Filed 12/10/14 P. v. Beltran CA4/1

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA

THE PEOPLE,                                                         D066357

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. FVA801476)

FIDEL BELTRAN,

         Defendant and Appellant.

         APPEAL from a judgment of the Superior Court of San Bernardino County,

Ronald M. Christianson, Judge. Affirmed.

         Ellen M. Matsumoto, under appointment by the Court of Appeal, for Defendant

and Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Kristine A. Gutierrez and Lynne

G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.

         In this case, which involves what defendant Fidel Beltran refers to as his "mercy

killing" of his friend and coworker, Baraquel Alonzo Cruz, the San Bernardino County
District Attorney filed an information in June 2009 charging Beltran with (1) murder

(count 1: Pen. Code,1 § 187, subd. (a)); (2) making a criminal threat (count 2: § 422;

alleged victim: Jose Jesus Hernandez); and (3) dissuading a witness (Jose Jesus

Hernandez) (count 3: § 136.1, subd. (c)(l)). As to count 1, the information alleged that,

in committing the murder, Beltran personally and intentionally discharged a firearm

causing great bodily injury and death within the meaning of section 12022.53,

subdivision (d) (hereafter section 12022.53(d)); he personally and intentionally

discharged a firearm within the meaning of section 12022.53, subdivision (c) (hereafter

section 12022.53(c)); and he personally used a firearm within the meaning of section

12022.53, subdivision (b) (hereafter section 12022.53(b)).

         At the close of the evidence phase of the trial, the court granted Beltran's section

1118.1 motion for acquittal as to count 2 (making a criminal threat) and dismissed that

count.

         The jury found Beltran guilty of second degree murder as a lesser included offense

of count 1 and found to be true all three of the firearm enhancements. The jury found

Beltran not guilty of dissuading a witness.

         The court thereafter sentenced Beltran to an aggregate prison term of 40 years to

life, consisting of an indeterminate term of 15 years to life for the second degree murder

conviction, plus a consecutive indeterminate term of 25 years to life for the section

12022.53(d) firearm enhancement.

1        All further statutory references are to the Penal Code.
                                                2
       Beltran raises two contentions on appeal. First, he contends his second degree

murder conviction must be reversed because the victim, Cruz, was Beltran's friend; Cruz

asked him to assist him in committing suicide by shooting him; and, thus, the court

prejudicially erred by denying his request for a jury instruction on the law of voluntary

manslaughter as a lesser included offense of murder based on the absence of malice.

       Second, Beltran contends that, if this court affirms his murder conviction, the

section 12022.53(d) firearm enhancement of 25 years to life must be stricken, and a

determinate term of 20 years imposed in its place under section 12022.53(c) because (1)

"the plain language of [section 12022.53(d)] indicates that it applies 'to any person other

than an accomplice,'" (2) Cruz was an accomplice because he "was an aider and abettor

as well as a coconspirator to the crime of his killing" in that "[he] asked [Beltran] to kill

him," and thus (3) the court erred in preventing the jury from determining whether Cruz

was an accomplice by modifying the jury instruction on section 12022.53(d) "by

eliminating the need for the jury to determine whether Cruz was 'any person other than an

accomplice.'"

       For reasons we shall explain, we affirm both Beltran's murder conviction and the

related section 12022.53(d) firearm enhancement. Accordingly, we affirm the judgment.

                                               3
                               FACTUAL BACKGROUND

       A. The People's Case

       On August 13, 2008,2 at around 7:30 p.m., officers from the San Bernardino

County Sheriff's Department were dispatched to a remote dirt road in an unincorporated

area of Fontana. There they found a man's body lying face up on the ground. The man

was wearing construction boots, blue jeans, and a long-sleeved T-shirt containing the

emblem, "MJW Concrete." The deceased was later identified as Baraquel Alonzo Cruz,

who was born in early 1954.

       The scene was processed for evidence and investigators found an expended nine-

millimeter cartridge casing five to six feet away from Cruz's body. Cruz's body was

transported to the coroner's office for an autopsy.

       Steven Trenkle, a forensic pathologist, performed the autopsy and determined that

a bullet entered Cruz's mouth, passed through the cervical spine, and exited through the

back of his neck. Dr. Trenkle determined that the cause of death was the gunshot wound

to the head and neck. He opined that a person sustaining such an injury would be dead

within a matter of minutes absent immediate medical intervention.     Sergeant David

Burgess and Detectives Jon Minard and Scott Landen went to MJW Concrete and spoke

to Jose Jesus Hernandez. Hernandez, Beltran, and Cruz worked together at MJW.

According to Hernandez, he, Beltran, Cruz, and two other workers were at a construction

job site in Yorba Linda on August 12. Beltran had driven the group to that site in the

2      All further dates are to calendar year 2008 unless otherwise specified.
                                              4
company truck and the job ended at 3:30 p.m. On the way back, after Beltran dropped

the other two workers off at their homes, Hernandez heard Cruz complaining to Beltran

about his family and his problems. When Beltran stopped at a gas station, Cruz said he

was having problems with his daughters. He told Beltran he would be very grateful if

Beltran killed him. When Cruz went inside the gas station, Beltran told Hernandez that

Cruz was "playing with fire" and that he (Beltran) "could do something." Hernandez,

who was in the truck with Beltran, told Beltran to pay no attention to Cruz because Cruz

was "crazy." After they left the gas station, Beltran dropped Hernandez off at his house

and then drove away with Cruz. Cruz answered the phone and Hernandez heard Beltran's

voice in the background.

       The next day, August 13, Hernandez was scheduled to work with Cruz and Beltran

at a job site in Temecula. Beltran was supposed to drive Cruz to the site, but Cruz did not

show up for work. When Hernandez asked Beltran about Cruz, Beltran told Hernandez

that after he took Hernandez home, Cruz drank some beer, he drove Cruz to his

girlfriend's house, Cruz agreed to go to the yard, but Cruz never arrived. Hernandez

called Cruz many times, but he did not answer.

       Hernandez testified that on August 19 Beltran admitted to him at work that he had

killed Cruz. Beltran told Hernandez that he did not feel bad about what happened; he did

not feel any regret.

       While the officers were at MJW, they also spoke to Beltran. Beltran agreed to

accompany Sergeant Burgess and Detective Minard to the sheriff's headquarters to be

interviewed. Detective Minard asked Beltran when he last saw Cruz. Beltran said that

                                            5
while he and Cruz were working, Cruz told him he wanted to kill himself. Cruz did not

explain why; he just said he was "fed up with life." When asked whether he killed Cruz,

Beltran replied, "No, I didn't kill him." Beltran stated he "wasn't there" and he "didn't do

it."

       Following further questioning, Detective Minard told Beltran he was under arrest

for killing Cruz and advised Beltran of his Miranda3 rights. Beltran stated that he

understood his rights and indicated he was willing to talk about what had happened to

Cruz. Beltran said that Cruz was his friend, and Cruz asked him to kill him because he

was fed up with life. Cruz told Beltran that he picked oranges when he was younger and

he worked better than everyone else, but when he got older everyone beat him at the job,

he earned less money, and he got depressed. Beltran said Cruz had told him that when he

turned 54 he was going to take his own life by swallowing poison. Beltran said he told

Cruz that whenever he decided he wanted to die, he would do that "favor" and kill him.

       Beltran also told Detective Minard that while he, Hernandez, and Cruz were at the

job site in Yorba Linda on August 12, Cruz asked him to shoot him. Beltran said that

Hernandez was present when Cruz asked him (Beltran) to kill him. On the way home

from work, Cruz again asked Beltran to kill him. Beltran also indicated that, once he was

alone with Cruz in the truck at a gas station, Cruz again asked him to kill him. Cruz told

him he was fed up with life and said he had a daughter who was a Jehovah's Witness and

3      Miranda v. Arizona (1966) 384 U.S. 436.
                                             6
had not spoken to him in a long time. He also said his wife only spoke to him because he

sent her money.

       During the interview, Beltran also stated that after he took Hernandez home, he

drove Cruz to the location where he killed him. Beltran's Colt nine-millimeter handgun

was on the seat and Cruz saw it. Beltran said he asked Cruz whether he was sure he

wanted to be killed, and Cruz said, "yes." According to Beltran, Cruz said he wanted the

gun to be "emptied all in his chest." Beltran stated that, when he and Cruz got out of the

truck, he asked Cruz again if he was sure this is what he wanted, and Cruz responded,

"Yes, . . . do it." Beltran then admitted that he killed Cruz by shooting him once in the

head. Beltran said he left the gun near Cruz's body and drove home. Beltran added that

he was "at peace" with killing Cruz because it was "a death that [Cruz] wanted," not one

that he [Beltran] wanted.

       B. The Defense

       Testifying for the defense, Sergeant Daniel Finneran indicated that he responded

to the scene of the killing during the evening on August 13. He stated that "it did not

appear to [him] as if the body had been there for an extended period of time."

       Vincent Sghiatti, a physician and general family medicine practitioner, testified he

was retained by the defense to ascertain the time of death. From his review of the

records, he opined that Cruz died the afternoon of August 13 between 2:00 and 6:00 p.m.

       Several individuals who knew Beltran and Cruz testified that Beltran was honest,

hard working, nonviolent and that he and Cruz had a good relationship.

                                             7
                                      DISCUSSION

                   I. CLAIM OF INSTRUCTIONAL ERROR (COUNT 1)

       Beltran first contends his second degree murder conviction must be reversed

because (1) Cruz, was Beltran's friend; (2) Cruz asked him to assist him in committing

suicide by shooting him, and, thus, (3) the court prejudicially erred by denying his

request for a jury instruction on the law of voluntary manslaughter as a lesser included

offense of murder based on the absence of malice. We reject this contention.

       A. Background

       As pertinent here, defense counsel submitted two proposed special instructions.

The first, proposed special instruction No. 1, provided:

          "A killing that would otherwise be murder is reduced to voluntary
          manslaughter if the defendant killed someone without malice.

