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People v. Wiley10/4/1976
returned to the house on December 11th, Andrew Henry had asked her if she wanted Henry to get her money back. She replied "yes," after which Henry commenced hitting William on the head with his fists. Then, in response to requests from Henry, she handed him first a baseball bat, and next a hammer, which Henry used in turn to strike William on all parts of his body. Appellant knew that Henry was "beating him bad," but not that "he was beating him that bad, that hard." Appellant denied hitting William with the hammer herself, but admitted that she had asked Henry for the bat, stating that she was going to hit William "on the hand, because that is the hand which spent my money, which is his right hand." She testified that she had hit him on the right hand and on the knee with the bat. She also testified that she had not asked Henry to hit William, but gave him the bat "because he asked for it" and she did not "really think he was hurting him that bad." She claimed that when she hit William she did not intend to hurt him.
Henry, who was also charged with murder, and who was subsequently tried and convicted, exercised his right to remain silent. A prior out of court statement by Henry was admitted, however, in which Henry asserted that appellant rather than he had used the bat first; that he had not used the hammer; and that William had looked worse the next day than he had when Henry left on the night of December 10th.
The People proceeded on the basis that appellant was guilty as an aider and abettor of first degree murder on either of two theories -- (1) that the killing of William was wilful, deliberate, and premeditated; and/or (2) that the killing was perpetrated by torture in that the death was caused by acts involving a high degree of probability of death undertaken with the intent to inflict cruel pain and suffering for the purpose of revenge or extortion.
I
The Elements of Murder by Torture
The trial court instructed the jury in the language of CALJIC No. 8.24 that: "Murder which is perpetrated by torture is murder of the first
degree. [ para. ] The essential elements of such a murder are (1) the act or acts which caused the death must involve a high degree of probability of death, and (2) the defendant must commit such act or acts with the intent to cause cruel pain and suffering for the purpose of revenge, extortion, persuasion or for any other sadistic purpose. [ para. ] The crime of murder by torture does not necessarily require any proof that the defendant intended to kill the deceased, nor does it necessarily require any proof that the deceased suffered pain."
Appellant argues both that the evidence was insufficient to warrant an instruction on murder by torture because there was no evidence that she intended that William suffer, and that the instruction quoted misstates the law in reciting that it is unnecessary that the victim of torture-murder actually have felt pain. She correctly notes that murder by torture cannot be inferred solely from the condition of the victim's body (People v. Beyea (1974) 38 Cal. App. 3d 176, 201 [113 Cal. Rptr. 254]), or from the mode of assault or injury suffered (People v. Tubby (1949) 34 Cal. 2d 72, 77 [207 P.2d 51]), but other evidence of intent to cause suffering is also required. (People v. Anderson (1965) 63 Cal. 2d 351, 359-360 [46 Cal. Rptr. 763, 406 P.2d 43]; People v. Caldwell (1955) 43 Cal. 2d 864, 868-869 [279 P.2d 539].) Here the evidence was clearly sufficient to permit the trier of
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