In re McCartney, 415 P.2d 782 (Cal. 1966). · Go Syfert
Search
In re McCartney, 415 P.2d 782 (Cal. 1966). Cases Citing This Book View Copy Cite
G Cite
cited 2× by 1 distinct case, last quoted 1982 · …an indictment, by operation of law for murder, is also an indictment for manslaughter, and every less offense that may be included under the charge of murder, just as much as though it were charged in distinct and separate counts. at p. 831 ⚠ not in text
107 citation events (13 in the last 25 years) across 6 distinct courts.
Treatment trajectory · 1968 → 2026 · click a year to view as-of
1968 1997 2026
Top citers, strongest first. 17 distinct citers. How cited ↗
discussed Cited as authority (rule) People v. Sanchez (2×)
Cal. · 2001 · confidence medium
The distinguishing feature is that murder includes, but manslaughter lacks, the element of malice.” (People v. Rios (2000) 23 Cal.4th 450, 460 [ 97 Cal.Rptr.2d 512 , 2 P.3d 1066 ].) We also have stated: “It has long been the law that a ‘charge of murder includes by implication a charge of the lesser degree of murder as well as voluntary and involuntary manslaughter.’ [Citations.]” (People v. Thomas (1987) 43 Cal.3d 818, 824 [ 239 Cal.Rptr. 307 , 740 P.2d 419 ]; see People v. Breverman, supra, 19 Cal.4th at p. 154 ; Stone v. Superior Court (1982) 31 Cal.3d 503, 517 [ 183 Cal.Rptr. 647…
discussed Cited as authority (rule) People v. Cam Thach Thi Le
Cal. Ct. App. · 2000 · confidence medium
(See, e.g., People v. Chadd (1981) 28 Cal.3d 739, 758 [ 170 Cal.Rptr. 798 , 621 P.2d 837 ]; In re McCartney (1966) 64 Cal.2d 830, 832 [ 51 Cal.Rptr. 894 , 415 P.2d 782 ]; People v. Guiterrez, supra, 232 Cal.App.3d at p. 1642 ; People v. Posten, supra, 108 Cal.App.3d at pp. 648-649; People v. Lewis, supra, 180 Cal.App.3d at pp. 821-822; People v. Park (1978) 87 Cal.App.3d 550, 571-572 [ 151 Cal.Rptr. 146 ]; People v. Morgan (1977) 75 Cal.App.3d 32, 40-41 [ 141 Cal.Rptr. 863 ]; People v. Rose (1972) 28 Cal.App.3d 415, 417-418 [ 104 Cal.Rptr. 702 ]; but see In re Demillo (1975) 14 Cal.3d 598, 601…
discussed Cited as authority (rule) People v. Prettyman (2×)
Cal. · 1996 · confidence medium
(People v. Edwards (1985) 39 Cal.3d 107, 116, fn. 10 [ 216 Cal.Rptr. 397 , 702 P.2d 555 ]; In re McCartney (1966) 64 Cal.2d 830, 831 [ 51 Cal.Rptr. 894 , 415 P.2d 782 ].) In this case, there was no evidence that as to codefendant Prettyman, the offense was less than the charged crime of murder; as to Prettyman, therefore, the trial court had no duty to instruct the jury, sua sponte, on involuntary manslaughter.
discussed Cited as authority (rule) People v. Hooper
Cal. Ct. App. · 1986 · confidence medium
Since involuntary manslaughter is ordinarily deemed a lesser included offense of murder (see, e.g., People v. Edwards (1985) 39 Cal.3d 107, 116-117, fn. 10 [ 216 Cal.Rptr. 397 , 702 P.2d 555 ]; In re McCartney (1966) 64 Cal.2d 830, 831 [ 51 Cal.Rptr. 894 , 415 P.2d 782 ]), by analogy we conclude that unlawfully causing a fire is a lesser included offense of arson.
discussed Cited as authority (rule) People v. Edwards (2×)
Cal. · 1985 · confidence medium
Nonetheless, under the facts of this case, defendant was entitled to an instruction on involuntary manslaughter and the trial court was presented with both sufficient evidence and sufficient authority to support defendant's request. [10] Even in the absence of a request, the trial court has a duty to instruct sua sponte on offenses necessarily included in the charged offense if there is sufficient evidence to support a conviction of the lesser included offense. ( People v. Wickersham (1982) 32 Cal.3d 307, 323-325 [ 185 Cal. Rptr. 436 , 650 P.2d 311 ].) Although, ordinarily, involuntary manslau…
discussed Cited as authority (rule) People v. Watson
Cal. Ct. App. · 1983 · confidence medium
(Stone v. Superior Court (1982) 31 Cal.3d 503, 517 [ 183 Cal.Rptr. 647, 646 , P. 2d 809]; In re McCartney (1966) 64 Cal.2d 830, 831 [ 51 Cal.Rptr. 894 , 415 P.2d 782 ]; People v. McManis (1972) 26 Cal.App.3d 608, 614 [ 102 Cal.Rptr. 889 ].) Nonetheless, although murder can be committed using a vehicle as the instrument (see, e.g., People v. Watson, supra, 30 Cal.3d 290 ), the definition of involuntary manslaughter in subdivision 2 of section 192 specifically excludes homicides committed by means of a vehicle.
discussed Cited as authority (rule) Stone v. Superior Court (2×)
Cal. · 1982 · confidence medium
Thus, a charge of murder includes by implication a charge of the lesser degree of murder as well as voluntary and involuntary manslaughter. (§ 1159; In re McCartney (1966) 64 Cal.2d 830, 831 [ 51 Cal. Rptr. 894 , 415 P.2d 782 ]; People v. Gilmore, supra, 4 Cal. 376, 380 .) As the court stated in Gilmore ( 4 Cal. at p. 380 ), "An indictment, by operation of law for murder, is also an indictment for manslaughter, and every less offense that may be included under the charge of murder, just as much as though it were charged in distinct and separate counts. " (Italics added.) When a prosecutor cho…