          "You have heard evidence that the defendant killed the decedent at
          the decedent's request. You are the exclusive judges of whether or
          not the defendant killed the decedent, and if so, whether the
          defendant killed the decedent at the decedent's request.

          "If you find that the defendant killed the decedent at the decedent's
          request, you may find that the killing was committed without malice.

          "The People have the burden of proving beyond a reasonable doubt
          that the defendant killed the decedent and did so with malice. If the
          People have not met this burden, you must find the defendant not
          guilty of murder.

          "You should then deliberate whether the defendant is guilty of
          manslaughter." (Italics added.)

       The second instruction requested by Beltran's counsel, proposed special instruction

No. 5, provided:

                                             8
          "You have heard evidence that the defendant killed the decedent at
          the decedent's request. You are the exclusive judges of whether the
          defendant killed the decedent, and if so, whether the defendant killed
          the decedent at the decedent's request. If you find that the defendant
          killed the decedent at the decedent's request, you may find that the
          fact that the killing was committed at the decedent's request negates
          any express or implied malice on the part of the defendant." (Italics
          added.)

       At a jury instruction conference, in support of his request that the court give these

proposed instructions to the jury, Beltran's counsel argued that the California Supreme

Court "apparently ha[d] not addressed" the question of whether a killing carried out at the

request of the victim "should act to obviate malice," thereby reducing the crime of murder

to that of voluntary manslaughter.

       The court denied defense counsel's request, responding that the proposed

instructions "fl[y] in the face" of the Supreme Court's decision in People v. Matlock

(1959) 51 Cal.2d 682 (Matlock).

       B. Analysis

       In his opening brief, Beltran correctly acknowledges that "the current law does not

support his contention that his mercy killing of his friend [(Cruz)] at his friend's request

was an act less than murder due to the absence of malice." Indeed, Matlock, supra, 51

Cal.2d 682─which the court cited in denying defense counsel's request that proposed

special instructions Nos. 1 and 5 be given to the jury─is virtually on point. In Matlock,

the California Supreme Court was presented with the issue of whether someone who

actively participates in the final overt act that causes the death of a suicide victim─at the

victim's request (see id. at p. 687)─is guilty of murder or may be found guilty of the

                                              9
felony offense of deliberately aiding, advising, or encouraging the victim to commit

suicide in violation of section 401.4 (Matlock, supra, 51 Cal.2d at pp. 693-694.) The

defendant in that case admitted that he strangled the victim and took the victim's money,

claiming he did so at the victim's request because the victim told him he only had six

months to live and wanted to die in a way that appeared to be a "murder-robbery" in order

to avoid forfeiting the benefits of his insurance policy. (Id. at pp. 689, 694.) A jury

found the defendant guilty of first degree murder and second degree robbery. (Id. at p.

687.)

        On appeal, the Matlock defendant acknowledged he could be guilty of aiding

suicide in violation of section 401, but claimed he could not be guilty of murder, and thus

the trial court erred in refusing his requested jury instructions based on section 401.

(Matlock, supra, 51 Cal.2d at p. 693.) Rejecting these claims, the Supreme Court held

that, "[i]n these circumstances," the trial court properly refused to give the instruction

based on section 401 because the defendant's active participation in the final overt act

causing the victim's death barred the application of section 401. (Matlock, supra, 51

Cal.2d at p. 694; see In re Joseph G. (1983) 34 Cal.3d 429, 435 [stating that, in Matlock,

"we held that the defendant's active participation in the final overt act causing the victim's

death, i.e., strangling him, precluded the application of the aiding suicide statute

[(§ 401)]"].) The Matlock court explained that the defendant's active participation in the

4     Section 401 provides: "Every person who deliberately aids, or advises, or
encourages another to commit suicide, is guilty of a felony."
                                              10
overt act that resulted in the victim's death "constitute[d] murder," and it was "wholly

immaterial" that the defendant acted at the request of the victim:

          "'[W]here a person actually performs, or actively assists in
          performing, the overt act resulting in death, such as shooting or
          stabbing the victim, administering the poison, or holding one under
          water until death takes place by drowning, his act constitutes
          murder, and it is wholly immaterial whether this act is committed
          pursuant to an agreement with the victim, such as a mutual suicide
          pact.'" (Matlock, supra, 51 Cal.2d at p. 694, italics added.)

       We addressed Matlock in People v. Cleaves (1991) 229 Cal.App.3d 367 (Cleaves),

which also is virtually on point. In Cleaves, the accused's defense to a murder charge

was that he killed the victim, who was suffering from AIDS, at the victim's request to

relieve the victim's suffering. (Id. at pp. 372-373.) Pursuant to the victim's request, the

defendant assisted him in strangling himself. (Ibid.) At trial the court instructed the jury

on first and second degree murder only, refusing to instruct the jury on the lesser related

offense of aiding and abetting suicide, and also refusing to instruct the jury on voluntary

and involuntary manslaughter. (Id. at pp. 374-375.) The jury found the defendant guilty

of second degree murder, and he appealed to this court. (Id. at p. 371.)

       Relying on Matlock, the Cleaves defendant claimed on appeal that the facts

supported a jury instruction on a lesser related offense of voluntary manslaughter based

on his asserted lack of malice. (Cleaves, supra, 229 Cal.App.3d at pp. 371, 376.) Citing

Matlock we rejected that claim, stating:

          "[Defendant] asks us to fashion a manslaughter crime for a killing
          done at the victim's request, based on the absence of malice, which
          does not now expressly exist under California law. . . . As
          recognized by [the defendant], our Supreme Court in [Matlock],
          supra, 51 Cal.2d at page 694, defined a killing pursuant to an

                                             11
          agreement with the victim as murder. Although Matlock does not
          address the absence of malice issue, as a lower tribunal we decline to
          deviate from the parameters of Matlock." (Cleaves, supra, 229
          Cal.App.3d at p. 376, citing Auto Equity Sales, Inc. v. Superior
          Court (1962) 57 Cal.2d 450, 455.)

       We also stated in Cleaves that "[w]e leave it to our Supreme Court to resolve

whether it is appropriate to examine the malice issue as it pertains to a killing at the

victim's request." (Cleaves, supra, 229 Cal.App.3d at p. 377.)

       Here, we are constrained─as we were in Cleaves─by the California Supreme

Court's holdings in Matlock, supra, 51 Cal.2d at page 694, that an unlawful homicide

committed by a defendant who claims the offense was a mercy killing done at the request

of the victim is murder, and that it is wholly immaterial whether the defendant's active

participation in the overt act resulting in the victim's death took place pursuant to an

agreement with the victim. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d

at p. 455.) Accordingly, we affirm Beltran's conviction of second degree murder.

                 II. SECTION 12022.53(d) FIREARM ENHANCEMENT

       Beltran alternatively contends that, if this court affirms his murder conviction, the

consecutive sentence enhancement of 25 years to life imposed under section

12022.53(d)5 (for discharging a firearm, causing death, during the commission of the

5       When Beltran murdered Cruz in 2008, former section 12022.53(d) provided:
"Notwithstanding any other provision of law, any person who, in the commission of a
felony specified in subdivision (a), Section 246, or subdivision (c) or (d) of Section
12034, personally and intentionally discharges a firearm and proximately causes great
bodily injury, as defined in Section 12022.7, or death, to any person other than an
accomplice, shall be punished by an additional and consecutive term of imprisonment in
the state prison for 25 years to life." (Stats. 2006, ch. 901, § 11.1.) In 2010, former
                                              12
murder) must be stricken and a determinate term of 20 years imposed in its place under

section 12022.53(c) because (1) "the plain language of [section 12022.53(d)] indicates

that it applies 'to any person other than an accomplice'" (italics added); (2) Cruz was an

accomplice because he "was an aider and abettor as well as a coconspirator to the crime

of his killing" in that "[he] asked [Beltran] to kill him"; and, thus, (3) the court erred in

preventing the jury from determining whether Cruz was an accomplice by modifying

CALCRIM No. 3149─the standard jury instruction on section 12022.53(d)─"by

eliminating the need for the jury to determine whether Cruz was 'any person other than an

accomplice.'"

       We reject this contention and affirm the section 12022.53(d) firearm enhancement

because (1) Cruz could not have been charged with murder or any other crime had he

survived the shooting; and, thus, (2) Cruz was not an accomplice within the meaning of

the accomplice exception to that firearm enhancement as a matter of law.

       A. Background

       1. Section 12022.53(d) firearm enhancement allegation

       As to the murder offense, the information alleged that Beltran, in committing the

murder, personally and intentionally discharged a firearm causing great bodily injury and

death to the victim (Cruz) within the meaning of the firearm enhancement set forth in

section 12022.53(d).

section 12022.53(d) was amended (operative Jan. 1, 2012) to change the reference to
"Section 12034" to "Section 26100." (Stats. 2010, ch. 711, § 5.) In all other respects
former section 12022.53(d) and the current version of section 12022.53(d) are identical.
Because the post-2008 amendment of the statute does not alter our analysis, in the
interest of clarity we refer here to the current version of section 12022.53(d).
                                              13
       2. Modified version of CALCRIM No. 3149 given by the court

       During an unreported jury instruction conference, the court modified CALCRIM

No. 3149─the standard jury instruction on the section 12022.53(d) firearm

enhancement─and instructed the jury on that enhancement as follows:

          "If you find the defendant guilty of murder in the first or second
          degree in Count 1, you must then decide whether the People have
          proved the additional allegation that the defendant personally and
          intentionally discharged a firearm during that crime causing death.

          "To prove this allegation, the People must prove that: [¶] 1. The
          defendant personally discharged a firearm during the commission of
          that crime; [¶] 2. The defendant intended to discharge the firearm;
          [¶] AND [¶] 3. The defendant's act caused the death of a person.

