People v. Duncan

NOURSE, P. J.

Defendant appeals from a judgment entered on a jury verdict finding him guilty of second degree

[249]

murder, and from the denial of his motion for a new trial.

Soon after the beginning of the late war the defendant left his employment with an oil company and entered the United States Army where he attained the rank of major and was assigned to the duties of oil transportation in the army offices located at 200 Bush Street, San Francisco. Employed in the same offices and assigned to Major Duncan was one Dorothy Vivell, a woman of about thirty-five years, who had been divorced in 1937, and who was the mother of two girls nine and ten years of age. Major Duncan was a man of about forty-seven, married, with a wife and daughter residing at the Duncan home in Glendale. The major and Mrs. Vivell soon began to associate outside the office and for more than a year their relations were intimate—at his apartment in San Francisco, at hers, and at a summer resort in the northern part of the state.

The relations reached the stage where the parties agreed that if the major could procure a divorce from his wife the parties would be married. The wife appeared unexpectedly at the defendant's apartment on the evening of January 27, 1945, and the three parties met on the 30th and discussed at great length the involvement in which they found themselves.

Some time after eight p.m. Mrs. Pisano, a close friend of the deceased, was called in as a sort of referee or arbitrator. What occurred on that occasion is best told through Mrs. Pisano’s testimony.

“Well, when I was greeted at the door they were—all three of the parties were quite, oh, excited, hysterical; they were all pretty well intoxicated; and they said they were cleaning up a big mess, and asked me to sit down and hear it more or less as a judge and decide for them what they ought to do.

“Dorothy said to me, Oh, to the effect that she liked Mrs. Duncan and that she was willing to give up Dunk; and Mrs. Duncan also said the same thing: That she was perfectly willing to give the major a divorce. So I said, ‘Well, then, the question seems to remain up to the major what he wants to do. ’ And I asked the major if he wanted to marry Dorothy or if he wanted to stay on and live with his wife. He wouldn’t answer. He said, ‘Let me wait until tomorrow and let me think it over.’ And I said, ‘Well, do you mean to say that you don’t love Dorothy and that yon want to remain with your wife?’ He said, ‘No, I still love Dorothy.’ And I said, ‘Well, it looks