THE PEOPLE, Respondent, v. THOMAS E. TUBBY, Appellant, 34 Cal. 2d 72

SHENK, J. The defendant was charged by the grand jury of Glenn County with the murder of his stepfather Robert A. Fleenor. He pleaded not guilty and not guilty by reason of insanity. On the first plea the jury returned a verdict of guilty without recommendation. On the trial of the insanity plea the jury found that the defendant was sane at the time the offense was committed. A motion for a new trial and a motion to modify the judgment by reducing the degree of the crime to second degree murder were denied. The appeals are from the judgment imposing the death penalty and from the orders denying the motions.

On the appeal the defendant admits that he unlawfully killed the deceased. His contentions are that the evidence does not support a conviction of murder in the first degree; that the district attorney was guilty of prejudicial misconduct in his argument to the jury and in the cross-examination of a witness, and that the court committed prejudicial error in refusing to give a requested instruction on motive. The facts are undisputed. The defendant is a 29-year-old uneducated agricultural worker of

part Cherokee-Choctaw extraction. He is 6 feet tall and weighs 175 pounds. In the past few years he resided intermittently with his mother, Mrs. Louelle Fleenor, and his stepfather, the deceased, in the Fleenor home 1 mile east of the city of Orland, Glenn County. At the time of his death, Fleenor was a feeble man 82 years of age and weighing less than 100 pounds. During the early fall of 1948, the defendant was employed near Orland as a ranch hand and almond knocker. On the morning of September 13, 1948, he was taken to work by his . mother.

He and three- coworkers, a couple named Martin and a man named Smith, began working at about 8 o’clock, then stopped a half-hour later to drink a quart of sherry which the Martins had brought. About 10 o’clock Smith drove to Orland where he purchased a gallon of sherry of which a half-gallon was consumed. The defendant drank about two quarts in all. At about 2:30, the Martins and Smith, believing that the defendant was getting drunk and fearing that he might fall from a tree on which he was working, decided to take him home in Smith’s car.

Each testified that the defendant was drunk but that he walked straight and talked without thickness of tongue. On arriving at the Fleenor home at about 3:30 the defendant found his mother was not there. He went into the yard where he saw the deceased. Two men working on a house across the street observed the defendant strike the deceased with his fist. They shouted at him but he claimed not to have heard them. He was then seen dragging the deceased into the house.

One of the workers asked a neighbor to call the police and then, standing in front of the Fleenor home, heard thumping noises from within which continued for a period of several minutes. In a signed statement given on September 15th, the defendant stated that he walked toward the deceased in the yard and when he came close “just hauled off and let fly with my fist”; that there had been no argument; that not a word was spoken prior to the attack; that he wasn’t “mad at” the deceased at the time, and that the only argument he had had with Mr.

Fleenor occurred two or three months before over the trimming of a hedge; that after striking the deceased once, he “began thinking of what I had done and I thought I better take him into the house ’ ’; that he then dragged the deceased into the house; that he remembered “something about him [the deceased] scuffling around the stove”; that he “may have hit him two or three times” but that he did not hit him with anything but his fist; that Mr.

Fleenor ran in circles in a futile attempt to escape but did not speak; that the deceased “came over by the side of me and looked at me and when he did I hit him again and then I see he was laying on the floor and blood was coming out of his nose . . .”; that with the final blow, he “felt something snap and I knew I had done something, and I come to myself, but before that I was in a drunken stupor and didn’t seem to know what I was doing”; that he then pushed the deceased with his foot in an attempt to make him get up; that he guessed he wanted to revive the deceased so dragged him through the house wondering what to do; that he did not remember seating the deceased in a rocking chair where he was found when the officers arrived.

The defendant stated he was so drunk he did not know what he was doing. At the trial on the first plea the defendant contradicted his voluntary statement of September 15th in some particulars, but on the trial of the insanity plea he retracted his denials and gave a version of the killing which accorded substantially with his prior statement. When the police arrived about 15 minutes after the first assault the defendant was seen walking rapidly from the house. He stopped when ordered to do so and came back to meet the officers.