          "The People have the burden of proving each allegation beyond a
          reasonable doubt. If the People have not met this burden, you must
          find that the allegation has not been proved." (Italics added.)

       Thus, under the modified version of CALCRIM No. 3149 given by the court, the

foregoing italicized third element (hereafter element No. 3), which the prosecution was

required to prove in order to obtain a true finding on the section 12022.53(d) firearm

enhancement allegation, required proof that "[t]he defendant's act[] caused the death of a

person." In modifying CALCRIM No. 3149, the court omitted from element No. 3 the

bracketed phrase "who was not an accomplice to the crime."6 The unmodified version of

6      When Beltran committed the murder in August 2008, element No. 3 of former
CALCRIM No. 3149 (like element No. 3 of the current version of CALCRIM No. 3149)
included the bracketed accomplice exception and provided in part: "To prove this
allegation, the People must prove that: [¶] 1. The defendant personally discharged a
firearm during the commission . . . of that crime; [¶] 2. The defendant intended to
discharge the firearm; [¶] AND [¶] 3. The defendant's act caused . . . the death of . . . a
person [who was not an accomplice to the crime]." (CALCRIM No. 3149 (Spring 2008),
                                            14
element No. 3, had it been given by the court, would have included the bracketed

accomplice exception language and would have required proof that "[t]he defendant's act

caused . . . the death of . . . a person [who was not an accomplice to the crime]."

(CALCRIM No. 3149, italics added.)

       In modifying CALCRIM No. 3149, the court also omitted the following bracketed

definition of "accomplice":

          "[A person is an accomplice if he or she is subject to prosecution for
          the identical crime charged against the defendant. A person is
          subject to prosecution if he or she committed the crime or if: [¶] 1.
          He or she knew of the criminal purpose of the person who
          committed the crime; [¶] AND [¶] 2. He or she intended to, and did
          in fact, (aid, facilitate, promote, encourage, or instigate the
          commission of the crime/ [or] participate in a criminal conspiracy to
          commit the crime).]" (CALCRIM No. 3149, original italics.)

       3. Jury's finding on the section 12022.53(d) firearm enhancement allegation and
the imposition of the 25-year-to-life enhancement at sentencing

       Based on the modified version of CALCRIM No. 3149 given by the court

(discussed, ante), the jury found to be true the section 12022.53(d) firearm enhancement.

As a result of that true finding, the court imposed at sentencing the consecutive

indeterminate prison term enhancement of 25 years to life mandated by section

12022.53(d).

       B. Section 12022.53 and the accomplice exception to section 12022.53(d)

       Section 12022.53, which is also known as the "10–20–life" law, "was enacted in

1997 to substantially increase the penalties for using firearms in the commission of

italics added; cf. CALCRIM No. 3149 (2014).) For clarity's sake we refer to the current
version of CALCRIM No. 3149.
                                             15
enumerated felonies," including, as relevant here, murder. (People v. Palmer (2005) 133

Cal.App.4th 1141, 1148-1149; § 12022.53, subd. (a)(1) (Palmer).) "The statute

prescribes sentence enhancements (prison terms of 10 years, 20 years, and 25 years to

life) for increasingly serious circumstances of firearm use. [Citations.] Section

12022.53[(b)] requires imposition of an additional, consecutive term of 10 years when the

defendant personally uses a firearm during commission of the crime. Subdivision (c)

requires imposition of an additional, consecutive 20-year term when the defendant

personally and intentionally discharges a firearm during commission of the crime.

[Section 12022.53(d)], the provision at issue here, requires imposition of an additional,

consecutive 25-year-to-life term when the defendant 'personally and intentionally

discharges a firearm and proximately causes great bodily injury, as defined in Section

12022.7, or death, to any person other than an accomplice . . . .'" (Palmer, supra, 133

Cal.App.4th at p. 1149, italics added, original italics omitted; § 12022.53(d).)

       Thus, under the accomplice exception set forth in section 12022.53(d), the 25-

year-to-life sentence enhancement provided by section 12022.53(d) does not apply if the

victim of an enumerated crime committed by the defendant was an accomplice to a crime

he or she and the defendant intended to commit. (§ 12022.53(d); People v. Flores (2005)

129 Cal.App.4th 174, 182 (Flores) ["If the victim is an accomplice to the crime he or she

and defendant intended but ends up the victim of one of the enumerated offenses, the

[accomplice] exception in section 12022.53[(d)] applies."].)

                                             16
      C. Analysis

      In this case substantial evidence presented at trial (discussed, ante, in the factual

background) shows, and the Attorney General does not dispute, that Beltran shot and

killed the victim─his friend and coworker, Cruz─at Cruz's request. The jury found

Beltran guilty of second degree murder and the court imposed the challenged firearm

enhancement of 25 years to life under section 12022.53(d) without instructing the jury to

determine whether Cruz was an accomplice to the crime.

      The principal question we must decide is whether Cruz was an "accomplice" to the

murder within the meaning of the accomplice exception set forth in section 12022.53(d).

Under the accomplice exception, as already discussed, the 25-year-to-life sentence

enhancement provided by section 12022.53(d) applies only if the defendant, in

discharging a firearm during his or her commission of an enumerated offense (here,

murder), proximately caused great bodily injury or (as occurred here) death to someone

"other than an accomplice." (§ 12022.53(d); Flores, supra, 129 Cal.App.4th at p. 182.)

Thus, if─as Beltran contends─Cruz was an accomplice to his own murder because he

asked Beltran to kill him, the accomplice exception to the section 12022.53(d) firearm

enhancement applies and we must conclude both that the court erroneously modified

CALCRIM No. 3149 by omitting the accomplice exception language ("other than an

accomplice") that would have required the jury to determine whether Cruz was an

accomplice and that the court erroneously imposed the 25-year-to-life sentence

enhancement under section 12022.53(d). If Cruz was not an accomplice, as the Attorney

General contends, we must conclude both that the court properly gave to the jury the

                                            17
modified version of CALCRIM No. 3149 (discussed, ante), and that it properly imposed

the firearm enhancement under section 12022.53(d).

       Our analysis hinges on the legal definition of "accomplice." As this court

explained in People v. Verlinde (2002) 100 Cal.App.4th 1146, "[a]ccomplice liability is

'"derivative,"' resulting from an act by the perpetrator to which the accomplice

contributed." (Id. at p. 1158, quoting People v. Prettyman (1996) 14 Cal.4th 248, 259.)

"Put another way, '"[a]n accomplice" is one who knowingly, voluntarily, and with

common intent with the principal offender unites in the commission of the crime.'"

(Verlinde at p. 1158, quoting People v. Jones (1967) 254 Cal.App.2d 200, 213.)

       However, for a person to be an accomplice it is not sufficient that he or she

knowingly, voluntarily, and with common intent with the principal offender unites in the

commission of the crime. The California Supreme Court has explained that "[s]ection

1111[7] defines a[n] accomplice as a person 'who is liable to prosecution for the identical

offense charged against the defendant on trial [and] that [t]his definition encompasses all

principals to the crime [citation], including aiders and abettors and coconspirators."

(People v. Stankewitz (1990) 51 Cal.3d 72, 90, italics added.) Thus, in order to be an

accomplice, a person also "'must be chargeable with the crime as a principal (§ 31) . . . .'"

(Verlinde, supra, 100 Cal.App.4th at p. 1158, quoting People v. Sully (1991) 53 Cal.3d

1195, 1227, italics added; § 1111.) "Whether a person is an accomplice is a question of

7        Section 1111 provides in pertinent part: "An accomplice is hereby defined as one
who is liable to prosecution for the identical offense charged against the defendant on
trial in the cause in which the testimony of the accomplice is given." (Italics added.)
                                             18
fact for the jury unless there is no dispute as to either the facts or the inferences to be

drawn therefrom." (Stankewitz, at p. 90.)

       Beltran, however, disputes that in order to be deemed an "accomplice" within the

meaning of section 12022.53(d), a person must be chargeable with a crime. Specifically,

he asserts that Cruz "was an 'accomplice' to his own murder whether or not he could be

charged with a crime." (Italics added.) Correctly noting that section 1111 "is a very old

statute from 1872" (see 50B West's Ann. Pen. Code (2004 ed.) foll. § 1111, p. 383) and

that section 12022.53 "was added in 1997" (see Palmer, supra, 133 Cal.App.4th at p.

1148), Beltran also asserts that, "[h]ad the Legislature in enacting Section 12022.53

meant for the definition of an accomplice to be that of Section 1111, it would have said

so." These assertions are without merit. As Beltran himself acknowledges, it is an

established rule of statutory construction that "the Legislature is deemed to be aware of

statutes . . . already in existence and to have enacted a statute in light of existing statutes

and decisions." (People v. Kelly (2013) 215 Cal.App.4th 297, 305, citing People v. Yartz

(2005) 37 Cal.4th 529, 538.) Thus, when the Legislature enacted section 12022.53 in

1997, it presumably was aware of the definition of accomplice set forth in section 1111,

an existing statute. Accordingly, we presume that if the Legislature in enacting section

12022.53 had intended that the definition of accomplice set forth in section 1111 not

apply, it would have said so. (Yartz, supra, 37 Cal.4th 529 at p. 538; Kelly, supra, 215

Cal.App.4th at p. 305.)

       Turning to the undisputed facts of this case, we conclude that Cruz was not an

accomplice to his own murder within the meaning of the accomplice exception set forth

                                               19
in section 12022.53(d) as a matter of law, and thus the court did not err in modifying

CALCRIM No. 3149 and in imposing the 25-year-to-life firearm enhancement under

section 12022.53(d), because Cruz could not have been lawfully charged with any crime,

including attempted murder, had he survived the shooting perpetrated by Beltran at

Cruz's request. "Murder is the unlawful killing of another human being . . . with malice

aforethought." (1 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Crimes Against

the Person, § 97, p. 887, italics added; CALCRIM No. 500 [stating in part that

"[h]omicide is the killing of one human being by another" and murder is a type of

homicide].) Thus, had Cruz survived the shooting, he would not have been chargeable as

an accomplice to attempted murder because he was not liable to prosecution for his own

unlawful killing. (1 Witkin & Epstein, Cal. Criminal Law, supra, § 97. p. 887;

CALCRIM No. 500; see In re Joseph G. (1983) 34 Cal.3d 429, 433 ["[M]ost [American

jurisdictions], including California, attach no criminal liability to one who makes a

suicide attempt."]; In re Ryan N. (2001) 92 Cal.App.4th 1359, 1373 ["Neither suicide nor

attempted suicide is a crime under the criminal statutes of California or any other state."])

