People v. Totten

ADAMS, P. J. In an information filed by the district attorney of Nevada County, defendant was charged with the murder of one Harvey McVean on. July 15, 1943. He. entered pleas of not guilty and not guilty by reason of in-' sanity. A jury found him guilty of murder of the second degree, and also found that he was sane at the time of the commission of the offense. A motion for a new trial was denied. Defendant now appeals from the judgment of imprisonment for the term provided by law, and from - the order denying a new trial, contending that the evidence is insufficient to support the verdict of murder of the second degree, and that if defendant was guilty of any offense it was,- at most, manslaughter.

These contentions are without merit. Considering the evidence in the light most favorable to the prosecution, as we must -do on this appeal, it is ample to sustain the verdict. [769]Defendant was the nephew of a Mrs. Mary E. Field, a woman past eighty years of age, who lived alone in her own home in Hill’s Flat near Nevada City. About a year prior to the homicide, defendant came to reside in Hill’s Flat, and with his wife, Ethel, occupied a house back of his aunt’s property. The decedent, Harvey McVean, lived with his wife, Mary, on property also adjoining that of Mrs. Field. The evidence shows that there was a very real friendship between the McVeans and Mrs. Field, that Mr. McVean had been very good to Mrs. Field, had helped to take care of her deceased husband during his last illness, and at one time after her husband’s death had boarded with her to help her out. On the evening of July 15, 1943, just before seven o’clock, McVean, who just two days before had returned to Hill’s Flat after an absence of several months, left his house, stating to his wife that he was going to see Mrs. Field whom he had not yet seen since his return. Mrs. Field testified that McVean came to the side door of her home and knocked, that she went to the door and exclaimed, “My Lord, Harvey McVean,” and that at her invitation he entered; that at this point defendant Totten came into the house through the back door, “wild and shouting, ‘Harvey McVean, you get out of here, you get out of here, Harvey McVean, you get out of here and stay out of here’ ”; that McVean said, “Mrs. Field, he has got the gun on us,” and that when she turned around Totten “had the gun pointed to shoot”; that with her hand she gave him a push and he went down; that when he got up he said “I will shoot Harvey McVean and I will shoot you. I will kill the both of you”; that McVean then said he would go home and would see her later, whereupon he stepped out of the house and started back to his home; that he said nothing whatever to Totten; that the latter went out the back door, that she followed him and locked the door and then ran to a neighbor’s to call for help, and that after one call she heard a shot. She also said that she had once heard defendant say that McVean had better stay away from there and “not be monkeying around.”