People v. Purvis, Cr. 6434

• Decision Date: 06 November 1959
• Docket Number: Cr. 6434
• Citation: 52 Cal.2d 871,346 P.2d 22
• Court: California Supreme Court
• Parties: PEOPLE of the State of California, Respondent, v. Thomas PURVIS, Appellant.

Page 22

346 P.2d 22

52 Cal.2d 871

PEOPLE of the State of California, Respondent, v. Thomas PURVIS, Appellant.

Cr. 6434.

Supreme Court of California, In Bank.

Nov. 6, 1959.

Rehearing Denied Dec. 2, 1959.

Martin N. Pulich and George Nye, Public Defenders, Oakland, and H. Reed Searle, Asst. Public Defender, San Francisco, for appellant.

Stanley Mosk, Atty. Gen., John S. McInerny and Edward P. O'Brien, Deputy Attys. Gen., J. Frank Coakley, Dist. Atty., Oakland, and Francis W. Vukota, Deputy Dist. Atty., Pleasanton, for respondent.

TRAYNOR, Justice.

Defendant was charged with the murder of Mrs. Hazel Wilson. He entered pleas of not guilty and not guilty by reason of insanity. A jury found him guilty of murder of the first degree, fixed the penalty at death, and found that he was sane at the time of the commission of the crime. The trial court denied defendant's motion for a new trial and sentenced him to death. This appeal is automatic. Pen.Code, § 1239, subd. (b).

In 1950 defendant was convicted of the second-degree murder of his wife and sentenced to prison. He was paroled in 1954 and returned to Oakland. On December 19, 1957, he killed Mrs. Wilson. He met her in June 1957, and the next day she moved into his apartment and stayed for several days. Until the end of July she divided her time between her home, where she lived with her husband and three children, and defendant's apartment. During her first visit she told defendant that she was married and had three children and was living with her family, that she had temporarily left her family on other occasions, and that she was divorcing her husband. Defendant told her that he was on parole for the murder of his wife. They agreed to marry when Mrs. Wilson's divorce became final. No divorce action had been filed.

Mr. Wilson discovered where defendant lived and that his wife was being unfaithful. He first met defendant on the street early in July and told him to stay away from his wife. He asked what defendant would do if he came to defendant's apartment, and defendant replied, 'I guess I'd kill you; I have a gun in my house.' Another time, defendant went to the Wilson apartment when Mr. Wilson was the only one present. He told Mr. Wilson that he had come to get a clock, and Mr. Wilson told him to take what was his and get out In the course of their conversation, defendant stated that he had killed once and could kill again.

In the latter part of July, defendant and Mrs. Wilson decided to separate temporarily, and defendant told her to return to her home until the situation improved. On July 31st he went to her home to return clothes she had left at his apartment. He testified that she accused him of asking her to leave his apartment so that another woman could move in and told him she was going to call the police and tell them that he had been threatening her. According to the testimony of the children who were present, defendant became extremely angry and made jabbing motions at Mrs. Wilson with a knife. Mrs. Wilson said to her son, 'He is trying to kill me, call the police.' Mrs. Wilson and the children left her apartment, and defendant returned to his home. Shortly thereafter the police arrived and arrested him. They asked him where the knife was, and he pointed to a paring knife in his kitchen. He pleaded guilty to disturbing the peace (Pen.Code, § 415) and was sentenced to 90 days in the county jail. His parole was not revoked.

Defendant was released from jail on November 13th. He had lost his apartment and moved into an apartment with his son and daughter-in-law. He resumed seeing Mrs. Wilson and spent the night with her at a hotel near her home on several occasions, the last about a week before the homicide. During this period defendant was unemployed, and he passed worthless fictitious checks, which by December 18th totalled $281. He testified that all of the checks were cashed at Mrs. Wilson's request, but there is evidence that on at least one occasion he was with another woman when he cashed a fictitious check.

The tenant who rented defendant's apartment after he had been sentenced to the county jail testified that two or three weeks after his release from jail, he came to the apartment and gave her a set of keys. He asked if she found the gun he had hidden above the transom and told her that he would kill Mrs. Wilson because she had him sent to jail. The tenant found no gun in the apartment. Defendant denied the conversation about the gun and Mrs. Wilson.

