People v. Smith

THE COURT.

The defendant- and appellant herein, George Smith, and John Kazarin were jointly tried and convicted in the Superior Court of the County of Alameda of murder of the first degree, and sentenced to suffer the death penalty for having murdered Reinhold A. Frey. Both appealed to this court. Pending said appeal Kazarin committed suicide. Smith’s appeal, after a lengthy review of the facts and the law applicable to his case by this court, resulted in the judgment of conviction being affirmed.

(People

v.

Smith,

215 Cal. 749 [12 Pac. (2d) 945].) It appeared from the evidence by the testimony of a large number of eye-witnesses and other incontrovertible facts that the defendants, both making their headquarters in the city of San Francisco, had planned to apprehend the deceased, who was a frail man in stature and past fifty years of age, as he was returning to his place of business from a near-by bank in the city of Oakland carrying a satchel containing moneys, which he had deposited the evening before for safekeeping, as was his custom, and to rob him and escape by means of an automobile which they were operating under a license plate which they had stolen from another automobile. As Smith assailed Frey, at about- the hour of 9 o’clock in the forenoon, and was using force and violence in an attempt to wrench the satchel from Frey’s possession, the latter by outcries attracted the attention of passers-by. Smith, thwarted in his attempt, backed away from Frey, who was close to the building line, to the edge

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of the sidewalk, drew his pistol and wickedly fired the shot which proved fatal. He then escaped from the scene in a waiting automobile operated by his accomplice, Kazarin. Both were in due time apprehended and convicted, as herein set forth. The appeal taken by Smith resulted in an affirmance of the judgment, filed June 30, 1932. A petition for a rehearing upon due consideration was denied.

After said judgment had become final and at the time judgment was to be reimposed on said Smith, as provided by law, Ernest Spagnoli, attorney for said Smith, appeared before said Superior Court of the County of Alameda in presentation of a motion for an order striking the indictment from the files and for an order vacating, annulling and setting aside the judgment of conviction.