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Patrick Mahon McGEE





Classification: Murderer
Characteristics: Robbery
Number of victims: 1
Date of murder: July 31, 1959
Date of arrest: Next day
Date of birth: May 3, 1907
Victim profile: Ary J. Best
Method of murder: Stabbing with knife
Location: Coconino County, Arizona, USA
Status: Executed by asphyxiation-gas in Arizona on March 8, 1963

Patrick Mahon McGEE

The following is a statement of the facts and circumstances constituting the crime whereof defendant was convicted, together with all other information available in regard to the career of the defendant prior to the commission of the crime of which he, the said defendant, was convicted.

On or about the 31st day of July, 1959, the Defendant was charged with a felony, to-wit: Murder in the First Degree of one Ary J. Best. Attorneys John H. Grace and William R. Preston, of Flagstaff, Coconino County, Arizona, were subsequently appointed by the Court to represent McGee an acknowledged indigent. On August 31, 1959, a preliminary hearing was held in the Justice Court of the Flagstaff Precinct of said County and State, and the defendant held to answer without bond to the Superior Court.

An information charging Murder in the First Degree was thereupon filed September 17, 1959, to which the defendant entered a plea of not guilty on said date. Trial by jury was set for November 16, 1959 and later vacated to November 30, 1959. This trial date was also vacated and then reset for the 7th day of December, 1959.

On December 7. 1959, the defendant was tried before a Jury in the Superior Court of the County of Coconino, State of Arizona, on the charge of First Degree Murder. The trial lasted for a period of nine days, with the jury, on the 16th day of December, 1959, returning a verdict of guilty of Murder in the First Degree and assessing the penalty of death.

By order of the presiding judge, Jack L. Ogg, of Yavapai County, the date of sentencing was set for the 8th day of January, 1960, at the hour of 10:00 o'clock a.m. On said date the defendant was sentenced to die in the gas chamber at the Arizona State Prison, Florence, Arizona, on the 6th day of April, 1960.

Briefly, the facts surrounding the crime of murder committed by the defendant are these.

On the 31st day of July, 1959, the said defendant, Patrick McGee, was traveling by automobile through Coconino County, Arizona, with one Millie Fain, a woman with whom he had been living for approximately eight months, en route to California. They were given assistance on their disabled automobile by the murder victim, Ary J, Best. At a point approximately twelve miles east of Flagstaff, alongside U.S. Highway 66, Patrick McGee, without provocation, and with the apparent intent to rob, stabbed Ary J. Best, an arthritic cripple, four times in the chest and back. As the victim lay dying, and probably unconscious, on the ground, the defendant Patrick McGee placed the murder weapon---a large hunting knife the hand of Millie Fain and told her to stab the said victim twice in the neck. His companion complied and stabbed the mortally wounded man two times in the throat area. McGee and his companion then robbed the dead man's pockets and absconded with his automobile and personal belongings. No effort was thereafter made to report the matter to the authorities. The said parties squandered the victim's money in Flagstaff and Williams, and went on a "drinking party" before leaving by train from Williams to California. The two of them were arrested in Los Angeles the next morning, on the 1st day of August, 1959.

The defendant at first denied his guilt and claimed he had killed Best in resisting the latter's attempt to rape Millie Fain. This version he persisted in repeating, and on the witness chair at his trial, testified that he killed, either (1) in resisting an attempted rape, or (2) in resisting an act of solicitation by Millie Fain which reasonably appeared to him to be an act of forcible sexual intercourse.

This statement of the facts was refuted by Millie Fain, who claimed and testified to the effect that the killing was unprovoked and followed an unsuccessful solicitation of Ary J,Best by her for money, and that the solicitation was at the request and demand of Patrick McGee. Polygraphic examinations were conducted upon Millie Fain by Charles Coates, Special Investigator for the Pima County Attorney’s Office, Tucson; Arizona. The results of these tests substantiated her statements as to solicitation for intercourse rather than rape, the motive of robbery on the part of McGee together with the intent to kill.


The defendant gave the following information:

Name of relative - Una Miller, wife, 1452 Chico, El Monte, California.,

Place and date of birth - Wilburton, Oklahoma; May 3, 1907.

Health -Good

Religion - Protestant

Education - completed Eighth grade

Marital status - Married

Excessive drinking - Yes

Drugs - No

Occupation - Fruit Picker

Military History - Information not available

FBI No. 64150 - (record since June 1923) -

Charges of vagrancy, suspicion burglary, driving motor vehicle while under influence of liquor, assault and battery, drunk, traffic violation, et al, fined ten to three thousand fifty dollars, sentenced fifty to one hundred fifty days. Sentenced State Reformatory, Buena Vista, Colorado, April, 1924, grand larceny, indeterminate. Latest---Police, Los Angeles, February, 1956, Fugitive, Colorado-escape-no disposition.