       Beltran's reliance on Flores, supra, 129 Cal.App.4th 174, is unavailing. In that

case the defendant (Flores) and a fellow gang member (Valdivia) conspired to commit a

battery on a rival gang member (Morales). (Id. at p. 182.) While Valdivia was fighting

with Morales during a gang brawl, Flores shot at Morales with a firearm but hit and killed

Valdivia. (Ibid.) The prosecution charged Flores with the murder of Valdivia and

alleged that Flores's sentence should be enhanced under the then-existing version of

section 12022.53(d) that, like the version of section 12022.53(d) at issue in this case,

                                             20
applied only if the victim of the defendant's enumerated crime was someone "other than

an accomplice."8 (Flores, at p. 181.) Like the court in the instant case, the trial court in

Flores failed to include the words "other than an accomplice" when it instructed the jury

on the section 12022.53(d) firearm enhancement. (Flores, at pp. 177, 181.) A jury found

Flores guilty of the first degree murder of Valdivia and also found to be true the section

12022.53(d) enhancement allegation. (Flores, at p. 180.) At sentencing, the trial court

imposed the 25-year-to-life sentence enhancement provided by section 12022.53(d).

(Ibid.)

          On appeal, the Flores court held that when the trial court struck the words "other

than an accomplice" from the jury instruction on the section 12022.53(d) enhancement, it

erroneously "withdrew from the jury the opportunity to consider whether Valdivia was an

accomplice to defendant's discharge of the firearm either as an aider and abettor or as a

coconspirator." (Flores, supra, 129 Cal.App.4th at p. 183.) Observing that "[t]he

Legislature [in enacting section 12022.53(d)] apparently decided that killing one's

accomplice is less blameworthy (or at least less deserving of punishment) than killing a

nonaccomplice" (Flores, at p. 181), the Court of Appeal reasoned that, "[h]ad [Flores's]

shot hit only Morales or Morales and some other person" (ibid.)─in other words, had the

8       The former version of section 12022.53(d) at issue in Flores provided:
"'Notwithstanding any other provision of law, any person who is convicted of a felony
specified in subdivision (a), . . . and who in the commission of that felony intentionally
and personally discharged a firearm and proximately caused . . . death[] to any person
other than an accomplice, shall be punished by a term of imprisonment of 25 years to life
in the state prison, which shall be imposed in addition and consecutive to the punishment
prescribed for that felony.'" (Flores, supra, 129 Cal.App.4th at p. 181, original italics.)
                                               21
murder victim, Valdivia, survived─Valdivia "would surely have been charged as a

coconspirator and an aider and abettor of defendant's crimes, i.e., an accomplice." (Ibid.,

italics added.) The Flores court explained that, "[i]f the victim is an accomplice to the

crime he or she and defendant intended but ends up the victim of one of the enumerated

offenses, the exception in section 12022.53[(d)] applies." (Flores, at p. 182.)

       Beltran's reliance on Flores is unavailing because that case is distinguishable. The

murder victim in Flores was an accomplice for purposes of section 12022.53(d) because,

had he survived the shooting, he would have been liable to prosecution as an aider and

abettor, and as a coconspirator, for the crime he and the defendant intended to commit.

Here, as already discussed, Cruz would not have been liable to prosecution as an

accomplice for the crime he asked Beltran to commit: his own unlawful killing.

       For all of the foregoing reasons, we affirm the 25-year-to-life sentence that the

court imposed on Beltran under section 12022.53(d).

                                      DISPOSITION

       The judgment is affirmed.

                                                                                NARES, J.
WE CONCUR:

BENKE, Acting P. J.

McDONALD, J.

                                             22


421 S.W.2d 427 (1967)
The CITY OF HOUSTON, Appellant,
v.
SOCONY MOBIL OIL COMPANY, Inc., Appellee.
No. 15118.
Court of Civil Appeals of Texas, Houston (1st Dist.).
November 16, 1967.
Rehearing Denied December 7, 1967.
*428 William A. Olson, City Atty., Homer T. Bouldin, Trial Supervisor, Joseph G. Rollins, Senior Asst. City Atty., Houston, for appellant.
William H. Tabb, John A. Berke, Jr., David R. Latchford, Jerome E. Dawkins, Dallas, for appellee.
COLEMAN, Justice.
This is a suit for the damage resulting to real estate from the lowering of the grade of Long Point and Foley Streets by the City of Houston. After appellee secured an interlocutory summary judgment decreeing *429 liability, the cause was tried to a jury on the question of damages. Based on the jury verdict and the interlocutory summary judgment, the trial court entered a final judgment in favor of appellee.
Appellant contends that the trial court erred in overruling its motion for judgment non obstante veredicto because the evidence established that the City of Houston levied a paving assessment on the property in question and appellee failed to appeal from such assessment in the manner provided by law, and, further, estopped itself from denying that the property was enhanced in value by the paving by paying the assessment, which was based on the enhanced value of the property. By its other point appellant contends that the trial court erred in entering judgment for appellee for the same reasons.
The summary judgment establishing liability was based on the unsworn pleadings of the parties and the answers made to certain requests for admissions of fact. In its petition appellee alleged ownership of certain real property fronting 125 feet on Long Point Road and 125 feet on Old Campbell Road (Foley Street) within the City of Houston. This property was improved by the construction of a modern gasoline service station. In connection with a street improvement program the City of Houston lowered the grade on Long Point Road and Foley Street from two to three feet, thereby destroying all approaches to and entries upon the plaintiff's premises. It was alleged that as a result of the steep grades between the plaintiff's lot and the streets resulting from this work, it is impossible to construct suitable driveways to the filling station and that in order to restore the premises to a suitable condition for use as a filling station it would be necessary to remove all improvements and lower the grade of the lot. The petition alleged damage in the sum of $21,205.00.
In its answer the City of Houston alleged that by Ordinance No. 61-1982 enacted by the City on November 1, 1961, the City Council of the City of Houston determined the necessity for the paving of Long Point Road and of assessing the various abutting property owners, including plaintiff, for this work; that thereafter, and in compliance with law, due notice was given to plaintiff of this paving assessment and opportunity was afforded the plaintiff to protest same and present any claims for damages but, instead, on April 4, 1963 it did voluntarily pay the full amount of the paving assessment assessed against it for net benefits and enhancements to plaintiff's property resulting from such paving; hence, any claim for diminution in market value to its premises which plaintiff might otherwise have had has been expressly waived by said plaintiff.
The plaintiff's unsworn motion for summary judgment was filed on October 21, 1965, and alleged that the attached interrogatories and admissions show that, except for the amount of damages, there is no genuine issue as to any material fact. This motion was set for hearing on November 8, 1965. On this date the City filed its unsworn answer to the motion for summary judgment in which it stated that in addition to the question of damages there remained to be proved other facts in order to establish the liability of the City, and that the burden of proving such facts rested on the plaintiff.
The trial court proceeded to hear the motion and, on November 8, 1965, entered a decree sustaining the motion and ordering that the cause proceed to trial on the sole issue of damages.
After the entry of this decree the plaintiff filed a supplemental petition in answer to certain special exceptions contained in the City's answer. On the 6th day of June, 1966, the special exceptions were heard and the trial court entered an order overruling them with the exception of one bearing on the issue of damages.
The cause proceeded to trial on the issue of damages on November 14, 1966, and a judgment was entered on the 19th day of *430 December, 1966, reciting the fact that the issue of liability had been established by the order of the 113th Judicial District Court on November 8, 1965, and setting out the issues on damages together with the answers of the jury. The judgment then decreed that the plaintiff recover the sum of $7,750.00, representing the difference in the market value of the property immediately before and immediately after the damage.
Appellant presented the matters it relies on for reversal in its motion for judgment non obstante veredicto and in its motion for new trial. In its motion for judgment it alleged that it was entitled to an instructed verdict by reason of the failure to appeal from the special assessment and the subsequent payment thereof. There was no mention of the summary judgment and, of course, no motion to set it aside. In the motion for new trial appellant complained of the failure to grant an instructed verdict; alleged error in submitting the case to the jury, and alleged error in that the court refused its motion for judgment non obstante veredicto. There was no complaint made to the court entering the final judgment that the 113th District Court had erred in entering the partial summary judgment at any stage of the proceeding, unless such complaint can be implied from the recitation in the judgment that the defendant duly excepted and gave notice of appeal.
Appellant has no point in its brief in this Court specifically complaining of the action of the trial court in granting the partial summary judgment. The summary judgment is not mentioned by appellant in its argument under either of the points presented.
During the trial of the damage issue before the jury, the trial court sustained appellee's objection to appellant's proffered evidence concerning the paving assessment. The final judgment incorporated the partial summary judgment and was based thereon.
Rule 166-A, Texas Rules of Civil Procedure, specifically provides that a summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages. It is provided that the judgment shall be rendered on the pleadings, depositions, admissions, and affidavits on file, and that no oral testimony shall be received at the hearing. If there is no genuine issue as to a material fact developed on the basis of this evidence, the movant is entitled to a judgment. The rule also provides that when judgment is not rendered on the whole case or for all the relief asked, the trial court shall ascertain if practicable, what material facts exist without substantial controversy and shall set out such facts in an order. On the final trial such facts shall be deemed established and the trial shall be conducted accordingly.
It is the clear purport of this rule to make the issues determined on the motion for summary judgment final. Once an interlocutory summary judgment is entered, the issues decided cannot be further litigated unless the judgment is set aside by the trial court, or unless the summary judgment is reversed on appeal. An interlocutory summary judgment is not appealable until a final judgment is entered disposing of all parties and issues in the cause. Maples v. Klimist, 377 S.W.2d 774 (Tex.Civ.App., Texarkana, 1964).
An appeal from a final judgment, in which an interlocutory summary judgment has been merged, presents an opportunity for an appeal from the summary judgment. If the appeal results in a reversal on points not involved in the summary judgment, that portion of the case decided on summary judgment will not be remanded for a new trial. Coleman v. Hudson Gas & Oil Corporation, 403 S.W.2d 482 (Tex.Civ.App., Beaumont, 1966, ref. n. r. e.).
A question not presented in a point of error, or by argument under the points of error, in appellant's brief, cannot be considered. Lott v. Lott, 370 S.W.2d 463 (Tex. Sup., 1963).
*431 If by liberal construction we may hold that the question of waiver of damages by reason of failure to appeal from the action of the City Council in finding that the street improvements enhanced the value of the property of appellee and levying an assessment, which was paid by appellant, was presented to this Court by appellant's points, we find no merit in the points.
The propriety of the action of the trial court in granting the summary judgment depends on the facts properly before the Court at the time the judgment was entered. The burden was on the movant for a summary judgment, in an action in which the defendant has pleaded an affirmative defense, to demonstrate by evidence that there is no material factual issue upon elements of his claim. He is then entitled to his judgment unless his opponent comes forward with a showing that there is such a disputed fact issue upon his affirmative defense. It is not incumbent upon the plaintiff to incorporate in his pleading allegations which negative the affirmative defense. Gulf, Colorado & Santa Fe Railway Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492 (1959).
Appellant's points do not challenge the propriety of the summary judgment except insofar as a material question of fact is raised as to the failure of appellee to appeal from the order levying the special assessment and finding that the property was enhanced in value by the street improvements, and insofar as a question of waiver of damage was raised by appellee's action in voluntarily paying the assessment.
There were no affidavits, depositions, or admissions on file as of November 8, 1965, tending to raise issues of fact as to any of these matters. Plaintiff's supplemental petition and brief in support of the petition, filed April 26, 1966, and the admissions of fact filed on March 19, 1966, in response to interrogatories, cannot be considered since the summary judgment was entered prior thereto. For the same reason the evidence introduced at the trial on the bill of exceptions cannot be considered. There was no summary judgment evidence to support the allegations in appellant's answer. Since we are of the opinion that the matters sought to be raised constituted affirmative defenses, appellant had the burden of submitting evidence raising issues of fact with reference thereto. Gulf, Colorado & Santa Fe Railway Co. v. McBride, supra.
The judgment of the Trial Court is affirmed.