He then offered to fight one of them and called him: a profane name,, but was subdued when the officer struck him. An examination of the defendant’s right hand disclosed it to.be swollen and moderately contused. The arresting officer testified that the defendant showed no sign of intoxication. The deceased was found to be in a semicomatose condition when a physician .arrived. He was removed to a hospital and died the same day. Cause' of death was stated to be basal skull fractures and intercranial hemorrhage. Generally the determination of the' degree of the crime is left to the discretion of the jury. (People v.

Eggers, 30 Cal.2d 676, 685 [185 P.2d 1]; People v. Wells, 10 Cal.2d 610 [76 P.2d 493]; People v. Mahatch, 148 Cal. 200, 203 [82 P. 779].) But the jury’s discretion is not absolute. Since the amendment of

section 1181 of the Penal Code in 1927 trial courts and reviewing courts are authorized to modify the judgment and fix a lesser degree of the crime in those instances where on an appraisal of all the evidence there is found to be lacking any substantial evidence of the elements required to constitute the degree of the crime as fixed by the jury. (People v. Kelley, 208 Cal. 387 [281 P. 609]; People v. Holt, 25 Cal.2d 59, 90 [153 P.2d 21]; People v.

Bender, 27 Cal.2d 164, 186 [163 P.2d 8].) In support of the verdict the attorney general asserts that the infliction of multiple injuries as a result of continued beating of an aged victim, frail and unarmed, indicates an intention on the part of the defendant to inflict pain and suffering which may reasonably be said to constitute torture within the meaning of

section 189 of the Penal Code, and therefore to result in murder of the first degree by statutory declaration. It is argued that the defendant’s primary intention must have been to inflict pain for purposes of punishment or deep-seated revenge. Torture has been defined as the “Act or process of inflicting severe pain, esp. as a punishment in order to extort confession, or in revenge.” (Webster’s New Int. Dict. (2d ed.).) The dictionary definition was appropriately enlarged upon by this court in its original opinion in People v.

Heslen, 163 P.2d 21, 27 in the following words: “Implicit in that definition is the requirement of an intent to cause pain and suffering in addition to death. That is, the killer is not satisfied with killing alone. He wishes to punish, execute vengeance on, or extort something from his victim, and in the course, or as the result of inflicting pain and suffering, the victim dies'.

That intent may be manifested by the nature of the acts and circumstances surrounding the homicide.” (See disposition of that case on rehearing, 27 Cal.2d 520 [165 P.2d 250].) The Colorado Supreme Court has declared in similar terms that as an essential of torture physical pain must be inflicted as a means of persuasion, punishment or in revenge. (Townsend v.

People, 107 Colo. 258, 265 [111 P.2d 236].) In holding that a murder by strangulation was not necessarily murder by torture this court has stated: “The killer who, heedless of the suffering of his victim, in hot anger and with the specific intent of killing, inflicts the severe pain which may be presumed to attend strangulation, has not in contemplation of law the same intent as one who strangles with the intention that the victim shall suffer.” (People v.

Bender, 27 Cal.2d 164, 177 [163 P.2d 8].) In determining whether the murder was perpetrated by means of torture the solution must rest upon whether the assailant’s intent was to cause cruel suffering on the part of the object of the attack, either for the purpose of revenge, extortion, persuasion, or to satisfy some other untoward propensity. The test cannot be whether the victim merely suffered severe pain since presumably in most murders severe pain precedes death. In this case the record is devoid of any explanation of why the defendant .might have desired his stepfather to suffer.

The only testimony concerning the relationship between the two men was that the deceased and the defendant were on amicable terms prior to the attack. Mrs.

Fleenor, the defendant’s mother, stated that the defendant “is all right when he isn’t drinking ...” She testified further that the defendant “never used intoxicating liquor until 1938 when he got drunk that time and got into that trouble.” (Probably referring to a previous conviction of manslaughter.) When asked how the defendant acts when drunk, she replied: “Acts like any other crazy drunk.” An indication that the defendant was in a “fighting mood,” inclined to fight almost anyone and not primarily interested in causing the ultimate victim to suffer, is the fact that he offered to fight the arresting officer and had to be subdued by force.

