Grier v. T.R.S.

Opinion

COUGHLIN, J. The minor was declared a ward of the juvenile court because he killed a human being in the commission of a lawful act which might produce death, without due caution and circumspection, thereby violating Penal Code section 192, subdivision 2; was placed in the custody of his parents under terms of probation; and appeals. Previously the court denied his motions for a preliminary hearing or, in the alternative, for an order that the case against him first be presented to the grand jury, and for trial by jury. After filing his notice of appeal he moved the court for an order directing the preparation of the transcript on appeal without charge to him, and this motion was denied. On appeal he seeks reversal of the order declaring him a ward upon the grounds: (1) The evidence is insufficient to support the finding he violated Penal Code section 192, subdivision 2; and (2) denial of the aforesaid motions was error.

That version of . the evidence most favorable to the order supports the conclusion the minor, an 11-year-old boy in the fifth grade, of average intelligence, shot and killed another boy; his parents had instructed him to stay out of the bedroom of a half-brother in which there was a shotgun and a .45 caliber automatic pistol, to leave these guns alone, not to touch them, and not to play with them; his father told him “a gun is dangerous at all times” and even if “you know they’re unloaded, treat them as though they are loaded because they are dangerous”; in spite of these warnings he had played with the guns; on the day of the fatal shooting he came out of the house into the front yard with the shotgun; his brother, S., told him to take the gun back, and he complied; he reappeared in the yard with the .45 caliber pistol; on the way out of the house he pulled back the hammer on the gun which cocked the pistol; when on the outside the victim asked him if the gun was real; thereupon he replied it was a real gun, pointed the gun in the direction of the victim, who was about 4 feet away, and pulled the trigger, firing the gun which was loaded; the bullet struck the victim in the face and killed him; he, the minor, testified he knew if the gun had bullets in it someone could be seriously hurt or killed with a bullet from the gun; he believed the gun was unloaded, but he knew he should handle it “so that if [181]it did go off, it wouldn’t hurt anybody”; he took no precautions to determine whether the gun was loaded.

The evidence adequately supports the conclusion the minor, judged by the standards of a boy of his age, mental capacity, experience and intelligence, was criminally negligent. (In re Dennis M.,70 Cal.2d 444, 460 [75 Cal.Rptr. 1, 450 P.2d 296]; In re Hartman, 93 Cal.App.2d 801, 806 [210 P.2d 53]; People v. Searle, 33 Cal.App. 228, 231-232 [164 P. 819]; gen. see People v. Penny, 44 Cal.2d 861, 879 [285 P.2d 926]; People v. Villalobos, 208 Cal.App.2d 321, 326-328 [25 Cal.Rptr. 111].) There is no merit to the contention the evidence, by “clear proof” as required by Penal Code, section 26, does not establish the minor knew the wrongfulness of his conduct.