People v. Harvey

SCHMIDT, J.,

pro tem.

Appellant appeals from his conviction in the trial court of murder in the second degree and from a judgment thereon and the order denying his motion for a new trial.

The killing is admitted. The facts and circumstances surrounding the killing rest entirely upon the extrajudicial statements of appellant and his wife given the police and the testimony of appellant and his wife given at the trial. There is substantially no conflict and very slight variance in the statements.

In the year 1927, the victim, Raymond Gottshal, and Lillian Harvey, wife of appellant here, were sweethearts and in the latter part of that year lived together as man and wife without the formality of marriage. At that time Mrs. Harvey’s name was Lillian French, but she was known and recognized by the name of Lillian Gottshal. Gottshal and Mrs. Harvey lived together until April or May, 1929, when Mrs. Harvey left Gottshal. In the latter part of the year 1928 Mrs. Harvey purchased with her own funds, taking title in the name of Lillian Gottshal, a lot located at Eighty-ninth and Denker Streets in the city of Los Angeles, upon

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which was built a double bungalow. After its completion Raymond Gottshal and Lillian French, then known as Lillian Gottshal, moved into that part of the bungalow facing Eighty-ninth Street, and continued to live there until the separation hereinbefore stated. Lillian B. French, then known as Lillian B. Gottshal, at that time owned certain furniture which was placed in the house and was part of the furniture used by her and said Gottshal. !

In June, 1929, said Lillian B. French commenced to “keep company” with appellant and on September 1, 1929, married him, and continued to live with him as husband and wife up to the time of the-fatal affray involved herein. .

In the latter part of 1929 Lillian Harvey made efforts to eject Gottshal from the premises on Eighty-ninth Street and for that purpose transferred the title to a niece, who brought legal proceedings to oust Gottshal, which proceedings were still pending at the time of the affray. Between the time of the marriage of Mr. and Mrs. Harvey and the affray which resulted in the death of Gottshal, Gottshal had made numerous threats against appellant and his wife. No good purpose can be gained by setting out these threats in detail. In spite of these threats appellant and his wife on the evening of March 1, 1930, drove to the Eighty-ninth Street premises in a Ford truck, believing Gottshal out of the city. Finding the house locked, a window in a French door was broken by appellant with a piece of pipe procured from his truck, which piece of pipe was claimed by appellant to be used by him to separate bundles in his delivery and collection of laundry, he being engaged in the laundry business as a route man. After breaking the window appellant entered through the window and his wife went around to the front of the house carrying the iron pipe, as stated by her, with the purpose of putting the same on the truck; but before she reached the truck appellant .had opened the front door and Mrs. Harvey dropped the iron pipe near the walkway which led from the porch to the sidewalk. Appellant and Mrs. Harvey then proceeded to collect the articles claimed by Mrs. Harvey to belong to her and to place them on the truck. They had hardly completed the removal of the articles to the truck when the decedent, Gottshal, drove up in another truck, jumped out and rushed immediately toward appellant, who was at that time standing on the