People v. Neal, Cr. 4444

• Decision Date: 22 May 1950
• Docket Number: Cr. 4444
• Citation: 97 Cal.App.2d 668,218 P.2d 556
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE v. NEAL.

Page 556

218 P.2d 556

97 Cal.App.2d 668

PEOPLE v. NEAL.

Cr. 4444.

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

May 22, 1950.

Houser, Houser & Spence, and J. Everett Houser, Long Beach, for appellant.

Fred N. Howser, Attorney General, and Gilbert Harelson, Deputy Attorney General, for respondent.

VALLEE, Justice.

The court, sitting without a jury, convicted the defendant of: Count 1. Attempt to murder Theodore R. Raymond. Count 2. Attempt to murder Myrtle Mae Raymond. Count 3. Arson. He was also accused for a prior conviction of burglary with respect to each count. He admitted the prior conviction. He was sentenced to state prison on each count, the sentences for attempt to murder to run consecutively, the sentence for arson to run concurrently with the others. Defendant appeals from the judgment.

The offenses were charged to have been committed about 4:15 a. m. on June 4, 1949. Theodore R. Raymond and Myrtle Mae Raymond were husband and wife. They had known defendant about 16 months and had lived in the same trailer court in Long Beach as defendant and his wife. On June 4, 1949, the Raymonds were living in a frame house in Long Beach. Defendant's wife and two children lived in the Raymond house with the Raymonds from May 16 to May 28, 1949. Defendant was confined in the county jail from December 30, 1948, to May 27, 1949.

On the night of June 4, 1949, Mr. and Mrs. Raymond occupied a bed in their home in a room with a screened window. The foot of the bed was near the window which was open. About 4:15 a. m. Raymond was awakened by a dog jumping on his chest, scratching and growling. He saw a flame coming through the window. In a moment the clothes of Mr. and Mrs. Raymond, her hair, the bed, and the interior of the bedroom were afire. Mr. and Mrs. Raymond were severely burned. He was in a hospital 8 weeks; she, 7 weeks.

The fire was of incendiary origin. Gasoline had been thrown through the window across the foot of the bed. The court could reasonably have inferred that a considerable amount of gasoline had been thrown through the window. The outside of the house was only slightly burned. The bedroom and the bed were badly burned. A garbage can which had been in the fire, containing a small amount of gasoline, was found on the ground about 10 feet from the bedroom window.

Shortly before the fire, during the time defendant was in the county jail, he wrote 4 letters to Raymond. The letters contained the following pertinent matters: Defendant advised Raymond to leave him and his family alone, that if he did not 'I would make you sorry'; he called Raymond a 'crook'; he indicated that there was some improper relation between Raymond and defendant's wife,--that they had conspired to put him in jail; he threatened to prosecute Raymond; he said that Raymond had tried to ruin his life, '[t]hat is one mistake you will pay for. By the time you get this letter, there will be two cooked geese, you and Ivy [defendant's wife], and maybe, Mert [Mrs. Raymond]'; he accused his wife and Raymond of having defrauded the county; he said Raymond had wrecked his home, saying 'You have sure done me plenty dirty, Ted [Raymond]. You tried to help send me to San Quentin but that failed then you called the police and said that stuff under my trailer was stolen but it wasn't. You even turned Ivy against me'; he said that Raymond was sitting on a keg of dynamite and 'Just think what I can do when I get out,' and 'If you [Raymond] think I am going to forget about what you have done to me, you are crazy.'

Raymond testified that in December, 1948, at a time when he and defendant were standing together as a police car driven by a police officer passed by, defendant said, 'Five gallons of gas and a match would do that son of a bitch a lot of good.' Mrs. Raymond testified substantially to the same effect. Another witness testified that in December, 1948, as he and defendant were driving past a police car parked alongside of a house, defendant said, '[T]here must be an officer lives there because there is a cruiser car sitting in the driveway, and the said what a man should do was take a can of gas and throw it on the house and strike a match and burn the house down.'

Defendant was released from the county jail on May 27, 1949, and immediately went to Long Beach. His wife and children were living in the Raymond home at the time. About 11:30 that night a rock was thrown through the bathroom window of the Raymond house and the air was let out of the tires of three automobiles parked outside of the house.

