, at defendant's invitation, had intercourse with the unconscious woman. Defendant and Frank then covered the woman with a blanket and left after taking a bottle of wine from the house. Parcel testified that before entering the house defendant said he was going to 'clobber' Piepa because Piepa had beaten his uncle.
Annie Morales' face was crushed and her lips lacerated; she suffered a fracture of the skull. Medical testimony was to the effect that despite her severe injuries she could have lived from one-half an hour to several hours after the wounds were inflicted. Piepa, although severely beaten, recovered and testified at the trial. Defendant did not take the stand in his own defense. A transcription of answers by defendant to questions asked him by a member of the sheriff's office was admitted in evidence. There is no contention that the answers were not freely given. The questions and answers thereto fully corroborate the facts heretofore set forth.
The People argue that defendant was guilty of first degree murder in that the death of Annie Morales occurred in the commission of (1) burglary; (2) rape; and (3) mayhem. Defendant contends that the evidence is insufficient to establish that the murder occurred in the perpetration of rape, burglary, or mayhem; that the district attorney was guilty of prejudicial misconduct; that the court committed prejudicial error in giving certain instructions and in failing to give an instruction proposed by defendant.
Section 459 of the Penal Code provides that 'Every person who enters any house, room * * * with intent to commit grand or petit larceny or any felony is guilty of burglary.' (Emphasis added.) Section 245 of the Penal Code provides that 'Every person who commits an assault upon the person of another with a deadly weapon or instrument, or by any means of force likely to produce great bodily injury is * * *' guilty of a felony. The undisputed evidence shows that defendant broke into the house of Piepa with a fence post with the avowed intent to 'clobber' Piepa. Section 460 of the Penal Code provides that any person armed with a deadly weapon, 'or who while in the commission of such burglary arms himself with a deadly weapon, or who while in the commission of such burglary assaults any person' is guilty of burglary of the first degree. The co-defendant, Parcel, testified as to defendant's intent to assault Piepa before they arrived at Piepa's house. He and defendant (in the interrogatory) both stated that defendant armed himself with the fence post prior to reaching Piepa's house. In a prosecution such as this, the intent to commit a felony after breaking down the door and entering may be inferred from the facts and circumstances disclosed by the evidence, People v. Franklin, 106 Cal.App.2d 528, 235 P.2d 402, which includes defendant's threat to clobber Piepa, his use of the fence post, and his conduct upon entering the house. A deadly weapon is one likely to produce death or great bodily injury. People v. Fuqua, 58 Cal. 245; People v. Leyba, 74 Cal. 407, 16 P. 200. In People v. Cook, 15 Cal.2d 507, 517, 102 P.2d 752, 757, the deceased met her death by being struck with a piece of two-by-four about two feet long. The court in the Cook case in holding that the two-by-four was a deadly weapon quoted from People v. Raleigh, 128 Cal.App. 105, 108, 110, 16 P.2d 752, as follows: "When it appears * * * that (such) an instrumentality * * * is capable of being used in a 'dangerous or deadly' manner, and it may be fairly inferred from the evidence that its possessor intended on a particular occasion to use it as a weapon should the circumstances require, we believe that its character as a 'dangerous or deadly weapon' may be thus established, at least for the purposes of that occasion." The fence post involved here measured four feet eleven inches in length, was four inches by four inches square and weighed ten pounds, and therefore comes well within the definition of a 'deadly weapon' as defined in the Raleigh case, supra. Defendant contends that if this was a burglary, the crime was complete upon the entry; that Annie Morales was, therefore, not killed in the perpetration of burglary but was killed in the perpetration of an assault upon Piepa. Defendant's contentions are without merit. The statute, Pen.Code, § 189, provides that all murder therefore, not killed in the perpetration of or attempt to perpetrate burglary is murder of the first degree. As we have heretofore pointed out burglary is committed when a person enters any house 'with intent to commit * * * any felony', Pen.Code, § 459, and that section 245 of the Penal Code provides that a person is guilty of a felony when he commits an assault upon the person of another with a deadly weapon 'or by any means of force likely to produce great bodily injury.' It may justifiably be inferred from the evidence here that defendant entered the house of Piepa with intent to assault him with the fence post with which he had armed himself prior to the entry and that such fence post was a deadly weapon within the meaning of the term. Defendant relies upon the rule set forth in People v. Carnine, 41 Cal.2d 384, 260 P.2d 16, where, in reversing the judgment of conviction, we held that an instruction that a killing was not first degree murder in the perpetration of robbery if the thought of taking the money from the victim occurred only after the termination of the attack, should have been given. Defendant's argument is, apparently, that he did not intend to assault Annie Morales when he entered the house and that he formed the intent to steal the bottle of wine after the assaults had been completed. A specific intent to steal is an essential element of the crime of robbery, People v. Sanchez, 35 Cal.2d 522, 219 P.2d 9, as distinguished from the crime of burglary, where the crime is complete when the one accused has entered the house of another with intent to commit any felony. It is immaterial to the guilt of defendant that Annie Morales was the one killed rather than Piepa whom he intended to assault. We said in People v. Coefield, 37 Cal.2d 865, 868, 236 P.2d 570, that a killing is murder of the first degree by force of section 189 of the Penal Code, regardless of whether it was intentional or accidental. See, also, People v. Milton, 145 Cal. 169, 78 P. 549; People v. Valentine, 28 Cal.2d 121, 135, 169 P.2d 1; People v. Lindley, 26 Cal.2d 780, 791, 161 P.2d 227; People v. Boss, 210 Cal. 245, 249, 290 P. 881; People v. Denman, 179 Cal. 497, 498, 177 P. 461.
We conclude, therefore, that the evidence was more than sufficient to sustain the judgment of conviction on the theory that the killing was perpetrated in the commission of burglary. For that reason it is not necessary to discuss defendant's contention that the evidence was insufficient to show that the homicide...
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...551, 554(1), 346 P.2d 415; People v. Davis (1959) 175 Cal.App.2d 365, 369(6), 346 P.2d 248.) Thus, in People v. Morlock (1956) 46 Cal.2d 141, 146(5), 292 P.2d 897, 900, we distinguished on this basis the crime of robbery, requiring a specific intent to steal, from that of burglary, 'where t......
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