People v. McKay, Cr. 5212

• Decision Date: 15 October 1951
• Docket Number: Cr. 5212
• Court: California Supreme Court
• Parties: PEOPLE v. McKAY et al.

Page 145

236 P.2d 145

37 Cal.2d 792

PEOPLE v. McKAY et al.

Cr. 5212.

Supreme Court of California, in Bank.

Oct. 15, 1951.

Rupert Crittenden and Kennedy Jackson, Oakland, under appointment by the Supreme Court, for appellants.

Edmund G. Brown, Atty. Gen., Doris H. Maier and Wallace B. Colthurst, Deputy Attys. Gen., for respondent.

TRAYNOR, Justice.

Defendants James McKay and Robert Sturm, 18 and 19 years of age respectively, escaped from a Youth Authority camp at Whitmore in Shasta County. They went to Seattle, where they were arrested and detained. Earl Sholes, undersheriff, and Dan Heryford, a deputy sheriff of Shasta County, took custody of defendants in Seattle. On the return trip by automobile the two officers rode in front, the two defendants in back. Each defendant was handcuffed separately with his hands in front of him. While the automobile was traveling through a sparsely inhabited mountain area each defendant lunged forward on a prearranged signal and struck the officer directly in front on the head and shoulders. During the struggle the car skidded to § stop, and one of the defendants secured one of the officers' guns. The officers were shot and fatally wounded, and their bodies dragged down an embankment by the side of the highway. Defendants removed various articles from the officers' clothing and then fled in the car. They were apprehended the following day. There is a conflict in the evidence as to the way in which the shots were fired and by which defendant and as to whether the homicides were a premeditated or spontaneous part of the escape plan. The jury found defendants guilty of two counts of murder of the first degree without recommendation.

Defendants contend that the trial court committed prejudicial error in denying their motions for a change of venue. See Penal Code, §§ 1033-1035. A motion for a change of venue on the ground that a fair and impartial trial cannot be had in the county is addressed to the sound discretion of the trial court. People v. Cullen, 37 Cal.2d 614, 627, 234 P.2d 1, and cases cited. When the facts demonstrate that such a trial cannot be had 'an order must be made transferring the action to the proper court of some convenient county free from a like objection.' Penal Code, § 1035; People v. Suesser, 132 Cal. 631, 635, 64 P. 1095; People v. Yoakum, 53 Cal. 566, 571. We have concluded in the light of the circumstances established by the record that this is such a case.

The decedents were well known, popular officers of a small county. Defendants were strangers with bad reputations. The homicides were given extensive and continuing publicity in the local newspaper, which was widely circulated in the county. The accounts of the crime emphasized the fact that defendants had confessed. At the time of the crimes the community was thoroughly aroused, there was talk of lynching, and defendants were taken to the state prison for safe-keeping. Although affidavits filed in opposition to the motions for change of venue stated that by the time of trial the feeling of public indignation had considerably cooled, they did not deny the existence of widespread bias and prejudice against defendants. When defendants moved to disqualify Judge Ross of the Superior Court of Shasta County he stated that if he were conducting a trial without a jury 'then perhaps the things stated by the defense would constitute a disqualification.' He was prohibited from proceeding with the trial of the cause. McKay v. Superior Court, 98 Cal.App.2d 770, 220 P.2d 945. At the time the trial was originally commenced before Judge Ross and at the time it was continued before Judge Jones, who was assigned to the case from Lake County, no available member of the Shasta County bar was sufficiently free from bias or prejudice to participate in the defense. At the time of trial one of the local attorneys, after stating reasons why he should not serve, said, 'Despite that situation, feeling as I do the responsibility with which the attorneys here and myself are burdened in such an unhappy situation, I would be willing to do my best to act as attorney for these boys or either one of them, knowing that it is not a popular thing to do, knowing that maybe in the defense of these boys I might offend a friend whom I revere, but despite that I would accept it.' One of the defense attorneys appointed from outside the county was unable to find any local citizen who would execute an affidavit in support of the motions for change of venue. All of the more than twenty persons he interviewed stated that the vast majority of persons in Shasta County believed defendants guilty and thought they should receive the extreme penalty. All of them, however, refused to execute affidavits to that effect because of the criticism it would engender.