It is too apparent to admit of serious doubt that the unprovoked assault was

an act of animal fury produced when inhibitions were removed by alcohol. The record dispels any hypothesis that the primary purpose of the attack was to cause the deceased to suffer. When death results under the circumstances here shown the homicide cannot be said to constitute murder by torture in the popular, dictionary, or legal sense. The evidence is therefore insufficient as a matter of law to support the verdict on the theory that the homicide was murder by torture.

The second basis on which the attorney general rests his contention that this was first degree murder is that the killing was willful, deliberate and premeditated. Again the evidence is inadequate to support the contention. The facts on which the attorney general relies as supporting his claim that Mr. Fleenor was killed by means of torture are also referred to as disclosing deliberation. It is argued that deliberation and premeditation are manifest in the circumstance that the defendant dragged Mr.

Fleenor into the house after striking him, away from the view of and interference by neighbors, and in the brutality and duration of the beating. In determining whether the killing was accompanied by a deliberate and premeditated intention to take life such circumstances as the previous relations between defendant and the victim, the actions of the defendant before as well as at the time of the killing, and the means by which the homicide is accomplished, are important. The only evidence in the record as to the relationship between the defendant and his stepfather is the testimony of Mrs.

Fleenor and the statement of the defendant himself. When asked whether Mr. Fleenor and the defendant “got along” Mrs. Fleenor answered : “Mr. Fleenor never said anything about him [the defendant] or to him except in a friendly way. ’ ’ The defendant stated he wasn’t “mad at” the deceased. At no time while in the company of the Martins and Smith in the hours preceding the crime did the defendant' suggest that he contemplated attacking the deceased or even mention him.

Even if we disbelieve entirely, as the jury might, the defendant’s assertion that he was so drunk that he did not know what he was doing, it is clear that his drinking affords the sole explanation for his atrocious conduct. It is perhaps a reasonable inference that the defendant dragged the deceased inside the house to continue his assault unmolested by neighbors, but that in itself would not warrant the further inference that with a preexisting intent he set about to kill his stepfather.

The cumulative effect of all the circumstances seems to negative any possibility that the defendant on reflection formed a design to produce death before or at any stage of the incident. Contentions of the defendant that he is entitled to a new trial because of alleged misconduct of the district attorney at the trial are without substance.

In the course of his closing argument to the jury the district attorney stated of the defendant: “He went blood crazy once he made up his mind to commit the act, he completed it and then he used his fist.” Counsel for the defendant states that the prosecution was thus enabled to argue before the same jury which tried the issues of guilt and insanity, that “the defendant was sane for some purposes but insane for others,” to the defendant’s prejudice. The phrase “blood crazy” is a colloquialism which perhaps described the defendant’s condition.

It would be absurd to say that its use so prejudiced the defendant’s case as to require a new trial. Por impeachment purposes the district attorney asked the defendant on cross-examination whether he had been previously convicted of a felony, the nature of the felony, and then, over the objection of the defendant’s counsel, where he was convicted. It is impossible to believe that the defendant was prejudiced in any way by the single additional question as to where the defendant was convicted. Had the prosecution chosen, it could have proved the felony conviction by the record of the judgment (Code Civ.

Proc., § 2051) which would have disclosed the place of conviction. As to the charge that the trial court erred in refusing to give the defendant’s offered instruction on motive it appears from the record that the subject of motive was fully covered by an instruction which was given. The evidence is insufficient to support the verdict of conviction of murder in the first degree, but it is unquestionably sufficient to support a conviction of second degree murder, and the trial court should have granted the motion to modify the judgment.

However it is unnecessary to reverse the order denying that motion for the reason that this court has the power on this appeal, under

section 1181 of the Penal Code, to accomplish the proper result by modifying the judgment and affirming it as modified. Accordingly: The order denying the motion for a new trial is affirmed. The judgment is modified by reducing the degree of the crime to murder of the second degree and as so modified the judgment is affirmed. The cause is remanded to the trial court with directions to sentence the defendant to imprisonment for the time prescribed by law for murder of the second degree. Gibson, C. J., Carter, J., Schauer, J., and Traynor, J., concurred.