Opinion
Hearing Granted Jan. 11, 1940.
Appeal from Superior Court, Los Angeles County; Thomas L. Ambrose, Judge.
Martin M. Snyder was convicted of attempted murder, and he appeals.
Reversed, and new trial ordered.
COUNSEL
Jerry Giesler, of Los Angeles, and Ward Sullivan, of San Francisco, for appellant.
Earl Warren, Atty. Gen., Bayard Rhone, Deputy Atty. Gen., and Buron Fitts, Dist. Atty., and Ugene U. Blalock, Deputy Dist. Atty., both of Los Angeles, for respondent.
OPINION
McCOMB, Justice.
From a judgment of guilty of attempted murder and from an order denying his motion for a new trial after trial before a jury, defendant appeals.
Viewing the evidence most favorable to the People (respondent), the essential facts are:
October 15, 1938, defendant, while sitting in the music room of the home of Myrl Alderman in company with Myrl Alderman, Ruth Etting, and Edith Snyder, after a brief discussion suddenly fired two shots in the direction of Myrl Alderman from a .32 caliber revolver, which he held in his hand, one of the shots striking Mr. Alderman. Further discussion of the evidence is unnecessary, since there is no attack upon the sufficiency of the evidence to sustain the verdict of guilty.
Defendant relies for reversal of the judgment on this proposition:
The trial court committed prejudicial error in instructing the jury as follows:
A. "The Court further instructs the jury that the intent or intention with which an act is done is manifest by the circumstances connected with the offense and the sound mind and discretion of the accused."
B. "A person must be presumed to intend to do that which he voluntarily and willfully does in fact do, and must also be presumed to intend all the natural, probable and usual consequences of his own acts." C. "The Court further instructs the jury that the words ‘Malice’ and ‘Maliciously’ import a wish to vex, annoy or injure another person, or an intent to do a wrongful act established either by proof or by presumption of law."
This proposition is tenable. Defendant was charged with attempted murder. A specific intent to kill is an essential element in the crime of attempted murder. People v. Miller, 2 Cal.2d 527, 533, 42 P.2d 308, 98 A.L.R. 913. It is necessary for the prosecution to allege and prove as a fact this specific intent, and such specific intent may not be predicated upon a presumption. People v. Miller, supra.
Mr. Presiding Justice Conrey, in People v. Ramirez, 64 Cal.App. 358, 360, 221 P. 960, 961, thus accurately states the rule:
"The court instructed the jury that— ‘A person must be presumed to intend to do that which he voluntarily and willfully does in fact do and must also be presumed to intend all of the natural, probable, and usual consequences of his own acts.’ Appellant contends that this instruction violates the rule that where specific intent is an essential element of the crime, the fact of such intent must be proved. There is no doubt that the rule is correctly stated. Where the specific intent to kill and murder is an element of the offense charged, it is necessary that the existence of that intent be established as a fact by such evidence as will warrant the conclusion to that effect by the jury. It is not to be presumed from the commission of the unlawful act, though the jury may infer it from the acts and conduct of the defendant. This is true wherever the crime falls short of homicide, even if it be the crime of assault with intent to commit murder."
Again in People v. Jones, 160 Cal. 358, 369, 117 P. 176, 181, Mr. Justice Henshaw, speaking for our Supreme Court, said:
"The court instructed the jury as follows: ‘You are instructed that in determining the intention of the defendant at the time of the transaction complained of it is important to consider the means used to accomplish the killing. The intent or intention is manifested by the circumstances connected with the offense, and the sound mind and discretion of the accused. All persons are of sound mind who are neither idiots, nor lunatics, nor affected with insanity. A person is presumed to intend to do that which he voluntarily and willfully does in fact do, and must also be presumed to intend all of the natural, probable, and usual consequences of his own acts. Therefore, if you are satisfied to a moral certainty, and beyond a reasonable doubt, that the defendant did assail, on the date mentioned, one George King, violently with a dangerous weapon, likely to kill, and which did in fact destroy the life of said George King, the natural presumption is that such assailant intended death or great bodily harm, and in the absence of evidence to the contrary this presumption must prevail.’ It is contended that this instruction does violence to the law, in that the law is that whenever a specific intent is an element of an offense no presumption of law can arise, and that the specific intent is a fact to be shown like any other fact in the case. People v. Landman, 103 Cal. [577], 580, 37 P. 518; People v. Johnson, 106 Cal. [289], 295, 39 P. 622; People v. Flannelly, 128 Cal. [83] 89, 60 P. 670. The rule of law is as appellant declares in all crimes saving that of murder."