426 S.W.2d 84 (1968)
STATE of Missouri, Plaintiff-Respondent,
v.
Charles Earl HAMMOND, Defendant, and
Maryland National Insurance Company, Surety, Appellant.
No. 53098.
Supreme Court of Missouri, Division No. 1.
April 8, 1968.
*85 Robert G. Duncan, Pierce, Duncan, Beitling & Shute, Kansas City, for appellant.
Norman H. Anderson, Atty. Gen., J. Steve Weber, Asst. Atty. Gen., Jefferson City, for respondent.
HOUSER, Commissioner.
This is an appeal from an order overruling a surety company's motion for a remittitur following entry of a judgment of forfeiture of defendant's appearance bond in a burglary and larceny prosecution.
Defendant Charles Earl Hammond posted the bond in magistrate court. Bound over to circuit court, defendant failed to make an appearance on the date set by the court, whereupon the court ordered forfeiture of the bond and that a scire facias issue to defendant and the surety. The scire facias issued and was served on the attorney-infact for the surety company. A non est return was made as to defendant Hammond.
The surety filed a motion for remittitur of all or part of the bond "for the reason that said surety was unable to return said defendant to the jurisdiction of this Court, because he is incarcerated in another state." The motion was overruled; judgment was entered against the surety for $4,000 and the surety appealed.
Appellant's first point is that the court erred in entering judgment of forfeiture because no motion for judgment was filed and the procedure established by Criminal Rule 32.12[1] was not followed.
Criminal Rule 32.12 provides as follows: "If there is a breach of condition of a bond, the court in which a criminal case or proceeding is then pending shall declare a forfeiture of the bail. The court may direct that a forfeiture be set aside, upon such conditions as the court may impose, if it appears that justice does not require the enforcement of the forfeiture. When a forfeiture has not been set aside, the court shall on motion enter a judgment of default and execution may issue thereon. By entering into a bond the obligors submit to the jurisdiction of the court in which the defendant is required to appear under the condition thereof and in which a prosecution is or may be pending against the defendant and irrevocably appoint the clerk of the court as their agent upon whom any papers affecting their liability may be served. Their liability may be enforced on motion without the necessity of an independent action. The motion and such notice of the motion as the court prescribes may be served on the clerk of the court, who shall forthwith mail copies to the obligors to their last known addresses."
The procedure followed did not constitute literal compliance with Criminal Rule 32.12. The irregularity, however, was technical and nonprejudicial. It is not *86 questioned that the court had jurisdiction over the subject matter and over the surety. It is indisputable that the surety had due notice and an opportunity to be heard and to show cause why "justice does not require the enforcement of the forfeiture." The surety did in fact make a showing upon the basis of which it prayed for remittitur. It showed that at the time of the setting of the case defendant was incarcerated in Oklahoma State Penitentiary at McAlester; that the surety had diligently attempted to obtain his return to this jurisdiction for trialhad done everything possible to produce him, including sending two detainer warrants to the Oklahoma authorities. The surety makes no showing or contention that it has been prejudiced by the procedure employed, contending simply that scire facias "was not the appropriate procedure for the enforcement of the bond forfeiture herein."
The irregularity of the proceedings has resulted in no actual prejudice to the appellant. If Criminal Rule 32.12 had been followed the court, after declaring the forfeiture, could have directed that the forfeiture be set aside if justice did not require enforcement of the forfeiture. If the forfeiture was not set aside the court, acting under the rule, could have entered judgment of default and issued execution, on motion. While no motion for judgment was filed, the office of the motion was fulfilled in the procedure followed and appellant was not prejudiced by its omission. Civil Rule 83.13 (b) and § 512.160 [2], RSMo 1959, V.A.M.S., provide that "No appellate court shall reverse any judgment, unless it believes that error was committed by the trial court against the appellant, materially affecting the merits of the action." In state ex rel. Kansas City University of Physicians and Surgeons v. North, 316 Mo. 1050, 294 S.W. 1012, 1. c. 1014 [4], the Court en Banc said: "We do not feel constrained, in view of the facts in this case, to seriously consider the technical procedural errors complained of by the appellant. Error, to merit consideration, should be such as to work injury to the complainant. The facts do not sustain such a contention." The office and purpose of the scire facias are to notify the sureties of the default of the principal "and afford them an opportunity to show cause why execution should not be awarded against them." State v. Austin, 141 Mo. 481, 43 S.W. 165, 167. No other or greater opportunity to be relieved from the burden of the recognizance would have been afforded the surety if the procedure under the rule had been followed to the letter. While Criminal Rule 32.12 should be followed the rule does not prohibit the instant procedure, indeed, does not prohibit an independent suit to enforce liability on a bond filed in a criminal case. State v. Haverstick, Mo. Sup., 326 S.W.2d 92, 95 [2], 75 A.L.R.2d 1422. The proceeding adopted in this case is not to be defeated and the judgment of forfeiture is not to be set aside for the irregularity noted. "In such a case it has been said that `[t]he court will look at the whole record, and if it appears that the recognizance was duly executed, and judgment of forfeiture entered, and the record be sufficient to support the judgment, the proceeding will be sustained, although there may be omissions and irregularities in the recognizance or scire facias. * * *.' State v. Adank, Mo.Sup., 256 S.W. 768; State v. Potts, 60 Mo. 368, 369; State v. Whitsell, 55 Mo. 430; Kelley's Criminal Law and Procedure, 4th Ed., Sec. 102." Idem. The Supreme Court of Florida, in a case in which an adoption had been decreed despite the fact that the proceedings were irregular, certain formalities prescribed by statute not having been followed, upheld the decree, asking and answering its own questions in the following language, which we adopt as entirely appropriate in this case: "But where is the harm or injury? Where is the harmful error? No one appears to have been injured by reason of these irregularities. Prescribed formulas of procedure are to provide a means to an end. When they relate to the means by which jurisdiction is to be acquired they are substantive and must be pursued with great *87 strictness, but when they relate to the exercise of jurisdiction which is otherwise complete, a breach thereof not shown to be harmful is taken to be harmless error." In re Johnson, 157 Fla. 25, 24 So.2d 711, 712.
Appellant's second point is that the court abused its discretion in overruling the surety's motion for remittitur because the surety exercised diligence and did everything it could possibly do to secure the appearance of the defendant, an impossibility because of his incarceration in the foreign penitentiary. Appellant refers to State v. Wynne, 356 Mo. 1095, 204 S.W.2d 927, which recites the general rule that sureties are discharged as a matter of law when the return of the defendant is prevented by an act of God, an act of the law or an act of the obligee, the state where the criminal charge is pending. Appellant concedes that State v. Horn, 70 Mo. 466, 35 Am.Rep. 437, holds that the fact that a defendant was arrested, tried, convicted, sentenced and imprisoned in another state, and therefore was prevented from performing the conditions of the recognizance for his appearance, is no defense available to the surety in a scire facias proceeding on the recognizance. Judge Hyde stated the rule thus: "It is well settled that if the principal goes to another jurisdiction and is there imprisoned for violation of its laws, the sureties are not discharged. [6 Am.Jur. 103, Sec. 140; 8 C.J.S. Bail § 77, p. 149; Annotation 26 A.L.R. 412; State v. Horn, 70 Mo; 466, 35 Am.Rep. 437; State v. Adank, Mo.Sup., 256 S.W. 768.] * * *" State v. Wynne, supra, 204 S.W.2d 1. c. 934. More recently the rule was applied in State v. Haverstick, Mo.Sup., 326 S.W.2d 92, 95, 75 A.L.R.2d 1422. Appellant contends that we should no longer follow these decisions because of new laws, practices, procedures, rapid means of transportation and communication and other changes, particularly in a case where a detainer is placed on defendant, whereby his appearance is "assured." We are not so persuaded. The considerations of public policy underlying those decisions are as cogent now as they were when the rule was first announced. Criminal Rule 32.12 neither affords nor suggests any new reason for excusing a surety under these circumstances. "Sureties know and solemnly contract that the defendant shall appear and abide the orders of the court and in the event of his default are bound by their obligation. Recognizances are not idle forms. If sureties, who have it in their power to insure compliance by a defendant, may be relieved because they make diligent effort for his arrest as a fugitive there exists little inducement for diligence on their part in the first instance to prevent his escape. To exonerate sureties for such reason would seriously impede the declared public policy of the State for the prevention and punishment of crime. It is more important that an accused be forthcoming for trial and of greater importance that he be forthcoming for sentence than that the expense of keeping him in prison be avoided." State v. Hinojosa, 364 Mo. 1039, 271 S.W.2d 522, 1. c. 524.
Other reasons for denying relief to the surety are these: the performance of the contract has not been prevented by the act of the obligee, the State of Missouri, or the law of this state; the removal of the principal to Oklahoma and his falling into the toils of the law of that state are the result of defendant's own voluntary act; the surety is at fault for permitting him to go into another jurisdiction, instead of keeping him under its control, and "if the rule were otherwise, a person accused of a serious `offense in one jurisdiction and released under heavy bail could secure the release of his bail by committing in another jurisdiction a minor offense for which he would be arrested and detained." 8 Am. Jur.2d, Bail and Recognizance, § 188, p. 886. We find no abuse of discretion in the act of the trial judge in denying the remittitur.
The judgment is affirmed.
*88 WELBORN and HIGGINS, CC., concur.
PER CURIAM:
The foregoing opinion by HOUSER, C., is adopted as the opinion of the court.
All of the Judges concur.
NOTES
[1]  Rules of the Supreme Court of Missouri, V.A.M.R.


