People v. Keefer

Mc Kinstry, J. —Counsel for defendant asked the court to ■ charge the jury:—

“If you believe from the evidence that the defendant James Keefer was not present when the Chinaman Lee Yuen was killed by Chapman, and did not aid and abet in the killing, and that defendant, at the time or prior to the killing, had not conspired with Chapman to commit the act, and that he had not advised and encouraged Chapman therein, and that the killing was not done in pursuance of any conspiracy between this defendant' and Chapman to rob said Chinaman, and that this defendant only assisted in throwing the dead body of the Chinaman into the creek, then you are instructed that, under the indictment, you must find the defendant not guilty.’*

It is to be regretted that the foregoing instruction was not given to the jury. Of course, if defendant had done no act which made him responsible for the murder, the mere fact that he aided in concealing the dead body would render him liable only as accessory after the fact—an offense of which he could not be found guilty under an indictment for murder. However [233]incredible the testimony of defendant, he was undoubtedly entitled to an instruction based upon the hypothesis that his testimony was entirely true.

Assuming the testimony of defendant to be true, there was evidence tending to show that no robbery was committed or attempted. In robbery, as in larceny, it must appear that the goods were taken animo furandi; and there was evidence tending to prove that his property was not taken from deceased lucri causa, or with intent to deprive him of it permanently. So also there was evidence tending to prove that defendant was not personally present at the killing, and that the killing was not done in pursuance of any agreement or understanding to which defendant was a party, but that it was done by Chapman without the knowledge, assent, or connivance of the defendant.

The testimony of defendant was to the effect that he did not advise or encourage Chapman to follow and tie the deceased. But even if we could be supposed to be justified in deciding the fact, in holding that his conduct conclusively proved,—notwithstanding his testimony to the contrary—that he did encourage Chapman in his purpose to follow and tie the deceased, such encouragement would not, of itself, make him accessory to the killing. An accessory before the fact to a robbery (or any other of the felonies mentioned in section 198 of the Penal Code), although not present when the felony is perpetrated or attempted, is guilty of a murder committed in the perpetration or attempt to perpetrate the felony. (People v. Majors, April 1, 1884.) This is by reason of the statute, and because the law super-adds the intent to kill to the original felonious intent. (People v. Doyell, 48 Cal. 94.) One who has only advised or encouraged a misdemeanor, however, is not necessarily responsible for a murder committed by his co-conspirator, not in furtherance, but independent of the common design. (1 Whart. Crim. Law, § 229 and note.)