People v. Wallace

SHENK, J.

By indictment the defendants, George Wallace, H. G. Smith and Alfred Paine, were charged with the murder, on August 11, 1935, of E. G. Fish, chief of police of North Sacramento. Wallace- was convicted of second

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degree murder and has not appealed. Smith and Paine, who were convicted of first degree murder and sentenced to suffer the penalty of death, have appealed from an order denying their motion for a change of venue, from the judgment of conviction, and from an order denying their motion for a new trial..

No contention is made that the evidence is insufficient to support the verdict. The only points urged by the appellants are first, that the court erred to their prejudice in denying their application for a change of place of trial, and, second, that the court prejudicially erred in denying a challenge for cause of a prospective juror.

On August 10, 1935, the defendants left Oakland by automobile owned by Wallace, bound for the location of a mining claim in the vicinity of Allegheny in northern California. In the automobile they had their camping equipment and tools, including a pinch bar. Paine had a pistol which he placed in the pocket of the front door of the car. As they neared North Sacramento shortly after midnight Paine suggested that they obtain a case of beer. The car was stopped about a block from a small grocery store in North Sacramento and Smith and Paine got out of the car. Smith took the pinch bar. Paine took the pistol and told Wallace to keep driving around until they came back. Paine then forcibly entered the store and handed to Smith, who was waiting outside, some loaves of bread, some cigarettes and a case of beer. The two left with the stolen merchandise to meet Wallace and depart in the car. Smith discovered that he had dropped the pinch bar and returned toward the store. On his way back he was stopped and seized by a citizen who resided near by and who called a neighbor to- summon the police. Paine returned in search of Smith and demanded that he be released, at the same time discharging his pistol in the ground between the two citizens. Smith was thereupon released and fled with Paine in search of Wallace and the car. Wallace had already aroused the suspicions of a deputy sheriff who had arrested him for questioning. Paine and Smith had not gone far, Paine walking and running about ten feet in advance of Smith, when Chief of Police Fish drove around the corner in his automobile, stopped his car, called to the two men to “Wait a minute, boys”, and got out of his car. Smith immediately ran. The officer walked around