People v. Carr

SHINN, J.

At about 2 o’clock in the morning of June 19, 1944, Johnny Carr entered the Swing Shift Cafe in Los Angeles, armed with a revolver, and shot and killed one Frank Williams. Also struck by a bullet at the same time was one Richard Swanson. Accused of the murder of Williams and of assault with a deadly weapon upon Swanson, defendant was convicted of both offenses in a trial by the court. The court determined that the murder was of the first degree and defendant was sentenced to state prison for life upon the murder charge and for the term prescribed by law upon the other. He appeals from the judgment.

The grounds of the appeal are as follows: (1) insufficiency of the evidence to sustain the conviction of first degree murder; (2) insufficiency of the evidence to establish the fact that deceased died as a result of a criminal agency, and (3)

[193]

insufficiency of the evidence to support the conviction of assault with a deadly weapon.

Defendant, a Negro, and Velma Carr, a Creole, although not united by ceremonial marriage, lived together in Texas as husband and wife for two years or more before coming to Los Angeles in 1939. They continued to live together and operated a cafe but they separated about two months before the shooting and defendant thereafter ran the business alone for another six weeks, when he sold it. After the separation Velma was frequently in the company of Williams, when they made use of a ear which defendant was purchasing for Velma. During this time Williams, who had been a customer of defendant, carried messages between the two. On the night of the shooting Williams and Velma alighted from the car and entered the Swing Shift Cafe with one Catheart. They seated themselves to have coffee, Velma, sitting between the two men at a counter. Defendant was standing outside the door when the occupants alighted from the car and he saw the three enter the cafe. He said to a friend called Buddy: “You know one thing I wish I had me some tonight. You know where I can buy me a gun? I got to protect myself. Somebody trying to run over me.” Buddy then produced a .45 caliber Smith

&

Wesson revolver and defendant bought it for $20 and put it in his pocket. He testified that this occurrence took place before Williams and Velma arrived. Shortly after they entered the cafe defendant followed them with the revolver in his pocket and sat down at the counter near the door. According to defendant, Williams began cursing him, calling him names, jumped up and reached toward his belt for a knife, as defendant thought, whereupon he was shot. According to other eyewitnesses defendant came into the cafe and, without any exchange of words which they heard, walked up to Williams where he was seated facing across the counter and shot him. One bullet entered the left side of the body below the left shoulder and passed across slightly forward and slightly upward; the second entered the right cheek just below the cheek bone, crossing downward and lodging beneath the seventh rib, arid a third one grazed the cheek close to the second wound but did not penetrate. Either of the penetrating wounds was sufficient to have caused death. The witness Catheart testified that Williams fell to the floor between the stools at the first shot and that defendant put the