discussed Cited as authority (rule) People v. Morgan
Cal. Ct. App. · 1977 · confidence medium
(In re McCartney (1966) 64 Cal.2d 830, 831 [ 51 Cal.Rptr. 894 , 415 P.2d 782 ]; People v. Carmen (1951) 36 Cal.2d 768, 773 [ 288 P.2d 281 ].) The information shows on its face that the *37 charge of involuntaiy manslaughter was barred by the statute of limitations.
discussed Cited as authority (rule) People v. Heffington
Cal. Ct. App. · 1973 · confidence medium
(In re McCartney, 64 Cal.2d 830, 831 [ 51 Cal.Rptr. 894 , 415 P.2d 782 ].) A jury may find the defendant guilty of any offenses necessarily included in the crime with which he is charged, or of an attempt to commit the offense.
cited Cited as authority (rule) People v. Rose
Cal. Ct. App. · 1972 · confidence medium
Code, § 1009; In re McCartney, 64 Cal.2d 830, 832 [ 51 Cal.Rptr. 894 , 415 P.2d 782 ].) 4 The judgment is reversed.
discussed Cited as authority (rule) People v. Doolittle
Cal. Ct. App. · 1972 · confidence medium
(Gomez v. Superior Court, 50 Cal.2d 640, 643-647 [ 328 P.2d 976 ]; In re McCartney, 64 Cal.2d 830, 831 [ 51 Cal.Rptr. 894 , 415 P.2d 782 ]; People v. Lewis, 186 Cal.App.2d 585, 596 [ 9 Cal.Rptr. 263 ].) 4 Former section 1118 of the Penal Code was repealed in 1967. 5 Under this rationale a conviction of second degree murder is an acquittal of first degree murder and a conviction of manslaughter is an acquittal of second degree murder.
discussed Cited as authority (rule) People v. Stearns (2×)
Cal. Ct. App. · 1971 · confidence medium
Cir.1969) 408 F.2d 1287, 1289-1290 .) For the present we merely reiterate what was suggested in Wade relative to the purpose underlying the rule: the presence of counsel at a lineup is required in the absence of other suitable protective measures `to preserve the defendant's basic right to a fair trial as affected by his right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself.' (388 U.S. at p. 227 [18 L.Ed.2d at p. 1157].) We assume that counsel's function and role at the lineup itself will be determined in future cases with…
discussed Cited as authority (rule) People v. Asher
Cal. Ct. App. · 1969 · confidence medium
Code, §§ 1159 and 1093, subd. 6; People v. Modesto, supra, 59 Cal.2d 722, 727 ; People v. Miller, supra, 57 Cal.2d 821, 829-830 ; People v. Dewberry, supra, 51 Cal.2d 548, 555 ; People v. Carmen, supra, 36 Cal.2d 768, 773 ; People v. Coyne, supra, 263 Cal.App.2d 445, 450-451 ; People v. Garcia (1967) 250 Cal.App.2d 15, 17 [ 58 Cal.Rptr. 186 ]; People v. Roth, supra, 228 Cal.App.2d 522, 527-531 [ 39 Cal.Rptr. 582 ]; and People v. Lewis (1960) 186 Cal.App.2d 585, 596-599 [ 9 Cal.Rptr. 263 ].) “An indictment or information charging murder . . . also charges all lesser offenses necessarily inc…
discussed Cited as authority (rule) People v. Terry
Cal. · 1969 · confidence medium
(Cf. In re McCartney, 64 Cal.2d 830, 832 [ 51 Cal.Rptr. 894 , 415 P.2d 782 ].) Defendant contends that the bank teller’s identification testimony was inadmissible because he had first identified defendant at a lineup, conducted after defendant was charged with murder and while he was deprived of the assistance of counsel.
discussed Cited as authority (rule) People v. Lilliock
Cal. Ct. App. · 1968 · signal: cf. · confidence medium
Code, § 800; cf. In re McCartney (1966) 64 Cal.2d 830, 832 [ 51 Cal.Rptr. 894 , 415 P.2d 782 ].) Had the jury returned a verdict finding defendant guilty of manslaughter, the court would have had to set the defendant free. 5 This took place on April 7, 1966, prior to the Evidence Code coming into force on January 1, 1967.
discussed Cited "see" Karen v. California (2×)
SCOTUS · 1976 · signal: see · confidence high
See People v. McFarlane, 138 Cal. 481 , 71 P. 568 (1903), cited in In re McCartney, 64 Cal. 2d 830 , 415 P. 2d 782 (1966).
examined Cited "see, e.g." People v. Thomas (3×)
Cal. · 1987 · signal: see also · confidence medium
It has long been the law that a “charge of murder includes by implication a charge of the lesser degree of murder as well as voluntary and involuntary manslaughter.” (Stone v. Superior Court (1982) 31 Cal.3d 503, 517 [ 183 Cal.Rptr. 647 , 646 P.2d 809 ]; see also In re McCartney (1966) 64 Cal.2d 830, 831 [ 51 Cal.Rptr. 894 , 415 P.2d 782 ]; People v. Gilmore (1854) 4 Cal. 376, 380 .) A necessary corollary of this rule is that a charge of manslaughter, that is, an unlawful killing of a human being without malice, charges both voluntary and involuntary manslaughter.
Retrieving the full opinion text from the archive…
In re MARGARET LOUISE McCARTNEY on Habeas Corpus
Crim. No. 9944.
California Supreme Court.
Jul 7, 1966.
415 P.2d 782
Joseph W. Fairfield and Ethelyn F. Black for Petitioner., Evelle J. Younger, District Attorney, Harold J. Ackerman, Chief Deputy District Attorney, Harry Wood, Robert Lord and Harry B. Sondheim, Deputy District Attorneys, for Respondent.
Burke, McComb, Peek, Peters, Tobriner, Traynor, White.
Cited by 36 opinions  |  Published
TRAYNOR, C. J.

