People v. La Vers

KNIGHT, J. The appellant Jack La Vers was indicted jointly with one Joe Teresi for the murder of Herbert Mc-Auley, a deputy sheriff, and upon trial he was found guilty of murder of the second degree. He appealed, and the judgment of conviction was affirmed. (People v. La Vers, 130 Cal. App. 708 [20 Pac. (2d) 967).) Approximately four and a half years later he presented a motion to the superior court wherein he was convicted, to annul and set aside the judgment of conviction, upon the ground that at most the evidence in the case proved him to be guilty only of conspiracy. He contended, therefore, that since he was neither charged with nor found guilty of conspiracy, his conviction of murder is void. After á hearing the motion was denied, whereupon he took this appeal.

The evidence upon which appellant was found guilty of murder is fully set forth in the decision rendered on the appeal from the judgment. Summarized, the facts appearing therefrom are these: On the night of the murder appellant, Teresi and a man named Kelly, in pursuance of a plan theretofore entered into between them, trailed a Packard automobile carrying illicit alcohol out of Oakland, and when it stopped temporarily at a gasoline station in San Leandro appellant and Teresi alighted from their car, pointed a pistol at the driver of the Packard, and threatened to shoot him if [338]he resisted. Thereupon they jumped in the Packard and fled toward San Jose, taking the driver with them, and declaring as they speeded along the highway that they would kill anyone who attempted to intercept them. Soon after they entered Santa Clara County McAuley and another deputy sheriff named Saporito took up the pursuit, and appellant and Teresi were aware of the fact that the occupants of the pursuing car were officers. The stolen car was finally overtaken and stopped in San Jose. McAuley approached it from one side and Saporito from the other, and the occupants Avere ordered to get out. Appellant alighted from one side and Teresi from the other, but as they did so they opened fire on the officers. Teresi shot McAuley, killing him instantly, and appellant shot Saporito in the stomach, but did not kill him. Although critically wounded Saporito grappled with appellant, and during the ensuing struggle Saporito was shot in the leg twice. Finally Saporito succeeded in felling appellant with a blow on the head and wrested appellant’s pistol from him. Teresi then called to appellant to flee, and they jumped back into the automobile and drove away. Later they were captured and charged with the murder of McAuley.