Public indignation against defendants was further aroused by the publicity given to a letter written by Judge Ross to the board of supervisors. At the time Judge Ross appointed counsel for defendants, he suggested to them that some provision could probably be made to reimburse them for the expenses that would be incurred because they would have to come from a distance to undertake the defense. After these counsel were successful in having Judge Ross prohibited from proceeding with the case, some of them filed a claim with the board of supervisors for expenses. Judge Ross wrote the board of supervisors that the claim should not be paid. After giving the history of the case before the opening of the trial before him, Judge Ross wrote:

'On the morning of July 18, with 125 jurors waiting to be called and for the trial to commence, the attorneys asked to confer with me in my office before going into court. They then said they were going to file affidavits of prejudice against me so that I would have to call in another judge to preside. They stated that they had nothing personal against me and considered that I would be fair and impartial, but that they owed this duty to their clients. I asked if that meant they were going to waive a jury trial when a new judge was brought in, and they said they would have to see about that later and that the first step was to get a new judge in for the case. I called their attention to the fact that 125 jurors were getting $5 per day and mileage to be there, and they just shrugged their shoulders.

'We then went into court and they filed affidavits of prejudice against me. I asked in open court if they intended to waive a jury if a new judge came in and remade my offer to voluntarily step out without admitting disqualification in case of a waiver of jury or a plea of Guilty. They would not state what their plans were. (I had in mind that all four attorneys had stated in our conferences in my office many times that they had gone over the case with the defendants, and that there was no question of the guilt of both defendants of the crime of murder and that their only hope was to get them off with life imprisonment, although they might try to argue to a jury that it was only second degree murder.)

'Under the law all I could do was to have the Judicial Council in San Francisco get some other Superior Court Judge to come in and pass on my disqualifications. Therefore, on July 19th, Judge Warren Steel of Marysville came up and heard both sides of this matter and decided that there was nothing in the record to show that I was disqualified.

'We proceeded with the case on the 20th and 21st, and on the 25th and 26th of July, and had almost succeeded in selecting a jury for the trial when a writ of prohibition from the appellate court halted us. This was heard on August 2nd in Sacramento, and on the 3rd the appellate court held that I was disqualified.

'Although we must obey this decision, it was wrong and I was not actually disqualified, and all four attorneys for the defendants at one time or another admitted this to me. They therefore did what they did apparently for delay of the case and to make it as expensive on the county as they could. Nothing they did was directed towards having a trial on legal evidence to decide whether McKay and Sturm did or did not commit murder. I therefore feel that they are not entitled to be paid anything for what they have done in this case.'

Judge Ross' letter was printed in the local paper in its entirety approximately two weeks before the trial commenced before Judge Jones, and the part referring to the unanimous opinion of defense counsel that defendants were guilty was reprinted at the time the jury was being selected.

A jury and two alternates were selected with difficulty after ten trial days and the examination of approximately 251 possible jurors. Although all peremptory challenges were exhausted, there remained on the jury persons familiar with the publicity given the case, including Judge Ross' letter.

It has recently been held that 'The popularity of the decedent, the fact that the inhabitants are well known to each other in a small county, and the customary newspaper publicity, do not necessarily warrant the granting of a motion for change of venue.' People v. Mendes, 35 Cal.2d 537, 542, 219 P.2d 1, 4; see also, People v. Brite, 9 Cal.2d 666, 689-690, 72 P.2d 122. In the present case, however, a much more compelling showing has been made that defendants could not receive a fair and impartial trial in Shasta County. The record is replete with evidence, not only of general bias and prejudice against defendants, but of antagonism so intense that the local citizens hesitated or refused to take part in any effort directed toward securing to defendants their legal rights.

Although it may be true that the feeling of substantial citizens at the time of the crimes that 'the courts should not waste time on...