A witness testified that about 10:00 or 11:00 p. m. the night of June 3, 1949, in a bar in Long Beach, he had a conversation with defendant in which defendant said he was going to get even with somebody, to watch the headlines in the paper the next day. On June 5, after seeing a newspaper account of the fire at the Raymond house, the witness reported the conversation to the police. About October 10, 1949, defendant wrote a letter to this witness, threatening him if he testified against defendant. Raymond testified that about 12:20 a. m. on the night of June 3, 1949, he chased defendant out of his back yard.

On June 13, 1949, defendant was in Bakersfield. He knew the police were looking for him as a suspect in the Raymond case. He then changed his name to Robert Allen to conceal his identity and left for Northern California, finally arriving in Oakland. In Albany he bought an automobile and had the certificates and contract made out in the name of Robert Allen. He returned to Southern California about August 19, 1949. About midnight or after on the night of August 20, defendant went to the Raymond house. He was looking for the Raymonds. They were not in the house. At the time he had 5 gallons of gasoline in a can in his automobile. He was arrested at Torrance on August 21, driving the automobile. A five-gallon can filled with gasoline was on the floor of the automobile at the time of the arrest. When asked why the car was registered in the name of Robert Allen, defendant said he did not want to take any chances of being traced through the registration. On the way to the police station, defendant asked an officer, 'How are the people?' At the police station he said the Raymonds 'were a bad bunch'; that 'he had had several run-ins with them and fights, and it was just a question of him or them.'

The testimony of the defendant varied in a number of particulars from a statement he made to police officers and the district attorney after his arrest.

As grounds for reversal, defendant contends: 1. There was no substantial evidence to connect him with the crimes charged. 2. There was no proof of a specific intent to commit murder. 3. The court erred prejudicially in the admission of evidence. 4. The court erred prejudicially in receiving hearsay evidence in aggravation of punishment.

The evidence was sufficient to connect the defendant with the crimes charged. In contending that it was not, defendant argues the credibility of the witnesses and the weight of the evidence, matters with which we have no concern.

In contending that there was no proof of a specific intent to murder either Mr. Raymond or Mrs. Paymond, defendant assumes, but makes it plain that he does not admit, that he threw the gasoline and started the fire. Where an attempt to commit a crime is charged, two important elements are essential to conviction: a specific intent to commit the crime, and a direct ineffectual act toward its commission. People v. Miller, 2 Cal.2d 527, 530, 42 P.2d 308, 98 A.L.R. 913. 'Specific intent as an element of a crime may be proved by showing circumstances surrounding the act from which it may be inferred by the court as a trier of facts. Direct proof is not required, but the circumstances must be such as would justify the court in inferring the intent with which the act was done. People v. Maciel, 71 Cal.App. 213 .' People v. Rothrock, 21 Cal.App.2d 116, 119, 68 P.2d 364, 366. Defendant declared that: Raymond was going to pay for ruining his life and was going to be a 'cooked' goose, and maybe Mrs. Raymond; Raymond was sitting on a keg of dynamite; 'It was just a question of him [defendant] or them [the Raymonds].' The declarations of defendant, together with the circumstances surrounding the commission of the offenses, were sufficient to warrant the trial judge in concluding that defendant had a specific intent to murder Mr. and Mrs. Raymond.

The fact that the intent to murder may have been directed toward Mr. Raymond did not the less make the crime complete as regards the charge of attempt to murder Mrs. Raymond. '[W]here one intends to assault or kill a certain person, and by mistake or inadvertence assaults or kills another in his stead, it is nevertheless a crime, and the intent is transferred from the party who was intended to the other.' People v. Wells, 145 Cal. 138, 140, 78 P. 470, 471; People v. Rothrock, 21 Cal.App.2d 116, 119, 68 P.2d 364; People v. Walker, 76 Cal.App.2d 10, 15, 172 P.2d 380.

Defendant contends the court erred in admitting in evidence over his objection: 1. The declarations of defendant made in December, 1948, to Raymond and another witness as to what could be done with five gallons of gasoline and a match. 2. The happenings on the night of May 27, 1949. 3. The declaration of defendant made on the night of June 3, 1949. 4. The testimony of Raymond that about 12:20 a. m. on the night of June 3, 1949, he chased defendant out of his back yard.

There was no error in admitting the items of evidence mentioned. The declarations as to what could be done with five gallons of gasoline and a match were relevant and material to show the state of mind of defendant. They were admissible to prove that he had an inclination to pyromania. His interest in gasoline and the use of it was a circumstance tending to identify him as the one who committed the crimes. People v. Adamson, 27 Cal.2d 478, 485, ...