People v. Gorshen

SCHAUER, J.

Defendant pleaded not guilty to a charge of murder. Trial by jury was waived (as authorized by Cal. Const., art. I, § 7) and the court (see Pen. Code, § 1167) found defendant guilty of second degree murder. Defendant appeals from the ensuing judgment. He urges that uncontradicted psychiatric testimony, accepted by the trial court, establishes that defendant did not intend to take human life

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or, at least, that he did not act with malice aforethought, and that therefore he should he acquitted or, as a minimum of relief, that the offense should he reduced to manslaughter. We have concluded: (1) that the evidence as to the objective circumstances of the killing supports all findings essentially implied by the judgment; (2) that the record does not support defendant’s position that the trial court believed the evidence that defendant did not have the state of mind which was required as an element of second degree murder yet found defendant guilty of that crime; and (3) that, accordingly, the judgment should be affirmed.

Defendant, a longshoreman, shot and killed his foreman, Joseph O’Leary, at about 2:30 a.m. on March 9, 1957. The record discloses the following events leading up to the homicide : At 5 p.m. on March 8 defendant reported to the dispatching hall. Between 6 and 7 o’clock he and a fellow worker ate and consumed a fifth of a gallon of sloe gin. Defendant worked until 11 p.m. Between 11 and 12 o’clock defendant and the fellow worker ate and consumed a pint of sloe gin. Shortly after 12 midnight O’Leary saw defendant standing on the deck of the ship drinking a glass of coffee. O’Leary told defendant to go to work. Defendant threw the glass to the deck, exchanged “a few words” with O’Leary, and went to work. Thereafter■ O’Leary told defendant that he was drunk and was not doing his work properly and directed defendant to go home. They argued, defendant spat in O’Leary’s face, and O’Leary knocked defendant down and kicked him. At the request of other workers 0 ’Leary walked away from defendant. Defendant threw a piece of dunnage and brandished a carton at O’Leary.

Paul Baker, a “walking boss,” took defendant to a hospital. Defendant was bleeding and bruised; his left eye was swollen shut and a deep cut under it required five or six stitches. Defendant was discharged at 1:45 a.m. The hospital records bear the notation, “Alcoholic Breath.” As Baker drove defendant back to the pier where they worked, defendant said “that he was going to go home and get a gun and kill this fellow.”