People v. La Vers

KNIGHT, J.

The appellant Jack La Yers and a companion named Joe Teresi were indicted jointly by the grand jury of Santa Clara County for the murder of Herbert McAuley, a deputy sheriff, and upon trial were found guilty of murder in the second degree. From the judgment of conviction La Yers has appealed.

The circumstances leading up to the homicide as shown by the evidence adduced on the part of the prosecution were as follows: On the night of November 11, 1931, one Fred Hopkins was transporting 200 gallons of alcohol from Oakland to Los Angeles in a Packard coupe. He was accompanied by a man named Edwards. They stopped temporarily at a gasoline service station in San Leandro, Alameda County, and Edwards went to the lavatory. During his absence La Yers, Teresi and a man named Kelly drove up in a Chevrolet sedan. They had followed the Packard from Oakland. Teresi alighted, went over to the Packard, where Hopkins was seated at the wheel, and pointing a pistol at him said with an oath: “Get out of there ... or I’ll plug you.” Hopkins complied, and was then ordered by Teresi to enter the Chevrolet; whereupon La Yers got in the Packard and drove away swiftly toward San Jose. Teresi then jumped in the Chevrolet with Hopkins and Kelly, and followed. After proceeding down the highway some distance both automobiles were brought to a stop, and after some conversation between La Yers, Teresi and Kelly, Hopkins was ordered to get back in the Packard. Teresi got in also. Kelly then drove away alone with the Chevrolet, and La Yers and Teresi proceeded on toward San Jose in the Packard with Hopkins sitting between them. Hopkins asked where they were going and La Yers replied: “We’re going south.” Hopkins said: “No, you can’t go south, you

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will be stopped”; and Teresi replied: “We won’t be stopped; I’ll bump off the first guy that stops us.” Hopkins then said: “Will you bump off someone for a four or five hundred dollar gain?” and Teresi replied: “Tes, it is all in the racket.” The sheriff's office at San Jose was notified of the hold-up and McAuley and another deputy sheriff named Saporito were directed to proceed up the highway to Milpitas, in Santa Clara County, and intercept the Packard; but on account of the excessive rate of speed it was traveling they were unable to stop it at that point, so they took up the chase toward San Jose. As the Packard passed through Milpitas La Vers observed one of the officers as he stood under a light in front of the sheriff’s automobile, and he said to Teresi: “There is a Dick.” The officers overtook the Packard in San Jose, and crowding it toward the curb called out “Sheriff’s Office, pull over.” Teresi was driving the Packard and La Vers said to him: “It is the cops, turn here.” As soon as the Packard stopped the officers alighted, and, approaching the Parkard on each side, ordered the occupants to get out. Teresi alighted from one side and La Vers from the other side, followed by Hopkins. As soon as Teresi and La Vers alighted they opened fire on the officers. Teresi, according to the evidence adduced by the prosecution, shot McAuley twice, killing him almost instantly. One shot pierced his heart and the other passed through his body and lodged in his spine. La Vers, using an automatic pistol, fired at Saporito, the bullet striking him in the stomach, and although critically wounded he grappled with La Vers for the possession of La Vers’ pistol. During the struggle the pistol was discharged several times, two more bullets striking Saporito in the leg. In the meantime Saporito’s pistol fell to the ground, and picking it up he struck La Vers over the head with it, after which he was able to wrench La Vers’ pistol from him. About this time Teresi called out to La Vers to “come on”, and they jumped into the Packard and fled. During the fusillade Hopkins was shot in the leg and La Vers was wounded also.