421 F.2d 290
Scott O. ANDRUS, Jr., Petitioner-Appellee,v.John W. TURNER, Warden, Utah State Prison, Respondent-Appellant.Larry L. BRONSON, Petitioner-Appellee,v.John W. TURNER, Warden, Utah State Prison, Respondent-Appellant.Edgar E. ELDREDGE, Petitioner-Appellee,v.John W. TURNER, Warden, Utah State Prison, Respondent-Appellant.Harry L. HANSEN, Petitioner-Appellee,v.John W. TURNER, Warden, Utah State Prison, Respondent-Appellant.James LOGAN, Petitioner-Appellee,v.John W. TURNER, Warden, Utah State Prison, Respondent-Appellant.George Phillip MOORE, Petitioner-Appellee,v.John W. TURNER, Warden, Utah State Prison, Respondent-Appellant.James L. MOWER, Petitioner-Appellee,v.John W. TURNER, Warden, Utah State Prison, Respondent-Appellant.Felix ORNELAS, Petitioner-Appellee,v.John W. TURNER, Warden, Utah State Prison, Respondent-Appellant.Clyde Michael SPRINGER, Petitioner-Appellee,v.John W. TURNER, Warden, Utah State Prison, Respondent-Appellant.Mel STEPHENS, Petitioner-Appellee,v.John W. TURNER, Warden, Utah State Prison, Respondent-Appellant.
No. 556-69.
No. 558-69.
Nos. 560-69 to 564-69.
No. 566-69.
No. 568-69.
No. 569-69.
United States Court of Appeals, Tenth Circuit.
February 6, 1970.

Richard L. Bird, Jr., Salt Lake City, Utah, for appellees Scott O. Andrus, Jr., Larry L. Bronson, Edgar E. Eldredge and James L. Mower.
Louis H. Callister, Jr., Salt Lake City, Utah, for appellees Harry L. Hansen and George Phillip Moore.
Albert R. Bowen, Salt Lake City, Utah, for appellees James Logan, Felix Ornelas, Clyde Michael Springer and Mel Stephens.
Lauren N. Beasley, Chief Asst. Atty. Gen., State of Utah, Salt Lake City, Utah (Vernon B. Romney, Atty. Gen., on the brief), for appellant.
Before PICKETT, LEWIS and HICKEY, Circuit Judges.
PICKETT, Circuit Judge.

1
These habeas corpus cases present identical issues and have been consolidated for disposition on appeal. Each petitioner was convicted and sentenced in the state courts of Utah for violation of the insufficient funds statute of that state, Utah Code Ann., § 76-20-11 (1953) as amended, and was serving the sentence in the Utah Penitentiary when his action was instituted. The trial court held that the sentencing portion of the aforesaid statute violated the due process and equal protection of the laws provisions of the Fourteenth Amendment to the United States Constitution, and ordered the prisoners released forthwith.

2
The facts are not in dispute. The insufficient funds checks issued by the various petitioners ranged in amount from five dollars to over fifty dollars. Each prisoner was sentenced to imprisonment in the state prison for not more than five years regardless of the amount involved in the particular check transaction. The penalty provision of the statute provides that a violation "is punishable by imprisonment in the county jail for not more than one year, or in the state prison for not more than fourteen years." Although the basis for the trial court's judgment is not clear, the court appears to have thought that the statutory penalty provision fixed punishment for crimes which were misdemeanors and also those which were felonies, with no definition of either crime and no standard by which a sentencing judge could determine whether a misdemeanor or a felony had been committed. There was an implication that the statute permitted cruel and unusual punishment. The fallacy of the reasoning in regard to the definition of the offense is that in Utah any offense which "may be punishable * * * by imprisonment in the state prison" is a felony regardless of the sentence imposed. Utah Code Ann., § 76-1-13 (1953). All violations of § 76-20-11 are felonies, even though the sentencing judge may exercise his discretion and sentence the prisoner for a term in the county jail not to exceed one year. State v. Alexander, 15 Utah 2d 14, 386 P.2d 411 (1963); State v. Scott, 105 Utah 31, 140 P.2d 929 (1943). It is not uncommon for criminal statutes to define crimes affecting the property of others as felonies and to fix punishment without regard to the value of the property. For example, in Utah the penalty for any forgery, which includes bank checks, is for a period of not less than one year, nor more than twenty years. Utah Code Ann., § 76-26-4 (1953). The theft of livestock is defined as grand larceny with no reference to the value of the livestock stolen, although generally to constitute grand larceny the value of the property stolen must exceed fifty dollars. Utah Code Ann., § 76-38-4 (1953).

3
The fixing of penalties for criminal acts is a legislative function and ordinarily a sentence will not be disturbed on appeal nor considered as cruel and unusual punishment if it is within the statutory limits. Hall v. United States, 404 F.2d 1365 (10 Cir.1969); Adam v. United States, 266 F.2d 819 (10 Cir. 1959); Moore v. Aderhold, 108 F.2d 729 (10 Cir.1939).

4
The equal protection of the laws within the meaning of the Fourteenth Amendment does not require exact equality. Norvell v. Illinois, 373 U. S. 420, 83 S.Ct. 1366, 10 L.Ed.2d 456 (1963), reh. denied, 375 U.S. 870, 84 S. Ct. 27, 11 L.Ed.2d 99. It is only arbitrary and invidious discrimination that is condemned. Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10 L.Ed.2d 93 (1963). The imposition of a criminal sentence requires the exercise of judicial discretion by the sentencing judge, which includes consideration of all mitigating and aggravating circumstances relevant to the sentencing process. Identical punishment for like crimes is not required by the Fourteenth Amendment. Williams v. Oklahoma, 358 U.S. 576, 585, 79 S.Ct. 421, 3 L.Ed.2d 516 (1959), reh. denied, 359 U.S. 956, 79 S. Ct. 737, 3 L.Ed.2d 763; Williams v. New York, 337 U.S. 241, 169 S.Ct. 1079, 93 L.Ed. 1337 (1949), reh. denied, 337 U.S. 961, 69 S.Ct. 1529, 93 L.Ed. 1760, 338 U.S. 841, 70 S.Ct. 34, 94 L.Ed.2d 514. Broad discretion of the sentencing judge in many jurisdictions includes the power to impose an indeterminate sentence, together with the right to suspend sentence, or to grant probation to offenders in appropriate cases if statutory power exists.1 The exercise of this discretionary power to impose varying sentences does not deny an accused the equal protection provisions of the Fourteenth Amendment. Morrison v. Walker, 404 F.2d 1046 (9 Cir.1968); Bratton v. Sigler, 235 F.Supp. 448 (D.Neb.1964); 16A C.J.S. Constitutional Law § 564.

5
It is urged that the same sentence for all convicted of issuing insufficient funds checks, regardless of the amount thereof, is an unconstitutional discrimination even though the sentences were within the statutory limits. This is not a denial of equal protection of the laws, nor is it invidious discrimination between those charged with like crimes. "Undue leniency in one case does not transform reasonable punishment in another case to a cruel one." Howard v. Fleming, 191 U.S. 126, 136, 24 S.Ct. 49, 50, 48 L.Ed. 121 (1903). The unambiguous penalty provision of the statute under consideration applies equally to all persons and classes of persons in the State of Utah without discrimination. Every person convicted of violating the statute has an equal chance for lenience and it is not repugnant to the United States Constitution. Morrison v. Walker, supra; Smith v. Rhay, 254 F.2d 306 (9 Cir.1958); Daloia v. Rhay, 252 F.2d 768 (9 Cir.1958), cert. denied, 357 U.S. 940, 78 S.Ct. 1390, 2 L. Ed.2d 1553.

