People v. Gorgol

• Decision Date: 28 December 1953
• Docket Number: Cr. 2921
• Parties: PEOPLE v. GORGOL
• Court: California Court of Appeals Court of Appeals

Page 69

265 P.2d 69

122 Cal.App.2d 281

PEOPLE v. GORGOL

Cr. 2921.

District Court of Appeal, First District, Division 1, California.

Dec. 28, 1953.

Hearing Denied Jan. 27, 1954.

Marvin E. Lewis, San Francisco, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Charles E. McClung, Deputy Atty. Gen., for respondent.

BRAY, Justice.

Defendant was charged with (count I) violation of section 211, Penal Code, robbery, and (count II) violation of section 217, Penal Code, assault with intent to commit murder. A jury found him guilty of the robbery charge, determined to be first degree, and of assault with a deadly weapon, an offense included within the count II charge. Defendant appeals from the judgment of conviction and from an order denying a new trial.

Questions Presented.

1. Were plaintiff's exhibits 8 and 9 (certain portions of the hospital records) admissible under sections 1953e to 1953h, Code of Civil Procedure (Uniform Business Records as Evidence Act)?

2. Was evidence of defendant's financial condition admissible?

3. Alleged error in striking answer of witness Quigg.

4. Alleged improper cross-examination of defendant's character witnesses.

5. Alleged misconduct of the district attorney.

6. Refusal of instruction on misfortune.

7. Alleged abuse of discretion in denying new trial.

Evidence.

Defendant originally pleaded not guilty and not guilty by reason of insanity. Prior to trial the court appointed two alienists to examine defendant as to 'his insanity.' Their report found him sane. After conviction defendant withdrew his plea of not guilty by reason of insanity. At the trial the main issue was defendant's mental state at the time of the alleged crimes, defendant attempting to prove a mental state covering complete blackout, irresistible impulse, and lack of specific intent. While, of course, we must take the evidence and the reasonable inferences therefrom most favorable to the verdicts, it is advisable, to get the feel of the case, to set forth the factual evidence as it came to the jury. Most of the evidence concerned defendant's mental state. The reporter's transcript contains 1475 pages, of which 98 pages covered plaintiff's case in chief.

Joseph H. Falkowich, a taxi driver, testified that he was hailed by defendant in the San Francisco Presidio at the bus station at approximately 11:45 p. m. Defendant was wearing his United States Army captain's uniform on which there were rows of ribbons. Defendant asked to be taken to the 2500 block on Webster Street on top of the hill. Defendant got into the front seat. There was no conversation. When the cab neared the designated block defendant said to pull in. The driver did so and on reaching over to clear the meter noticed defendant holding a revolver on his lap in his right hand, pointed at the driver. Defendant then stated, 'I hate to do this,' but that he wanted some money. The driver gave defendant all the money he had, $25. Defendant took the money in his left hand, still holding the gun in his right. Defendant appeared to not want to get out of the cab so the driver asked either that defendant get out or let him get out. Defendant then said, 'You won't get hurt, just go to the corner and turn right.' Defendant said that probably the radio was on and the taxicab people would know that the driver was being held up. The driver assured him there was no radio in the car. The driver started up the car and from then on kept begging defendant not to harm him but let him 'take off' as he had a wife and two children. Defendant said nothing except to tell the driver to turn to the right when they got to the corner and then to pull in to the curb when they neared Fillmore Street. The cab stopped. Defendant just sat looking at the driver who was trying to convince defendant to let him go. Finally defendant stated, 'I am sorry. I will have to put you to sleep.' All this time the gun was held by defendant in his lap. The gun then went off. The driver, thinking himself shot, opened the door and ran. He saw a car coming. He ran in front of it. When it stopped he told its driver he had been shot and asked to be taken to a hospital. While getting in this car, he noticed that defendant was now on the driver's side outside the cab opening the door to get into the driver's seat. At the hospital it was found that the bullet pierced the driver's sweater and shirt pocket but had lodged in a cigarette lighter in his shirt pocket. Other than a bruise, he was not hurt.

