People v. Arnold

NOURSE, P. J.

Defendant was tried to a jury on an indictment in two counts charging murder in the second degree for the killing of one Cavness and in the first degree for the killing of one Greenway. Conviction was had on both counts, the jury recommending a life sentence on the second. He appeals from the judgment and the order denying his motion for a new trial.

Appellant does not comply with the rule requiring a statement of the grounds relied on but we may glean from his opening brief that after attacking 12 instructions given or refused, he contends that the evidence is insufficient and that the two verdicts are irreconcilable. On the question of the evidence our statement of the facts herein is sufficient answer. On the question of the difference in the verdicts the undisputed evidence coming from the defendant’s own statement is that, after he had shot Cavness in the back of the head, he realized that Greenway would be a material witness against him and thereupon shot the latter to close his lips. Further treatment of this incident will appear in our discussion of the instructions covering the degrees of murder.

The facts are not in material dispute, a large part of the material evidence coming from defendant’s statements. It is a sordid story. The defendant was a young man of 26 years,

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married, and the father of three children. These he abandoned, sold his home, and pledged the personal belongings of the family to get money to buy narcotics. The victims of the homicide were two Negroes who were engaged in a profitable business of selling narcotics. Defendant was a constant customer of the deceased and a short time before the homicides he was in debt to them in the sum of $114, to secure which he had pledged some of the family assets. At the time of the homicides he had left his family home and was rooming with another party in San Francisco. Prior to the homicides he tried to procure more dope from his victims, but they insisted upon payment of what was then due. He told them he expected his mother to give him a loan and persuaded them to drive him to his new abode to get the expected check. There he went into the house, found no check had come from his mother, procured a .45 automatic pistol from the landlady, slipped one cartridge into the chamber, and placed the gun in his belt. He then went out to the street where the two colored boys were waiting in their Cadillac sedan and told them the money had not arrived. They ordered him to get into the car “as they wanted to talk the matter over.” Cavness drove, Greenway sat in the front seat to his right, defendant sat in the rear. They drove to an unlighted area in Duncan Heights where they stopped the car and made repeated demands on defendant for payment, and, according to defendant’s testimony, accompanied these demands with threats. The defendant drew his gun, shot Cavness in the back of the head, and then as Greenway turned to look at him, the defendant sensed that he would be a witness to the murder and shot him through the head. Defendant turned off the car lights, took $250 in cash from the pocket of Cavness, and returned to his rooming house where he gave his landlady $40 for the gun he had borrowed from her. He was arrested a few days later sitting in a closed motor vehicle in an unfrequented highway out of Redwood City where he had attempted to commit suicide with the use of a rubber hose attached to the exhaust pipe. With the aid and direction of the defendant the police officers found the gun used in these homicides several yards from the decedents’ car partly buried in the ground. There is no contradiction of any of these facts meriting consideration. Its sufficiency to support the charges in the indictment cannot be questioned.