People v. McCurdy

PULLEN, P. J. Defendant is here appealing from a judgment finding him guilty of murder -of the second degree and from an order denying a motion for new trial.

Inasmuch as one of the grounds urged for reversal is the insufficiency of the evidence to sustain; the verdict, we will set forth the evidence in some detail. We will not, however, narrate such circumstances as may appear in the record favorable to appellant, for in considering the insufficiency of the evidence it is not our province to pass upon the guilt or innocence of the accused, that being the duty of the jury, it being for this court to determine from the record whether the finding of the jury is supported by legal evidence tending 'to show the guilt of the accused.

The Smoke Shop in the city of Crescent City appears from the testimony to be a gathering place for certain of the young men of that community, where, in connection with a coffee shop, is conducted a pool hall and cigar stand, where beer and perhaps other beverages are sold. On the night of May 25, 1933, a dance had been held at Klamath, some miles from Crescent City, and several persons, including defendant, had stopped at the Smoke Shop for breakfast and refreshments. About 3:30 Sunday morning defendant was at the bar when a young man entered and purchased some cigarettes. His change was placed before him but was picked up by one of the bystanders. Remarks were made by those present regarding the matter and the attendant at the bar inquired to the effect: “Shall I hit him?” to which the proprietor, one Lloyd McLaughlin, replied in the negative. McCurdy, the appellant here, also spoke up and said, “No, don’t hit him.” At this point the deceased, David Lopez, an Indian, who was standing at the entrance to the bar, said to defendant McCurdy, “What have you got to say about it?” McCurdy answering, “Nothing, it is none of my business.” At this point McLaughlin, the proprietor, called Lopez and McCurdy together and intro[502]duced them and thereafter no further controversy was heard in regard to that matter. The evidence is clear that Mc-Curdy was not under the influence of liquor, but it is equally clear that the deceased was intoxicated. As the two men stood conversing, Lopez asked McCurdy his name, and a third person to the conversation interposed and said, “His name is McCurdy, he works at the Radio Station,” meaning the Naval Radio Compass Station, which is located near Crescent City. Lopez then requested McCurdy to go with him into the rear occupied as a billiard room and the two then retired to that portion of the Smoke Shop. Shortly thereafter McLaughlin went back into the darkened billiard room to see what the two men were doing, and, being assured by both that they were merely engaged in a friendly conversation, he left them alone. After the men had been in the billiard room some ten or fifteen minutes a shot was heard, followed by an interval, then1 by eight more shots. As the last shots were fired the back of the defendant appeared through the glass door between the bar and the billiard room, disappeared for a moment; then defendant emerged into the front of the building. He approached the bar and asked for a glass. of beer, which was refused him. He then said no one could hit him with a cue and attempted to pass his revolver to McLaughlin, who refused to receive it. He then made some attempt to reload the revolver, but when some bystander remarked to him he better get rid of the shells he stepped to the curb in front of the Smoké Shop and threw several into the street. He then returned to the barroom, where he awaited the arrival of a deputy sheriff and on being informed he was an officer surrendered himself to him. Investigation showed that the deceased had been killed by gun wounds. An autopsy revealed that the deceased was struck by seven bullets, three entering from the front and four from the rear and two of the wounds were, according to the autopsy surgeon, fired into the body of the deceased as he lay upon the floor. It was the claim of the accused that he fired in self-defense. Upon entering the billiard room at the rear of the bar, defendant testified that Lopez seized him and accused him of being responsible for an attack upon a former woman friend of his. This accusation was denied by defendant and after some further conversation Lopez again renewed his charge and seized Mc-Curdy and thrust him against the wall. While McCurdy