Vicarious Murder

When the two robbers entered a liquor store in Oakland, Calif., they did not see Linda West, wife of the owner, who was standing on a ladder checking the stock. As she watched. John Smith started waving a gun at her husband, and James Daniels nervously warned, "Don't move or we'll have an execution right here." Mrs. West calmly drew the pistol she was carrying and started shooting. Smith was killed, Daniels badly wounded.

Was Mrs. West legally responsible for Smith's death? Hardly. In the eyes of the law, the proper defendants in the killing were the victim's buddies -not only the wounded Daniels, but also Alvin Taylor, who, according to police, was sitting outside in the getaway car.

In a fascinating example of legal logic, the California Supreme Court has just ruled, by a vote of 4 to 3, that Taylor can be tried for his friend's murder. Because Taylor was an accomplice, he was liable for any act of his co-conspirators that furthered their criminal purpose. It was possible to conclude, said the justices, that Smith's jumpy behavior was likely to cause a death -namely, his own. And, since Taylor was legally responsible for Smith's actions, he was "vicariously responsible" for provoking Smith's death.

Necessary Addition. The knottiest point for the justices was an earlier California Supreme Court decision that simply pointing a gun at someone is not "sufficiently provocative of lethal resistance" to support a charge of murder against surviving accomplices when the gun wielder is killed. Thus the issue in this case was whether the murder charge against Taylor could be justified by something his buddies did to incite Mrs. West that was even more provocative than waving a gun. According to the court majority, the verbal threat of "execution" and the agitated demeanor of the gunmen provided the necessary additional provocation. To the dissenters, this distinction seemed "absurd." They insisted that a verbal threat to use a drawn gun is redundant.

In theory, the majority's rarefied reasoning might possibly apply even to Angela Davis among others. Accused of aiding and abetting the kidnap-murder of Judge Harold Haley near San Francisco four months ago, she has already been charged with conspiracy and murder in the judge's death, and the prosecution is likely to stick with that relatively straightforward charge alone. But under the logic leading to the Taylor decision, it is at least conceivable that Angela Davis could also be charged with the murder of the three kidnapers, who drove their getaway truck toward a roadblock, provoking their own deaths in a hail of police bullets.

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