People v. Farrington

WASTE, C. J.

Peter Farrington, accused of the crime of murder in having, on or about April 29, 1930, killed 'John Malcolm, a police officer of the city and county of San Francisco, was convicted of murder in the first degree, and the death penalty was imposed. It was also charged in the information that, prior to the present offense, Farrington, under another name, had been convicted of assault with intent to commit robbery in San Francisco, and, under still another name, had been convicted of the crime of “violently stealing” in British Columbia. Farrington at first denied that he had suffered the two prior convictions of felony, but subsequently withdrew his denial and admitted the two priors. Motion for a new trial was made and.denied.

On April 29, 1930, Max Kahn, office manager of the California Stevedore and Ballast Company, and Maurice Murphy, paymaster of the same company, alighting from a taxicab near the office of the company on pier 26 on the waterfront in San Francisco, were held up and robbed of $3,200, the amount of the pay-roll just drawn from a bank. Two men perpetrated the actual robbery, while one remained in an automobile close by. During the course of the robbery, John Malcolm, a San Francisco police officer, sought to aid Kahn and Murphy, and was shot and killed. The murderer and his accomplices escaped from the scene in the waiting automobile. Some time later, the appellant was arrested in the state of Washington and afterward returned to San Francisco for trial. From the judgment of conviction and order denying his motion for a new trial the defendant appeals.

The most important question presented for consideration on appeal concerns the sufficiency of the identification of the appellant. Certain other objections to the legality of the conviction are advanced, but the real question is whether or not there is, in the record, evidence upon which the jury was warranted, as a matter of law, in finding that the appellant was the actual perpetrator of the crime.

The appellant was identified by the witness Gibson, driver of the taxicab which took Kahn and Murphy to the office of the stevedoring company, and who stated that the defendant answered the description of one of the two men who

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perpetrated the actual holdup; and was the one who asked him if he had a “rod” [pistol], and searched him for a gun. The appellant was definitely identified by the witness as the “one that did the shooting”, and also by another witness, Brehmer, in the employ of the freight department of the American-Hawaiian Steamship Company, who watched the struggle between the police officer and the appellant, at which time the appellant had a gun in his hand. William Hales, another witness, who saw the officer shot, identified the defendant in the courtroom. Christian Clausen, superintendent of the stevedoring company, identified the appellant as the man he saw pull a gun “out of his pocket and put it in Kahn’s stomach”. He was very positive that the defendant was the man. Henry Hade, a clerk in the employ of the American-Hawaiian Steamship Company, was another witness to the robbery who testified “he heard a scuffle and ran to the door from which he saw the officer and a fellow with a gun ... an armed man holding the officer’s arm and . . . telling the officer to turn around”. He identified the appellant as the man who fired the gun.