6
The several judgments are reversed and the appellees remanded to the custody of the warden in whose charge they were when released. These mandates shall issue forthwith.

Notes:

1
 The Utah statutes empower the sentencing judge to suspend sentence, grant probation or to sentence one convicted of a crime to an indeterminate sentence. Utah Code Ann., §§ 77-35-17 and 77-35-20 (1953)


503 F.2d 705
UNITED STATES of America, Appellee,v.Clyde Gene RAMEY, Appellant.
No. 73-2525.
United States Court of Appeals, Fourth Circuit.
Argued June 3, 1974.Decided Oct. 1, 1974.

Clarence W. Carter, King, N.C.  (Court-appointed counsel), for appellant.
N. Carlton Tilley, Jr., U.S. Atty., (Ronald V. Shearin, Asst. U.S. Atty., on brief), for appellee.
David Rosenberg, Cambridge, Mass., for amicus curiae Committee for Legal Research on the Draft in support of reversal of the conviction below, by leave of the court (William J. Trylor, Law School of Harvard University, Cambridge, Mass., on brief).
Before HAYNSWORTH, Chief Circuit Judge, and WINTER and CRAVEN, Circuit judges.
CRAVEN, Circuit Judge:

1
Clyde Gene Ramey appeals his convictions in a non-jury trial on two counts of a three-count indictment charging (1) that he had failed to report for an Armed Forces Physical Examination, and (2) failed to keep his local board informed of his current mailing address.1  We conclude as to the former that Ramey either substantially complied with his duty to report for his physical or, if he did not, was excused by misinformation supplied to him by a local board in California.  As to the latter, we conclude that Ramey complied with his duty to provide a current address through which mail 'may be . . . reasonably expected to come into his hands in time for compliance.'  Bartchy v. United States, 319 U.S. 484, 489, 63 S.Ct. 1206, 1208, 87 L.Ed. 1534 (1942).  We therefore reverse both convictions.

2
Ramey registered with Local Board No. 87, Dobson, North Carolina, on June 8, 1970.  Thereafter he filed with the board his Selective Service Classification Questionnaire giving his current mailing address as 713 Marshall Street, Mt. Airy, North Carolina, and designating the 'Member of the household who will always know my address' as Mamie G. Ramey, Route 5, Mt. Airy, North Carolina (July 16, 1970).  Later he changed his current mailing address to Route 5, Mt. Airy, North Carolina 27030.  To this address the Board mailed, on June 30, 1972, an Order to Report for Armed Forces Physical Examination.  The Order required that Ramey appear at 6:30 a.m. on July 18, 1972, in Dobson, North Carolina.  Instead of appearing at Dobson, North Carolina, Ramey appeared at the local board in Downey, California, on July 18, 1972.  He filled out SSS Form 6, Request for Duplicate Registration Certificate or Notice of Classification, listing as his address 8109 San Vincente, South Gate, California.  He did not indicate in the space provided whether this address was 'a permanent change of address.'  According to testimony at trial by FBI Agent Lowe, who interviewed Ramey on March 6, 1973, Ramey stated that he also attempted to obtain his physical at that time but that he was told by an employee of the board in California that he would have to return to North Carolina.2

3
Local Board 87 mailed a duplicate registration certificate to Ramey at the South Gate, California, address on August 22, 1972.  On September 6 they sent him a Current Information Questionnaire and, on September 21, an Order to Report for Induction.  The latter communication was returned on October 3, stamped 'Moved-- Address unknown' and 'Moved, left no address.'  It was then mailed to Ramey in care of Mamie Ramey, Route 5, Box 233, Mt. Airy, North Carolina, and was not returned.

4
The local board received their September 6 questionnaire on October 17.  It gave defendant's current mailing address as Prince Edward Motel, 490 Pearl, Buffalo, New York.

5
With respect to that address the government offered the testimony of FBI Agent Lowe that Ramey told the agent that during the 'short period of time' he was in Buffalo he was 'staying in the streets, mainly,' that 'he didn't have any address,' and that he sent the Prince Edward Motel address to the Board because he 'knew some people there and he felt like they might forward some mail to him if he received any.'  He did not at any time, however, check by the motel to see if mail had arrived.  Agent Lowe also stated that Ramey had 'indicated that he always received mail at his mother's home at Route 5, Mount Airy, and that any time that he wasn't there, that she would forward his mail to him.'  Transcript at 67.

6
The Board had previously recognized that this was apparently true: in a letter to Ramey's mother, the Board had noted that 'apparently you have his address, so just be sure to forward any mail that we send to him.'

7
* 32 C.F.R. 1628.8 provides:

8
(a) Any registrant who has received an Order to Report for Armed Forces Examination (SSS Form 223) and who is so far from his own local board that reporting to his own local board would be a hardship may, subject to the provisions of this section, be transferred for armed forces examination to the local board having jurisdiction of the area in which he is at that time located.

9
While Ramey's declaration that he requested a physical in California and was informed that he would have to return to North Carolina is clearly self-serving hearsay, it was offered by the government through the testimony of Agent Lowe and is uncontradicted.3  Upon it there arises the well established 'misleading information' defense.  United States v. Burton, 472 F.2d 757, 758-762 (8th Cir. 1973); United States v. Jacques, 463 F.2d 653, 657-659 (1st Cir. 1972); United States v. Timmins, 464 F.2d 385, 386-388 (9th Cir. 1972); United States v. Cordova, 454 F.2d 763, 765 (10th Cir. 1972); United States v. Burns, 431 F.2d 1070, 1074 (10th Cir. 1970); see United States v. Davis, 413 F.2d 148, 150-151 (4th Cir. 1969).

10
In the context of this case, the defense means that the government may not burden the defendant with the ignorance or indifference of its California draft board clerk.  Since Ramey presented himself to the California board on the very day he was directed to report to his local board at Dobson, North Carolina, the refusal, without reason, to grant him the benefit of the transfer regulation effectively put him in default.  Ramey was entitled to correct information and advice.  United States v. Cordova,supra, 454 F.2d at 765.  Instead, he was erroneously told, in effect, that he could not bring himself into compliance in California but must do the impossible-- get back to North Carolina the same day.  Although 32 C.F.R. 1628.8 is not self-executing, we think that where a registrant presents himself for a physical examination 3,000 miles away from his local board on the day he has been ordered to appear, and where there is no suggestion of any valid reason for denial of the transfer privilege, that a subsequent prosecution for failure to report for a physical examination cannot be sustained.

11
The government's response does not challenge the sufficiency of the 'misleading information' defense nor its applicability, given the truth of Ramey's assertions.  Instead the government relies on its assertion that Ramey has failed to establish that any such conversation occurred.  Introducing no evidence to contradict the FBI agent's narrative, the government relies solely on the presumption of regularity which attaches to administrative proceedings, citing Chaney v. United States, 406 F.2d 809, 812-814 (5th Cir.), cert. denied, 396 U.S. 867, 90 S.Ct. 128, 24 L.Ed.2d 120 (1969).

12
We do not understand the rule of evidence affording presumptive validity to administrative acts and proceedings as meaning that a government agent is presumed always to have given correct information and advice.  In Chaney, the registrant sought to infer from a clerk's ignorance of a regulation that the board itself must also have acted ignorantly and erroneously.  Quite properly it was held that the registrant must overcome the presumption that the board acted in accordance with its own rules.  406 F.2d at 813.

13
Here there is no attack upon board action or conduct.  It is not suggested that either the California or North Carolina board did anything wrong but only that Ramey was misled by the California clerk into believing he could not comply with his duty to report for a physical without returning to North Carolina.  We think there is no presumption as to what a draft board clerk may or may not have told a registrant.  This case is like Cordova, Jacques, and Burns, supra, where, as here, other evidence tended to establish the fact that the registrant contacted the board,4 and only the registrant's testimony established the substance of the conversations and provided a basis for a finding of misinformation.  Where 'nothing in the record casts doubt on the verity of the evidence . . . the testimony must be accepted.'  Cordova, supra, 454 F.2d at 765.  Having misinformed the registrant of an important procedural right the utilization of which would have brought him into compliance with its order for physical examination, the Selective Service System cannot now seek to hold him accountable for noncompliance with that order.

II
32 C.F.R. 1641.1 prescribes:

14
(a) It shall be the duty of every classified registrant until his liability for training and service has terminated, to keep his local board currently informed in writing of (1) the address where mail will reach him . . ..

15
The Supreme Court, in interpreting Section 1641.1(a)'s almost identical precursor,5 concluded:

16
The regulation, it seems to us, is satisfied when the registrant, in good faith, provides a chain of forwarding addresses by which mail, sent to the address which is furnished the board, may be by the registrant reasonably expected to come into his hands in time for compliance.

17
Bartchy v. United States, supra, 319 U.S. at 489, 63 S.Ct. at 1208.  The district judge apparently based his finding of guilt as to the third count on the fact that Ramey, while in Buffalo, New York, sent to his local board an address where he did not reside and at which he never checked for mail.6  But Ramey was not charged with supplying the Board with a false address.  Indeed, 50 U.S.C.App. 462 delineates no such offense.  All that Ramey was charged with was a failure to comply with the duty put upon him by 50 U.S.C.App. 462 and 32 C.F.R. 1641.1(a) to provide an address 'where mail will reach him.'

