People v. La Verne

PRESTON, J.

On June 9, 1930, the Alameda County grand jury returned an indictment charging defendant with the murder of one Marcello LaGorio and also with a prior conviction of a felony, to wit: burglary. Upon trial of the cause, the jury returned

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verdict finding defendant guilty of murder of the first ■ degree without recommendation of life imprisonment. Judgment carrying the death penalty was thereafter pronounced upon him and from said judgment and the order denying his motion for new trial, he now prosecutes this appeal.

The case is admittedly a clear one. On the night of May 28, 1930, defendant entered the grocery-store of said LaGorio at 5932 San Pablo Avenue, Oakland, with the intention of committing a robbery. Pie pointed a revolver at LaGorio and told him to “stick them up” and, as LaGorio turned, told him to “hurry up”, drawing back the hammer of the revolver to make LaGorio move faster. Defendant told the police inspector that he had his thumb on the hammer :and that the hammer slipped, accidentally discharging the' gun, and LaGorio fell to the floor, where he was found by his family. Two days later he passed away "from the' effects of the wound. .On June ■ 4th defendant-was apprehended and. charged as above set forth.. He admitted having committed approximately fifteen other specified robberies • between April 29 and June 1, 1930; that he was armed on all these occasions, but that he had never attempted to shoot any person, even when resistance was offered, which statement was found by a police officer to be true. He testified that his gun and ammunition had been furnished him by a confederate who was waiting in an automobile at the time' LaGorio was shot!' When arrested defendant' was

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armed with two loaded revolvers, from one of which had been fired the bullet that killed LaGorio.

Counsel in effect admit, as they must, that defendant is guilty of first degree murder and direct their entire efforts towards having the punishment reduced. In this behalf they make the following contentions: Failure to give certain instructions requested by defendant and misconduct on the part of the district attorney, not admonished by the court, occurring during the trial and argument.