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People v. Wiley10/4/1976
uring the intervening century. Although torture-murder received passing mention in subsequent cases, until 1934 no case came before this court in which the possibility of murder by torture was in issue. In People v. Murphy (1934) 1 Cal. 2d 37 [32 P.2d 635], the defendant, who had "by the use of a belt, belt buckle and his fists . . . bruised and battered his victim's entire body and had broken her jaws," offered a diminished capacity defense based on intoxication. On appeal he argued that the evidence was insufficient to establish first degree murder since he was incapable of forming a wilful, deliberate, and premeditated intent to kill. We held the evidence sufficient, but also noted that the judgment could be affirmed as a torture-murder in which "the means used is held to be conclusive evidence of premeditation . . . ." (1 Cal. 2d at p. 41.) Consistent with Sanchez, the means used were equated with the element of premeditation otherwise required in first degree murder. There was no suggestion that any additional element such as pain was necessary in first degree murder by torture.
That the victim's awareness of pain is not an element of first degree murder by torture is also suggested by People v. Bender (1945) 27 Cal. 2d 164 [163 P.2d 8]. In Bender the victim had been strangled, which was a contributing cause of death, and had also been hit on the head or had fallen and hit her head causing the injury which was the immediate cause of death. In response to an argument by the People that the evidence compelled an inference of first degree murder by torture we
again pointed out that it is the intent to cause pain, not actual suffering of the victim, that the Legislature deemed sufficiently culpable to render the killing murder of the first degree. Rejecting the People's claim we 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 assumed to attend strangulation, has not in contemplation of the law the same intent as one who strangles with the intention that his victim shall suffer." (Id., at p. 177.)
People v. Tubby, supra, 34 Cal. 2d 72, principally relied on in support of their conflicting positions by appellant and respondent, did not change this long accepted interpretation of section 189. Appellant there argued that the evidence was insufficient to support a first degree murder verdict. The People argued that because the evidence of infliction of multiple injuries as a result of continued beating of the victim indicated an intent to inflict pain and suffering, the acts could constitute torture within the meaning of the section. We acknowledged the dictionary definition of torture as the "'Act or process of inflicting severe pain, esp. as a punishment in order to extort confession, or in revenge,'" and repeated a definition of torture that had appeared in our original opinion in a case reported on rehearing as People v. Heslen (1946) 27 Cal. 2d 520 [165 P.2d 250]. We noted that in Heslen we had "appropriately enlarged upon" the dictionary definition of torture when we had said: "'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.'" (<
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