18
That duty was fulfilled by Ramey since the Board at all times had the address, provided by appellant, of his mother in Mt. Airy.  The evidence tends to establish that on at least one occasion-- the order to report for preinduction physical examination-- a communication mailed to this address was forwarded to Ramey in California.  In a second instance, when the notice of induction sent to the California address was returned, it was remailed to Mamie Ramey's address and was not returned.  Even though Ramey did not report for induction, nothing in the record establishes that he failed to receive the order.  Under these circumstances Bartchy's requirement of 'a chain of forwarding addresses' is met.  United States v. Chudy, 474 F.2d 1069 (9th Cir. 1973); United States v. Burton, supra; United States v. Ebey, 424 F.2d 376 (10th Cir. 1970).  See also Ward v. United States, 344 U.S. 924, 73 S.Ct. 494, 97 L.Ed. 711 (1953), rev'g per curiam 195 F.2d 441 (5th Cir. 1952).  As in Burton, supra, 'the defendant was entitled to rely on his mother's address to meet his duty of informing the board of 'the address where mail will reach him." 472 F.2d at 763.  Here that address was obviously effective for there is nothing in the record to suggest that Ramey ever failed to get any communication from his local board.

19
Moreover even though no chain of forwarding addresses is shown, if communications mailed to various addresses furnished by the registrant reach him in time for compliance there is no violation of the duty to keep the local board informed of his current address.  United States v. Ebey, supra.  'A registrant is not required to . . . report to the board every move that he makes.'  Id. at 377 of 424 F.2d; United States v. Chudy, supra.

20
We conclude that the record does not support the charge that 'there was deliberate purpose on the part of petitioner not to comply with the Selective Service Act or the regulation issued thereunder.'  Ward v. United States, supra, 344 U.S. at 924, 73 S.Ct. at 494.

21
Reversed.

1
 The first of three counts-- failure to report for induction-- was dismissed by the district judge

2
 Agent Lowe testified as follows:
Q. Continue on with what he indicated to you concerning events that transpired out in California.
A. He said that when he was in California that he had received some information that he had to report for a physical examination in Charlotte, North Carolina, and that he was in California without any money, and also about this same time had lost his draft card and went to the Local Draft Board in Vail, California, and asked about getting a physical there.  And he was told that he must return to North Carolina in order to get the physical.  And he told me he decided this was ridiculous for him to have to do that and that he had no intention of traveling back across the United States in order to get his physical.
Transcript at 67-68.

3
 We do not suggest the government was bound by its agent's testimony.  Certainly the United States Attorney could have offered evidence, e.g., the clerk of the California board, to contradict what Ramey told Agent Lowe-- if that were the truth of the matter

4
 Government Exhibit 5 shows that Ramey was present in the office of the local board in California on July 18, 1972

5
 Section 641.3 provided: 'It shall be the duty of each registrant to keep his local board advised at all times of the address where mail will reach him.'  319 U.S. at 485 n. 1, 63 S.Ct. at 1206

6
 The registrant in Bartchy also failed to check the address for mail.  In Bartchy the defendant's omission was of greater import because the board's notice was forwarded to that address.  Here, no notice was sent or forwarded to the Buffalo address


688 F.2d 849
U. S.v.Poland
81-1623
UNITED STATES COURT OF APPEALS Ninth Circuit
8/16/82

1
D.Ariz.

AFFIRMED


405 Pa. 303 (1961)
Fiore, Appellant,
v.
Fiore.
Supreme Court of Pennsylvania.
Argued September 28, 1961.
November 14, 1961.
*304 Before BELL, C.J., MUSMANNO, JONES, COHEN, EAGEN and ALPERN, JJ.
William L. Jacob, with him William L. Jacob, Jr., for appellant.
Edward L. Flaherty, Jr., with him Gregor F. Meyer, and Meyer and Flaherty, for appellee.
OPINION BY MR. JUSTICE EAGEN, November 14, 1961:
John Fiore, deceased,[1] during his lifetime executed a deed to his wife, Antoinetta Fiore, the defendant herein, conveying his interest in lands in Allegheny County. The plaintiff, a son, instituted this action in equity to obtain judicial nullification of the deed. The *305 chancellor entered an adjudication dismissing the complaint. Exceptions thereto were dismissed by the court en banc, and from the final decree in favor of the defendant, plaintiff appeals.
The deed in question was prepared by an attorney under the direction of the grantor. It was executed, witnessed and acknowledged on September 25, 1940. It was not recorded until November 27, 1957, long after the death of the grantor which occurred on September 3, 1942.
The chancellor, whose findings were confirmed by the court en banc, found as a fact that the deed was delivered by the grantor to the attorney who prepared the deed for the purpose of recording, and that at the time of said delivery the attorney was an agent for the grantee. Such a finding of fact is controlling on appeal, if supported by adequate evidence: Sterrett v. Sterrett, 401 Pa. 583, 166 A. 2d 1 (1960). The chancellor further concluded that legal delivery to the grantee had taken place and a valid title passed to the defendant. Conclusions of law are always subject to our review on appeal and also, after giving full weight to the facts found in the court below, we have the further right to make our own inferences and deductions therefrom: Pronzato v. Guerrina, 400 Pa. 521, 163 A. 2d 297 (1960).
We have examined the record carefully. It is not convincing that the attorney who prepared the deed was acting as the agent of the grantee at the time the deed was placed in his hands. More importantly, vital facts are missing necessary to establish that a legal delivery of the deed to the grantee was effected.
In order to validate defendant's claim to the ownership of the property involved there are two indispensable requisites: (1) a donative intent upon the part of the grantor, i.e., an intent to make a gift to the grantee then and there, when the deed was executed; (2) a delivery *306 of the deed to the grantee, either actual or constructive, which divested the donor of all dominion over the property and invested the donee therewith. Swartz v. Hafer, 354 Pa. 320, 47 A. 2d 224 (1946); Herr v. Bard, 355 Pa. 578, 50 A. 2d 280 (1947). The recording of the deed was not essential to its validity or the transition of the title: Mower v. Mower, 367 Pa. 325, 80 A. 2d 856 (1951). Nor was it essential that the grantee have knowledge of the transaction. By subsequent acceptance, she ratified the original delivery if such had occurred: Rynier Estate, 347 Pa. 471, 32 A. 2d 736 (1943); Pronzato v. Guerrina, supra.
However, there must have been a delivery of the instrument to the grantee and while the execution, sealing, acknowledging and recording of a deed gives rise to a presumption of delivery, this is a factual presumption and as such, is rebuttable: Chambley v. Rumbaugh, 333 Pa. 319, 5 A. 2d 171 (1939); Cray Estate, 353 Pa. 25, 44 A. 2d 286 (1945).
For a legal delivery to be effected, it is not necessary that the deed be delivered directly to the grantee. It may be placed in the possession of a third party for delivery to the grantee upon the happening of a specified contingency. In such cases, the legal delivery date is that when the donor effectuated his intention: Rynier Estate, supra; Pronzato v. Guerrina, supra; Hartman's Estate (No. 2), 320 Pa. 331, 182 Atl. 232 (1936); Wagoner's Estate, 174 Pa. 558, 34 Atl. 114 (1896). However, delivery is not accomplished by the mere handing of the executed deed to a stranger. Likewise, the mere handing of the executed deed, without more, to a third person who is an agent of the grantee is ineffective. In order for the delivery to be effectual and to result in a culmination of the transition of the title, there must be an express and definite instruction that the deed is to be given to the grantee then or at some future time: Swartz v. Hafer, supra; Rynier Estate, supra; *307 Lewis v. Merryman, 271 Pa. 255, 114 Atl. 655 (1921); Sears v. Scranton Trust Co., 228 Pa. 126, 77 Atl. 423 (1910); Stewart's Estate, 309 Pa. 204, 163 Atl. 754 (1932).
Let us examine the facts with these principles of law in mind.
The attorney, who prepared the deed, testified that he did so at the personal request of the grantor for the purpose of conveying title to the wife. The wife-grantee was not present and had no inkling of the transaction until more than seventeen years later. In recalling the details of the transaction, the attorney did not testify that he received from the grantor any instructions to deliver the deed to the grantee then, or at any time in the future. Nor did he say that he received instructions to record it, or that he received any directions to make known the existence of the deed to the grantee. On the other hand, he did say that it was his impression that the deed was under the control of the grantor at all times while he lived, and that if the grantor had requested its return or destruction, he would have complied with the request. While it may be argued that this merely represents the conception of the attorney as to the legal effect of the deed, and that his duty would be measured not by what he thought but rather by what the law required him to do (See, Rynier Estate, supra), still it is important testimony in determining whether or not the grantor intended to completely divest himself of ownership of the property on the occasion involved.
As noted before, the deed was not recorded for more than seventeen years after its execution and more than fifteen years subsequent to the grantor's death. The attorney explains this fact by saying "that probably[2] it should have been recorded years before" and that at *308 the time of the execution of the deed the property was so heavily encumbered, that the recording would have been an "idle gesture." In the meantime, the deed became lost and finally in November 1957 was rediscovered, and recorded after the attorney notified the grantee of its existence and collected $200 for his services.
Further facts in the record shed light upon the truth. Following the execution of the deed, the grantor continued his complete control over the property until his death. At no time did he tell the grantee in the deed, or any members of his family, that he had deeded over his interest to the defendant. He made no inquiry to see if the deed had been recorded or effort to accomplish such. Following the grantor's death, the plaintiff, a son, assumed full responsibility of clearing up serious clouds existing on the title and of maintaining the property over the years. He secured a quit claim deed in favor of the heirs of his deceased father from a Tennessee corporation, which apparently owned an undivided one-half interest in the property as evidenced by the records of the recorder of deeds. He resisted foreclosure against the property on an existing recorded mortgage, caused an investigation resulting in the disclosure that the mortgage had been overpaid, and obtained the payment of a refund to the estate of his father in the sum of $2000.
It, therefore, seems clear to us that when the deed in question was executed, the grantor did not intend to vest title then and there in the grantee, and that the evidence is of sufficient quality to overcome the presumption of delivery.
Decree reversed. The court below is directed to enter a decree consonant with this opinion. Costs to be divided between the parties.
NOTES
[1]  He died intestate leaving his widow and four children surviving.
[2]  Emphasis, ours.