People v. McGarry

• Decision Date: 01 March 1954
• Citation: 267 P.2d 254,42 Cal.2d 429
• Court: California Supreme Court
• Parties: PEOPLE v. McGARRY. L. A. 5523.

Page 254

267 P.2d 254

42 Cal.2d 429

PEOPLE v. McGARRY.

L. A. 5523.

Supreme Court of California, In Bank.

March 1, 1954.

Ellery E. Cuff, Public Defender, and Noel B. Martin, Deputy Public Defender, Los Angeles, for appellant. ¹

Edmund G. Brown, Atty. Gen., and Alan R., woodard, Deputy Atty. Gen., for respondent.

SHENK, Justice.

This is an appeal from a judgment of conviction of murder in the first degree, imposing the death penalty, and from an order denying a motion for a new trial. The homicide occurred on March 30, 1953.

The defendant is 65 years of age. His victim, Richard K. Gandy, was a member of the law firm which represented the defendant's wife in her successful action for separate maintenance. In that action, begun in 1948, an order was made requiring the defendant to pay certain sums in support of his wife and child, and for attorneys' fees. He refused to do so and a contempt proceeding was instituted against him in July, 1949. In an attempt to justify his refusal he contended that the marriage was invalid because his purported wife had not secured a divorce dissolving her marriage to a former spouse. He was found guilty of contempt and was committed to jail. After remaining there for 43 days he paid the support money in the sum of $450 and was released. He asserted that Mr. Gandy was instrumental in prolonging litigation in the separate maintenance suit and in hindering opportunities for reconciliation; that letters written to Gandy inquiring of the whereabouts of the defendant's child were unanswered; that he was 'shaken down' for the $450 and that his wife fot not 'a dime of it.' In October, 1951, he went to the office of the decedent and engaged in an argument with him over the case. There is evidence that the defendant made threats against the decedent at this time.

Several months prior to the homicide the defendant purchased a gun and ammunition for the purpose of shooting Gandy. On the morning of March 30, 1953, he deposited with the manager of the trailer court in which he leved an envelope containing the pink slip to his automobile for the stated reason that he didn't know whether he would be back. He left the court about 9:30 a. m. with the loaded gun in his possession. When asked during the trial when it was that he had definitely made up his mind to shoot Gandy he answered: '* * * I just can't say when I did. I know definitely that morning when I went down to get Mr. Gandy I certainly had it on my mind that morning and I wasn't insane or anything like that.' He testified that nothing unusual had happened to disturb him and that he hadn't seen or been in contact with Gandy since the scene in the latter's office almost a year and a half before. He went by bus directly to the attorney's offices and freely admits that when he entered the outer office it was his intention to shoot Mr. Gandy. He gave the name of 'C. Deagen' to the secretary, fearing that Gandy would not see him if he gave his true name. He waited in the reception room reading a magazine until Mr. Gandy came in and passed through the room. Because he was not quite sure of the identity of his intended victim, whom he had seen only on his one previous visit to the offices, he inquired of the secretary if the man was Mr. Gandy, because he 'wanted to be very sure.' A few minutes later Mr. Gandy summoned the defendant into his inner office. In his own words the defendant testified: 'I said, 'My name is not Deagen, it's McGarry'; and then I shot him.' After the shooting the defendant walked to the outer office and twice asked that police be called. Mr. Gandy died that day from the effects of a single bullet wound near his heart. Although the defendant freely admitted an intention to shoot, he denied any intention to kill the decedent. He also testified that he 'would have taken any one of five guys, just in order to get where I am right now, to get this thing in court.'

From the evidence there is no question but that the killing was 'wilful, deliberate, and premeditated', Penal Code, § 189, and that the jury was justified in determining it to be murder of the first degree. The defendant does not question this determination. He questions only the propriety of the sentence requiring the death penalty, and argues that the motion for a new trial was supported by such new evidence that if it were revealed on a second trial it would sufficiently impress the minds of the jurors to make a sentence of life imprisonment reasonably probable. He contends, therefore, that it was an abuse of discretion for the trial court not to grant the motion, and this is the only question on appeal

The affidavit in support of the motion for a new trial recites the events taking place prior to and during the contempt proceedings and is highlighted by the defendant's bitterness against those who he felt were responsible for what he considered to be the perpetration of fraud upon him and his frustration in his attempt to draw attention to his plight. The so-called newly discovered evidence consists of excerpts from the transcript in the contempt proceedings which indicate that the defendant there raised the question of the propriety of the support order he refused to obey. With reference thereto the judge presiding is claimed to have stated 'I am making an investigation before sentencing.' The investigation referred to had been frequently mentioned during the course of the trial of the present case. The defendant's testimony that the judge had stated that he would investigate was corroborated by one witness. On the other hand a law partner of the decedent testified that no statement of this...