People v. Gorshen, Cr. 6310

CourtUnited States State Supreme Court (California)
Citation51 Cal.2d 716,336 P.2d 492
Docket NumberCr. 6310
PartiesPEOPLE of State of California, Respondent, v. Nicholas GORSHEN, Appellant.
Decision Date11 March 1959

Garry, Dreyfus, McTernan & Keller, Benjamin Dreyfus and Charles R. Garry, San Francisco, for appellant.

George C. Olshausen, San Francisco, as amicus curiae on behalf of appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Chief Asst. Atty. Gen., and Victor Griffith, Deputy Atty. Gen., for respondent.

SCHAUER, Justice.

Defendant pleaded not guilty to a charge of murder. Trial by jury was waived (as authorized by Cal.Const., art. I, § 7) and the court (see Pen.code, § 1167) found defendant guilty of second degree murder. Defendant appeals from the ensuing judgment. He urges that uncontradicted psychiatric testimony, accepted by the trial court, establishes that defendant did not intend to take human life or, at least, that he did not act with malice aforethought, and that therefore he should be acquitted or, as a minimum of relief, that the offense should be reduced to manslaughter. We have concluded: (1) that the evidence as to the objective circumstances of the killing supports all findings essentially implied by the judgment; (2) that the record does not support defendant's position that the trial court believed the evidence that defendant did not have the state of mind which was required as an element of second degree murder yet found defendant guilty of that crime; and (3) that, accordingly, the judgment should be affirmed.

Defendant, a longshoreman, shot and killed his foreman, Joseph O'Leary, at about 2:30 a. m. on March 9, 1957. The record discloses the following events leading up to the homicide: At 5 p. m. on March 8 defendant reported to the dispatching hall. Between 6 and 7 o'clock he and a fellow worker ate and consumed a fifth of a gallon of sloe gin. Defendant worked until 11 p. m. Between 11 and 12 o'clock defendant and the fellow worker ate and consumed a pint of sloe gin. Shortly after 12 midnight O'Leary saw defendant standing on the deck of the ship drinking a glass of coffee. O'Leary told defendant to go to work. Defendant threw the glass to the deck, exchanged 'a few words' with O'Leary, and went to work. Thereafter O'Leary told defendant that he was drunk and was not doing his work properly and directed defendant to go home. They argued, defendant spat in O'Leary's face, and O'Leary knocked defendant down and kicked him. At the request of other workers O'Leary walked away from defendant. Defendant threw a piece of dunnage and brandished a carton at O'Leary.

Paul Baker, a 'walking boss,' took defendant to a hospital. Defendant was bleeding and bruised; his left eye was swollen shut and a deep cut under it required five or six stitches. Defendant was discharged at 1:45 a. m. The hospital records bear the notation, 'Alcoholic Breath.' As Baker drove defendant back to the pier where they worked, defendant said 'that he was going to go home and get a gun and kill this fellow.'

When he reached the pier defendant said that he wished to return to work but his superiors insisted that he go home. Defendant said, 'I'll go home and get my gun. I'll come back and take care of him.' Defendant drove to his home, got a .25 caliber automatic pistol which contained two bullets, fired one shot in his living room, put the gun in his apron, and drove back to the pier. He arrived there about 30 minutes after he had been sent home and went onto the ship looking for O'Leary.

O'Leary and Nelson, a union business agent, had followed defendant to his house and, when they saw defendant leave his house, had driven to a police station. Police officers went to the pier. They searched defendant but did not find his gun. Defendant told the officers that he 'had a fight with Mr. O' Leary, and * * * that he couldn't forget about the eye that he had obtained during the fight.' One of the officers described defendant as 'angry,' 'almost tearsome,' 'emotional,' but not incoherent or boisterous.

O'Leary and Nelson then appeared. Defendant said, 'My buddy. Hah, my buddy,' and produced the gun. O'Leary shouted, 'Look out, he's got the gun.' Defendant shot. The single bullet entered O'Leary's abdomen, killing him; it also wounded Nelson's arm. 1 The officers subdued defendant after a brief struggle. Defendant told the authorities, shortly after the homicide, that O'Leary was 'looking at me, smiling, so I just let him have it. * * * Nelson was standing by; I had to take chance to hit him, because I had only one bullet.'