-Petitioner seeks a writ of habeas corpus on the ground that her pending trial in the Superior Court of Los Angeles County is barred by the prohibition against double jeopardy and by the statute of limitations. (Cal. Const., art. I, § 13; Pen. Code, § 800.)

On November 14, 1961, the District Attorney of Los Angeles County filed an information in the superior court charging that petitioner committed murder on or about October 23, 1961. (Pen. Code, § 187.) She was convicted of second degree murder in a jury trial, but her conviction was reversed on appeal. (People v. McCartney, 222 Cal.App.2d 461 [35 Cal.Rptr. 256].) On retrial she was convicted of voluntary manslaughter (Pen. Code, § 192), but this conviction was also reversed. (People v. McCartney, nonpublished opinion, District Court of Appeal, 2 Crim. 10410, Sept. 16, 1965.)

Petitioner’s third trial was set for January 19, 1966. At that time she moved that the information be dismissed, contending that her conviction of manslaughter was an acquittal of the charged murder and that the information could not be amended to charge manslaughter because the statute of limitations for manslaughter had run. The trial court denied her motion, but to avoid a possibly needless retrial granted a continuance while she sought relief on habeas corpus.

Petitioner’s conviction of second degree murder at her first trial was an acquittal of first degree murder, and her conviction of manslaughter at her second trial was an acquittal of second degree murder. (Gomez v. Superior Court, 50 Cal.2d 640, 643-647 [328 P.2d 976].) An indictment or information charging murder, however, also charges all lesser offenses necessarily included in the crime of murder, including voluntary and involuntary manslaughter. (Pen. Code, § 1159; People v. McFarlane, 138 Cal. 481, 484 [71 P. 568, 72 P. 48, 61 L.R.A. 245]; People v. Smith, 134 Cal. 453, 454-455 [66 P. 669].) Accordingly, a defendant who has been charged with[*832] murder, convicted of manslaughter and had his conviction reversed on appeal may be retried for manslaughter on the original indictment or information. (People v. McFarlane, supra, 138 Cal. 481, 484; People v. Smith, supra, 134 Cal. 453, 454-455.)

It is of no significance that the three-year period of the statute of limitations for manslaughter (Pen. Code, § 800) has now run. Had the information charging murder been filed after the three-year period, the statute would bar a conviction for manslaughter. (People v. Stevens, 5 Cal.2d 92, 99 [53 P.2d 133]; People v. Miller, 12 Cal. 291, 294-295; People v. Angelo, 24 Cal.App.2d 626, 628 [75 P.2d 614]; People v. Meyers, 39 Cal.App. 244, 245 [178 P. 965].) Since the information was filed before the three-year period had run, however, a manslaughter conviction is not barred. (People v. Brooks, 50 Cal.App.2d 610, 611 [123 P.2d 556].) Petitioner may be tried under the original information or she may move to have the information amended to reflect the fact that she can now be convicted of no higher offense than manslaughter. In any event, the jury will be instructed that manslaughter is the greatest offense for which she can be convicted. (People v. McFarlane, supra, 138 Cal. 481, 485.)

The order to show cause is discharged, and the petition for a writ of habeas corpus is denied.

McComb, J., Peters, J., Tobriner, J., Peek, J., Burke, J., and White, J.,* concurred.