About the end of November defendant purchased a 22-caliber pistol and some shells from a person he met in a bar. He testified that he paid $15 for the gun with the understanding that the seller would buy it back later for $20. He also testified that he tried several times to sell the gun, but statements he made to the police tend to contradict this testimony.

Mrs. Wilson's son Charles testified that about a week or ten days before the homicide, defendant came to their home in the evening while he and his mother were watching television. Mr. Wilson was asleep in another room. Defendant told Mrs. Wilson that he loved her and that 'if you ever leave me, I will kill you.' Charles became annoyed at defendant's behavior and compelled him to leave.

On December 17th defendant wrote Mrs. Wilson a letter, which was postmarked 1:30 A.M., December 18th. It stated: 'Haze Darling: I am writing this to let you know that I love you, sweetheart, and always will. Until I die your lovely face will always be before me. Thanks honey for the wonderful hours you have given to me. Your love has been the sweetest and best that any man could ever receive from a woman. Honey, as you have probably heard by now, I am in trouble. I will not be able to see you or write to you again. My darling, forget you ever met me. I am no good for you. Remember this my darling, I love you forever. Mom dear, please, please don't be too angry with me. What I have done is wrong but I done these things so I could be with you. Haze darling, I love you with all my heart and soul. Goodbye, my darling. I love you, my angel. Tom Purvis.'

In the daytime on December 18th, however, defendant visited Mrs. Wilson at her home with his son. The visit was amicable, and Mrs. Wilson apparently expected defendant to return the next day. She told her son Charles the next morning to come home for lunch because defendant and his son were coming over with a crash helmet for Charles to use while motorcycling.

Defendant left his son's apartment about 9 A.M. on December 19th and took the 22-caliber pistol with him. He went to Mrs. Wilson's apartment and was admitted by her 10-year-old daughter. Mrs. Wilson had gone back to bed after preparing breakfast for Charles and her husband, who had left before defendant arrived. The daughter took defendant into the bedroom, and he told her to leave. She went into the hall and played with some other children and then went upstairs to the apartment above. Before she left the hall she heard defendant speak of a letter and heard Mrs. Wilson tell defendant to 'sign it' and heard defendant say, 'no, you sign it.'

Defendant testified that he went into the bedroom and talked with Mrs. Wilson about a crash helmet that he was going to buy for Charles. Mrs. Wilson said she was not feeling well, and they went into the kitchen so that she could take some medicine. They returned to the bedroom and again discussed the crash helmet and a radio defendant intended to buy Mrs. Wilson for Christmas. He told her he could buy the crash helmet and radio if he received an unemployment check and could sell the pistol, which he took out of his belt and laid on a dresser. Mrs. Wilson then asked defendant to sign another fictitious check, and he said that if any more checks were to be signed she would have to sign them. She asked him if he were 'going to do as she told me to,' and he said 'no.' Sometime during the conversation he left the room while she dressed. They argued further about who was to sign the check, and she asked him to go to a liquor store and get some whiskey, but he refused. She then told him that she was going to call the police and tell them that he had been threatening her again. She did not threaten him physically, but she said that she would send him back to San Quentin 'for good.'

The next thing defendant remembers was walking down the street with the pistol in his belt. He went into a bar, ordered a glass of beer, and told the bartender to call the police. He put the pistol on the counter, and when the bartender told him that he would get in trouble if the police saw him carrying a weapon, he said 'Well, it doesn't matter.' Then he said, 'There is a dead woman up there.' Under questioning by the police and on cross-examination at the trial, defendant was unable to remember what happened after Mrs. Wilson told him she would have him returned to San Quentin. He had suffered such a lack of memory only once before, in 1950 when he killed his wife.

When the police officers arrived at the bar, they searched defendant and removed the gun. He directed them to Mrs. Wilson's apartment, where the officers found her body on the floor. She died as a result of multiple gunshot wounds from bullets fired from defendant's gun. He told the arresting officers, 'I loved her, I shot her, and she will never drag another man down.' Later on the way to the police station, he said, 'I pumped seven bullets in her and that ought to do the job.'

Defendant contends that the evidence is insufficient to support a finding that the killing was 'wilful, deliberate, and premeditated' (Pen.Code, § 189), and that since it could not be murder of the first degree under any other theory, the court should reduce the degree of the crime to murder of the second degree. See Pen.Code, § 1181, subd. 6. Defendant concedes that standing alone the threats to kill and the purchase of the gun followed by its intentional use to kill would support an...