Defendant had a very good reputation for peace and quiet and did not usually drink to excess. He testified as follows: During the 15 years he had known O'Leary prior to the night of the homicide they had been friends and had had no trouble. Defendant's recollection of the events of that night was 'kind of Hazy.' He considered it unfair of O'Leary to order him to go home but to retain the fellow worker with whom defendant had been drinking. 'The argument starts about he wants me to go home and I * * * tell him that I intend to wait until business agent comes in, so apparently he, he hit me and knocked me off, off the floor and when I jumped up, he got on and hit me again, and that's then I tried to defend myself. I, I didn't hit him * * *; he was apparently too fast for me or stronger, bigger.' Defendant did not recall throwing a piece of dunnage or brandishing a carton or threatening to go home and get a gun. When he discharged the gun in his home, 'I didn't know it was on the safety or not, I was shaky, I didn't know what I was doing.' Defendant recalled little of his return to the pier, but did recall that the police searched him. Then he saw O'Leary 'grinning, looking at me. I don't know what, what become of me. I just grabbed the gun and shot.'

Dr. Bernard L. Diamond, a psychiatrist who examined defendant, testified as follows: 2

After described examinations and tests of defendant, the doctor concluded that defendant suffers from chronic paranoiac schizophrenia, a disintegration of mind and personality. For 20 years defendant has had trances during which he hears voices and experiences visions, particularly of devils in disguise committing abnormal sexual acts, sometimes upon defendant. Defendant recognizes that these experiences are 'not real' but believes that they are forced upon him by the devil. Apparently defendant, prior to his examination by Dr. Diamond, had not disclosed these experiences to anyone.

A year before the shooting defendant (who was 56 years of age at the time of trial) became concerned about loss of sexual power. With this concern his sexual hallucinations occurred with increased frequency and his ability in his work became increasingly important to him as a proof of manhood.

On the night of the shooting, O'Leary's statement that defendant was drunk and should leave his work was to defendant the psychological equivalent of the statement that 'You're not a man, you're impotent, * * * you're a sexual pervert.' Then, according to defendant's statements to Dr. Diamond, O'Leary applied to defendant an epithet which indicated sexual perversion. At this point, according to Dr. Diamond's opinion, defendant was confronted with 'the imminent possibility of complete loss of his sanity. * * * (A)s an alternate to total disintegration * * *, it's possible for * * * an individual of this kind, to develop an obsessive murderous rage, an unappeasable anger * * *. The strength of this obsessions is proportioned not to the reality danger but to the danger of the insanity * * *. (F)or this man to go insane, means to be permanently in the world of these visions and under the influence of the devil. * * * (A)n individual in this state of crisis will do anything to avoid the threatened insanity, and it's this element which lends strength to his compulsive behavior so that he could think of nothing else but to get O'Leary, so he went home and got the gun and shot him; and (as) is usually the case in this type of event, the shooting itself released the danger of (defendant's complete mental disintegration).'

Defendant told Dr. Diamond that from the time he was taken to the emergency hospital until the time of the shooting 'That is all i was thinking about all of this time is to shoot O'Leary. I forgot about my family, I forgot about God's laws and human's laws and everything else. The only thing was to get that guy, get that guy, get that guy, like a hammer in the head.'

In the opinion of the doctor, defendant acted almost as an automaton; 'even the fact that policemen were right at his elbow and there was no possibility of getting away with this, still it couldn't stop the train of obsessive thoughts which resulted in the killing * * *. (H)e did not have the mental state which is required for malice aforethought or premeditation or anything which implies intention, deliberation or premeditation.'

Dr. Diamond quoted section 188 of the Penal Code, which provides that the 'malice aforethought' which is an essential element of murder 'may be express or implied. It is express when there is manifested a deliberated intention unlawfully to take away the life of a fellow-creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.' He then gave his opinion of the 'medical essence' of 'malice aforethought'; i. e., 'whether an individual performs an act as a result of his own free will or intentionality, or * * * whether the action is directly attributable to some abnormal compulsion or force, or symptom or diseased process from within the individual.' 3

The doctor further explained that in his opinion 'actions, like the threat to kill, the going home to get the gun and so forth' actions which 'in an ordinary individual' would be evidence 'that he intended to do what he did do, and that this was an act of free will and...

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