People v. Sears

465 P2d 847 (1970)

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Nature of the Case

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Facts

D married Clara in 1960. The spouses agreed that Clara and her three children by a former marriage would continue living in a cottage which she and the children had occupied before the marriage, while D would sleep in a nearby garage until he completed an addition to the cottage. D never completed the addition, and Clara refused to let d sleep in the cottage even after one of her daughters married and moved out. In April 1963 defendant moved to a hotel. On May 12, D visited his wife. D threatened that he would kill her and the children if she got a divorce. On May 16, D completed his work for the day and went to a neighborhood tavern where he drank beer with friends until about 7:30 p.m. D went to dinner with one Robert Kjaerbye. At 10 p.m. the two went to a tavern where D was a regular customer. After each man had drunk a beer, they drove approximately one block to the cottage. While Kjaerbye stayed in the living room, D went into the bedroom. Elizabeth was asleep and Clara was reading. Defendant told Clara that he wanted to talk with her. D grabbed her robe and said, 'If you won't want to come back to me. . . .' D unbuttoned his shirt and drew out an iron bar that he had stuck in his pants before entering the cottage. He struck Clara about the head until she lost consciousness. Elizabeth awakened and cried out for D to leave her mother alone. D turned on her with the iron bar. Clara regained consciousness and unsuccessfully tried to place herself between D and Elizabeth, but she again became unconscious. Clara's mother (who lived next door), Frances Montijo, with Clara's brother Patrick Montijo, heard the noise from her daughter's home and decided to investigate. Kjaerbye was leaving. He told her that he knew nothing of what was happening inside. Frances entered to find D on top of the screaming child. D attacked Frances with a knife he had taken from Clara's kitchen. After cutting her face, D threw Frances into a chair, rolled the iron bar against her throat and chest, and stabbed her with a barbecue fork, also taken from the kitchen. Patrick's wife, Dolores, decided to investigate. As she arrived the injured Frances was making her escape. Dolores took Frances to a neighbor's house and went back to her own house for Patrick. Patrick went to the cottage. D was standing over Clara with the barbecue fork in his raised hand. D lunged at Patrick with the fork. A fight ensued, and D stabbed Patrick in the neck and chest. D then ran to his car and drove away. Elizabeth died. Clara suffered multiple lacerations as well as a fractured jaw and a fractured arm. Frances received several wounds on her face, neck, and hands. D testified that he returned to the cottage to discuss their marital situation and effect a reconciliation. D wanted to ask her to accompany him that weekend to inspect some rental units he hoped to move to. D saw an iron bar, picked it up, and stuck it in his pants. D intended only that his wife see the bar, hoping that she would then sit down and talk with him; and that he did not have any intent to use it on Clara or to scare her. The prosecutor claimed that D committed a burglary in entering the cottage. He emphasized repeatedly that burglary included an entry with an intent to commit any felony not merely theft, and he repeatedly asserted that D entered with intent to assault. The judge instructed the jury on first-degree murder from felony murder with burglary being the underlying crime. The court instructed: 'Every person who enters any structure such as is shown by the evidence in this case, with intent to commit theft or any felony is guilty of burglary. The essence of a burglary is entering a place such as I have mentioned with such specific intent; and the crime is complete as soon as the entry is made, regardless of whether the intent thereafter is carried out.' The jury was instructed on attempted murder and assault with a deadly weapon. The jury asked the judge the following question. 'Does assault on wife constitute a felony regardless of intent upon entering and if so, does felony murder doctrine dictating first-degree murder apply?' The court also stated: 'In answer to the specific inquiry, the court would advise that the specific intent to commit the assault must exist at the time of entry, otherwise the felony-murder rule does not apply.' D was found guilty and eventually, this appeal resulted.