In People v. Brown, 27 Cal.App.2d 612, 613, 81 P.2d 463, 464, the court says:
"On this appeal defendant contends that the court erred in giving certain instructions requested by the prosecution, and that by reason thereof the jury was misled to the prejudice of the defendant. Under the charge of assault with a deadly weapon with intent to commit murder, it is incumbent upon the prosecution to prove a specific intent to commit murder, and being an essential ingredient of the crime, the intent cannot be inferred or presumed from the commission of an unlawful act. People v. Landman, 103 Cal. 577, 37 P. 518; People v. Johnson, 106 Cal. 289, 39 P. 622; People v. Maciel, 71 Cal.App. 213, 234 P. 877.
"On examining the instructions given it is apparent the jury were charged in effect while proof of intent to commit murder must be proved, proof of the commission of the unlawful act of discharging the rifle and shooting the complaining witness was presumptive proof that the defendant intended to commit murder; also that if it were established that the defendant shot Estep, that constituted proof that he intended to kill him.
"Among the instructions given was the following:
" ‘I instruct you that if you are convinced to a moral certainty and beyond a reasonable doubt that the defendant Elmer Brown intended to do an unlawful act and did wilfully do an unlawful act he is thereby presumed to have intended all the natural, probable and usual consequences of this act, unless there is evidence to controvert this presumption.’
"Also in the following instruction the court, in effect, told the jury the burden was on the defendant to prove lack of intent:
" ‘If you are convinced to a moral certainty and beyond a reasonable doubt that the defendant intended to do an unlawful act and did wilfully do it, he is presumed to have intended all the natural and probable consequences of the act unless he controverts this presumption by evidence on his own part.’
"In this instruction the jury were not only advised that a presumption of law that he intended to kill arose from the shooting, but the jury were also advised that he must controvert this presumption. This is incorrect. There is no burden placed upon the defendant to prove lack of intent. The burden is upon the prosecution to prove the intent.
"In the case of People v. Maciel, supra, the defendant was charged with assault with a deadly weapon with intent to commit murder. The court there gave the following instruction ***:
" ‘In every crime or public offense there must exist a union or joint operation of act and intent, or criminal negligence, but when the act committed by the accused is of itself an unlawful act, the law, in the first instance, presumes the criminal intent, and the burden of proof falls upon the defendant to show the absence of criminal intent.’
"It was contended upon the part of the defendant therein that this instruction violated the rule that whenever a specific intent was an essential ingredient no presumption of law arose as to the existence of such intent, for it was a fact to be proved like any other fact in the case. The court considering this, said while the first portion of the instruction was in the language of section 20 of the Penal Code, the latter portion was erroneous and prejudicial. The court stated that the jury were charged that when the act committed by the accused was unlawful, the law raised the disputable presumption that the act was intended, and that the person doing it, if done voluntarily, also intended the ordinary consequences of the act. This the court held was an instruction stating a rule of evidence, citing People v. Abbott, 2 Cal.Unrep. 383, 387, 4 P. 769. The court also held that had the court worded its instruction as contemplated in section 1963 of the Code of Civil Procedure it would have been proper, but the vice in the instruction as given lay in the fact that it went beyond the rule that an accused who had done an unlawful act was presumed to intend to have done that act, and asserted that when the act committed by the accused was unlawful, the law presumed the criminal intent without telling the jury what the criminal intent was which the law presumed. The court held that the words ‘criminal intent’ were broad enough to include any and every unlawful intent which was embraced within the crime charged against the appellant. ‘It is only when the intent is not made an affirmative element of the crime that the law presumes that the act, if knowingly done, was done with a criminal intent. *** When a specific intent is an element of the offense it presents a question of fact which must be proved like any other fact in the case. *** "Where one is charged with assault with intent to commit murder, and it is proved that he fired a loaded pistol at another, there is no presumption of law that he intended to murder the person thus fired at." ’ People v. Maciel, supra.
