People v. McGoldrick

PEEK, J.

This is an appeal by defendant from his conviction of the crime of manslaughter. Following the return of the verdict of the jury his request for probation was denied and he was sentenced for the term prescribed by law. He now appeals from the judgment and from the purported order denying his motion for a new trial. However, since the record does not show that such a motion was made, that portion of his appeal must be dismissed.

The evidence most favorable to respondent shows that shortly before the homicide the decedent met a woman companion and with her drove to a bar near the city of Willits. They entered through the rear door and walked directly to a piano located at the end of the barroom. The woman seated herself on the piano bench next to the witness Driver, who was then playing the instrument. The decedent sat at a table, leaning, over on the piano. During this time the defendant was standing near the front of the bar drinking with four companions, one of whom was the husband of the woman companion of decedent but from whom she had been separated for several months. The defendant then left his companions, walked back to the piano, and in so doing bumped the decedent. According to Driver—the only witness who testified to seeing any blows struck—while decedent was still seated, the defendant struck him with his fist causing him to fall backward. In falling, decedent’s head hit the floor and as a result thereof he died that evening. In rebuttal the prosecution called as its witness a shorthand reporter for the city and county of San Francisco, who testified that she was present at the hall of justice in that city on the night defendant was apprehended and brought in for questioning; that defendant, when asked if decedent struck him, replied that he did not; that his hand merely “braised” the top of defendant’s hair;

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and that when defendant was asked if he struck decedent a “hard blow” he replied “Yes, I swung with all my force behind it when I swung.”

Defendant testified in his own behalf, stating that the deceased accidentally bumped him as he walked to the piano; that the deceased then got up from where he was sitting and swore at him; that they then scuffled out on to the floor; that decedent hit defendant on the side" of his head and it was not until then that he “started swinging” and struck the decedent. The defendant further testified that he had previously been convicted of stealing an automobile for which he had served time in San Quentin prison; that he was subsequently paroled and sometime thereafter was remanded to custody as a parole violator.