People v. Van Buskirk, Cr. 2357

• Decision Date: 22 October 1952
• Docket Number: Cr. 2357
• Citation: 249 P.2d 49,113 Cal.App.2d 789
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE v. VAN BUSKIRK.

Page 49

249 P.2d 49

113 Cal.App.2d 789

PEOPLE v. VAN BUSKIRK.

Cr. 2357.

District Court of Appeal, Third District, California.

Oct. 22, 1952.

Carlos J. Badger (of Gant & Badger), Modesto, for appellant.

Gail A. Strader, Deputy Atty. Gen., for respondent.

PEEK, Justice.

This is an appeal by defendant from his conviction of attempted murder and from the order denying his motion for a new trial.

Defendant, his wife and daughter had been living with defendant's sister and her husband, Mr. and Mrs. Brown. The complaining witness, Brown, had not seen the defendant for approximately two weeks prior to the date of the alleged offense.

After writing a note, which is hereinafter set forth at length, defendant proceeded to the home of his brother-in-law, armed with a 25-caliber Colt automatic. No one was there on his arrival, but shortly thereafter the Browns and their three children, and Mrs. Van Buskirk and her child, arrived in the Brown car. Defendant was on the front porch when they drove up. Defendant walked over to the left front fender of the car. Brown got out and passed around the front of the car on the way to help the others out of the car. Defendant then said to Brown that he 'came out to settle it all,' that he was 'going to kill us all.'

Brown hurried the women and children into the house. When he returned defendant was standing by the left front fender with his right hand in his hip pocket. As Brown approached defendant made a statement to the effect that Brown 'could beat the hell out of him, but he had a gun and it was loaded.' Brown attempted to talk him out of his plan to kill all of them but defendant brought the gun out of his pocket, raised it to an angle, apparently pointing over Brown's head and fired. After the shot was fired defendant pointed the gun directly at Brown who continued to try to talk him out of his plan. Defendant replied he was 'an old man, he had lived his life and he didn't care what happened to him.' He also said he knew the persons in the house were calling the police but 'we would all be dead before they got there.' At that moment the sheriff's car turned the corner. Defendant, noticing this, again stated he was going to kill them all, whereupon he pulled the trigger of the gun, but it failed to fire. He then turned and ran to the side door of the house, trying to gain entrance into the house. Brown, after the misfire, ducked down, using the car as a shield. While standing by the door defendant ejected a shell and put another in the gun and again leveled it at Brown. A short time later the officers found defendant was then hiding in the bushes near the house.

The gun was in such a worn condition that after being fired it would not always recock in a manner which would successfully allow a second shot merely by squeezing the trigger, but it could be properly recocked by hand so it would fire even when such situation did occur.

Defendant's statement after being arrested was to the effect that his only purpose in going to the Brown home and his reason for firing the shot over Brown's head was merely to scare the Browns and his wife so that he would be allowed to visit his daughter. However upon his person was found a note addressed to the district attorney, which read:

'The reason I am killing my wife and her in laws is because they will not let me see my baby and any one that shuts me off from seeing my baby is headed for hell. My brother-in-law is first, and my sister-in-law is second, and my wife is third, and I am fourth. I am sorry to do this but it has been coming on for about 8 months. The baby needs her mother and her dad next, but the sister-in-law does not believe it. The sister-in-law is the cause of it all because she does not like me, never has.

'A. G. Van Buskirk.'

Because of defendant's failure to comply with the Rules on Appeal, particularly with regard to Rule 15, the Court has found it extremely difficult to ascertain the exact grounds upon which defendant bases his appeal. However we will assume that two contentions have been made, the first, the usual contention that the evidence is insufficient to sustain the conviction, and, the second, that the court erred in failing to give certain instructions proposed by defendant. Both contentions are wholly without merit.

If the Court is correct in its assumption that the defendant first attacks the sufficiency of the evidence to support the verdict, such attack appears to be upon the theory that since the first shot was not fired at Brown but was fired over his head and thereafter defendant could not fire the gun because of mechanical difficulties hence he was incapable of committing the crime of attempted murder. That, in any event, his only purpose in going to the Brown home was to frighten his wife and the Browns into allowing him to see his daughter.

The crime of attempted murder is complete if there is a concurrence of the intent to commit such crime with a direct, although ineffectual, act done towards its commission, People v. Miller, 2 Cal.2d 527, 42 P.2d 308, 98 A.L.R. 913; People v. Lee Kong, 95 Cal. 666, 30 P. 800, 17 L.R.A. 626; People v. Grant, 105 Cal.App.2d 347, 233 P.2d 660; People v. Neal, 97 Cal.App.2d 668, 218 P.2d 556; People v. Parrish, 87 Cal.App.2d 853, 197 P.2d 804; People v. Lanzit, 70 Cal.App. 498, 233 P. 816, and if the means used by the defendant and the surrounding circumstances make the crime apparently possible. People v. Lee Kong, supra; People v. Fiegelman, 33 Cal.App.2d 100, 91 P.2d 156; In re Magidson, 32 Cal.App. 566, 163 P. 689; 7 Cal.Jur. 879, sec. 33; 22 C.J.S., Criminal Law, § 77 p. 142; 14 Am.Jur. 817, sec. 69.

In the instant case the evidence shows that he went to the Brown home and there met his intended victims; that while standing near Brown he made several threats to...