"The court there held also that the vice of the foregoing instruction was not cured by another instruction to the effect that the defendant could not be convicted of the crime of assault with a deadly weapon with an intent to commit murder unless the jury believed beyond a reasonable doubt that the assault was committed with intent to commit murder."
In People v. Maciel, 71 Cal.App. 213, 234 P. 877, a case involving a conviction of the crime of assault with a deadly weapon with intent to commit murder, 71 Cal.App. at page 217, 234 P. at page 879, the court says:
"We come now to a more serious objection, and one which we are constrained to hold necessitates a reversal of the judgment. The court gave this instruction: ‘In every crime or public offense there must exist a union or joint operation of act and intent, or criminal negligence, but when the act committed by the accused is of itself an unlawful act, the law, in the first instance, presumes the criminal intent, and the burden of proof falls upon the defendant to show the absence of criminal intent.’ *** It is contended, and we think rightly so, that this instruction violates the rule that, whenever a specific intent is an essential ingredient of the offense, no presumption of law can arise as to the existence of such intent, for it is a fact to be proved like any other fact in the case.
"The first part of the instruction is based on and is in the language of section 20 of the Penal Code. But the last part is erroneous, and we think it was also prejudicial."
In the present case the instructions given by the trial court and hereinbefore set forth were substantially the same as the instructions given in the cases above mentioned, which were held to be erroneous. There can be no question that the instructions in the present case were made applicable to the count upon which defendant has been convicted, in view of the fact that the trial court, among others, read to the jury this instruction:
"All of the instructions as given to you by the court are to be considered as applying to each of the counts set forth in the indictment unless I shall limit your consideration of any particular instruction to any particular count, in which event it will be your duty to consider such instruction only as respects such particular count referred to."
The erroneous instruction was not limited by the court to the counts other than those charging attempted murder. Furthermore, the court refused to give an instruction requested by appellant, in which it was unequivocally set forth that the fact that defendant fired the loaded gun at Alderman’s "creates no presumption of law that defendant intended to murder the person fired at".
Since there was no lesser offense necessarily included in the greater offense of which defendant was found guilty, the questioned instructions cannot by this court be held applicable to a lesser and included offense.
Nor can the erroneous instructions be held to have been not prejudicial to the rights of the defendant under the provisions of article VI, section 4½ of the Constitution of the state of California. Discussing an analogous point, this court in People v. Maciel, supra, 71 Cal.App., at page 219, 234 P. at page 880, says:
"The erroneous instruction is beyond the reach of the saving grace of section 4½ of article 6 of the Constitution. It would have been otherwise had appellant been convicted of the lesser offense of assault with a deadly weapon. But he was convicted of the greater offense. To constitute the offense of which he was found guilty, the circumstances must be such as to authorize the jury, not the court, to infer the existence of the specific intent to murder."
Again in People v. Brown, supra, in referring to the giving of erroneous instructions similar to those involved in the instant case, the court said, 27 Cal.App.2d at page 616, 81 P.2d at page 465:
"It was also held in the Maciel Case, supra, that such an erroneous instruction was beyond the reach of the saving clause of section 4½ of article 6 of the Constitution."
For the foregoing reasons the judgment and order appealed from are and each is reversed and a new trial is ordered.
We concur: MOORE, P.J.; WOOD, J.