People v. Kerr

SCHAUER, J.

This is an automatic appeal from a judgment which imposes the death penalty. (Pen. Code, § 1239b.) Defendant pleaded guilty to a charge of murder and the trial

[13]

judge, after hearing evidence, found that the crime was of the first degree and sentenced defendant to death. The judge filed a memorandum opinion which expresses his view that the murder was of the first degree both because it was committed in the perpetration of robbery and also because it was perpetrated by torture. We have concluded that the court erred in construing the facts attending the murder as constituting torture within the meaning of the law (Pen. Code, § 189) but that the finding that the murder occurred in the perpetration of robbery and, hence, is of the first degree, must be affirmed.

The evidence, including the testimony of defendant, may be fairly summarized as follows:

On July 1, 1950, defendant decided to ask his friend Troy Buckles for a loan of $200. Defendant wished to use this money in part to pay bills and in part to finance a three-day vacation trip with his fiancee. He went to the grocery store operated by Mr. and Mrs. Buckles, but did not then ask for the loan because other persons were present. On the morning of Sunday, July 2, defendant returned to the store. De- ' fendant did not ask for the loan until all customers had left, Mrs. Buckles had gone on an errand, and Buckles had closed the store. It was then about noon. While Buckles was counting the cash and checks received, with defendant assisting him, defendant asked for the loan. Buckles refused because, he said, on previous occasions when, defendant had borrowed from him the loans had not been repaid promptly. There followed an argument which grew more heated when Buckles, according to defendant’s testimony, “said that all I was getting the money for was to spend it on my girl friend” and profanely and at some length expressed his opinion of defendant’s conduct and the character of defendant’s fiancée. Defendant seized a meat cleaver and struck Buckles on the head. Defendant took the cleaver and the box containing the cash and checks, put them under the seat of his car, drove to his fiancée’s home, and they proceeded on their holiday trip.

Deféndant contends that the evidence does not show murder in the perpetration of robbery. He relies upon his own testimony that when he struck the fatal blows he had no thought of money and was acting in anger because of Buckles’ insulting remarks about defendant’s fiancée and that the thought of taking the money occurred to him only after Buckles was fatally wounded. It is true that if defendant’s