Plaintiff's next witness was John Quigg, an agent of the Sixth Army, Criminal Investigation Division. The next morning after the shooting he found a revolver hidden under the cover in a drainage ditch located about 10 feet from defendant's room at Letterman General Hospital. It contained five live bullets and an empty cartridge. That afternoon defendant was placed in a line-up with four other captains, all dressed in the same manner as defendant (defendant had taken all his ribbons off his coat that morning). Falkowich identified defendant as the one who had shot him. Lieutenant Lee of the San Francisco Police Department questioned defendant in Quigg's presence. Defendant denied committing the crimes, stating that the evening before he had been to a show, returned to his room, then went out for a cup of coffee and returned. Defendant knew nothing whatever about the incident in question. He stated he owned a revolver which was in his clothing locker at the hospital. When Lee informed him his gun had been found and that his story appeared to have certain loopholes, defendant changed his story. He stated that he had hailed the cab, got in and told the driver he wanted to go to the 2500 Webster Street block; that 'he pulled a gun from beneath his coat and asked the cabbie for his money, and that the cabbie kept whimpering and whining about the situation; that finally he told the cabbie he was going to have to put him to sleep. He said that the next thing he knew he had shot the cabbie, and that he got out of the cab and ran, so did the cabbie * * * and decided that he had better get out of there as fast as he could,' so he got into the cab, drove towards the Presidio and left it. On the way to his room he hid the gun in what he called a culvert.

Lieutenant Lee then testified substantially as did Quigg. In more detail, he gave what defendant stated were his movements the preceding night. Even after Lee told defendant of evidence against him he still insisted his statement was correct; also he had not seen his gun for some time but believed it to be in his locker. When told that Lee had the gun and would have a ballistics test made to see if a test shot would compare with the bullet recovered from the driver, defendant then said, 'Yes, I robbed him and I shot him.' He further stated that after he had gotten the money from the driver, the latter was doing a lot of whining, pleading and crying, and 'I said to him, 'I will have to put you to sleep' * * * then I shot him.'

Plaintiff then called a police stenographer who read a statement taken from defendant the afternoon following the shooting at the office of the robbery detail. Defendant stated that about 11:30 p. m. he dressed and left his room to get a cup of coffee. He met some M. P.s, talked to them, 'got restless and went back and got the gun' from a culvert in back of the ward. He flagged a taxi, telling the driver to drive him to the top of the hill on Webster Street, the 2500 block. When they stopped there, was when he drew the gun. The driver 'surrendered' the money. Defendant made no demands. The driver saw the gun when he leaned over to switch off the meter. Defendant had the gun pointing at the driver. The latter was pleading, requesting defendant to let him go. He had a wife and family. Defendant told him to start driving again, then to turn right. The driver was afraid defendant was going to do him bodily harm. Defendant told him to pull in to the curb. The driver continued his plea. 'To gain sufficient time to get him out of there, I told him I was going to put him to sleep for a little while * * * I meant to hit him. He turned to the right and backed into the corner of the seat * * * I don't know whether he moved or whether I moved or what, but I shot.' The driver went out the left door, defendant out the right. The driver ran to the rear, calling for the police. Defendant ran to the front. As he reached the corner a car came towards him. He ran back to the taxi, pushed it to the corner, got in and drove it to about a block from the hospital. On his way to his room, defendant ditched the gun in the culvert. When asked how much money the driver gave him defendant said 'He handed me a wad. I counted it later. It consisted of two fives, and fifteen one dollar bills.' Ten one dollar bills defendant put in his shaving kit. The other bills he put in his pocket. The gun would not work on double action but would on single action. He concealed it in the culvert because it was contrary to hospital regulations to have it. 'Q. Why did you come back and get the gun? A. I don't know. The same reason why I couldn't stay in the ward in the first place. Worried and couldn't sleep. Worried about money matters. Q. What was your motive in getting the gun from the culvert? A. To go out and get money. Q. By robbery? A. If necessary, yes.' Plaintiff rested.

Defendant was his own first witness. He testified at length about physical injuries, particularly to his head, which he had received during and since childhood, his fondness for guns and hunting, his army service and experience, particularly his work as a night fighter during hostilities, the circumstances under which he received his many medals, the many times he had suddenly become unconscious (blacked out), the wounds he had received, and the number of hospitals he had been in. Although he had a severe headache condition for many years, it was in March, 1951, that ...