RESPECTFULLY SUBMITTED this 11th day of May, 1960.


310 F.2d 230

Patrick Mahon McGEE, Petitioner,
Frank EYMAN, Superintendent, Arizona State Prison, Respondent.

Misc. No. 1486.

United States Court of Appeals Ninth Circuit.

Nov. 16, 1962.

John H. Grace, Flagstaff, Ariz., for petitioner.

No counsel for respondent.

POPE, Circuit Judge.

Upon direction of the Chief Judge of this court, I have undertaken to consider and act upon this application for a stay of execution made on behalf of petitioner who, it is stated, has been ordered executed by the respondent on the 30th day a November, 1962, pursuant to judgment and order of the Supreme Court of Arizona which has affirmed petitioner's sentence of death. The petition recites that petitioner desires to appeal to this court from the decision of the United States District Court for the District of Arizona which has denied his petition for a writ of habeas corpus.

At the outset I note that the petition here present merely prays for an order staying petitioner's execution. I am of the opinion that I have no jurisdiction to entertain such a petition in the absence of a certificate of probable cause or an application for such certificate as that is a condition precedent to petitioner's right to appeal. See U.S.C. Title 28, 2253. However, since petitioner recites that he desires to appeal, I disregard this formal insufficiency in the petition and treat the petition as one both for a certificate of probable cause and for a stay of execution. Such disregard of formal irregularities is proper and appropriate under the decisions of this court. Cutting v. Bullerdick, 9 Cir., 178 F.2d 774, 12 Alaska 528, appears to be directly in point. See also the discussion of formal irregularities in notices of appeal in Yanow v. Weyerhaeuser Steamship Co., 9 Cir., 274 F.2d 274, 282.

Proceeding to the merits of petitioner's application. I find it defective in substance and wholly insufficient to present a case which this court may entertain.

Following petitioner's conviction in a Superior Court of Arizona, petitioner appealed to the Supreme Court of Arizona, State v. McGEE, 91 Ariz. 101, 370 P.2d 261. Petitioner's conviction and sentence of death was affirmed. Petitioner then sought a writ of certiorari from the Supreme Court of the United States to review that decision. Certiorari was denied and petitioner then filed a petition for writ of habeas corpus in the United States District Court. The petition stated no specific grounds for the issuance of a writ of habeas corpus bur incorporated by reference a copy of petitioner's motion for a rehearing in the Arizona court and a copy of the certificate of stay of execution which he obtained from the supreme Court of Arizona pending his application for certiorari in the United States Supreme Court. The petition for writ of habeas corpus recites that 'The specific facts supporting this contention are stated in' the exhibits mentioned. Neither of those exhibits contains any statement of fact which would support or warrant the issuance of a writ of habeas corpus.

It further appears that petitioner attached to his petition for a writ of habeas corpus a copy of his petition for writ of certiorari filed in the Supreme Court of the United States which contains a so-called 'Summary Statement Of The Matter Involved'. In this are listed, under the headings 'A' to 'G' inclusive, what are called 'The principal questions involved on said appeal' to the Supreme Court of Arizona. Here are listed certain alleged errors of the trial court which were not corrected by the Arizona Supreme Court. These include alleged errors in permitting the case to be tried by the wrong Superior Court judge; denial of inspection of certain documents and statements of the defendant; denial of a change of venue due to alleged bias and prejudice in the community; denial of the defendant's challenge to the panel; denial of a new trial on the ground that the verdict was contrary to the weight of the evidence; denial of a new trial on the ground that the facts did not warrant the death penalty; errors in the court's instructions respecting defendant's confession. None of these relate to any denial of any constitutional or other federal right of the petitioner.1

In his petition for the writ of certiorari, petitioner recited that of these claimed errors 'two are notably outstanding.' One of these was the denial of his application for a change of venue which he says was supported by copies of the newspaper circulated in the county where he was tried. Another error which he said was outstanding was the alleged failure of the trial court to give an instruction as to the voluntariness of the confession, and as to whether, if it was voluntarily given it was true. He complains of the Arizona Supreme Court's discussion of this question in which it suggested that the statement was merely an admission and not a confession.2

In his jurisdictional statement to the Supreme Court of the United States petitioner said that he had 'specially claimed under the Constitution of the United States a title, right, privilege or immunity'; but, in listing the so-called federal question sought to be reviewed he merely listed the same errors previously mentioned adding a denial of a separate preliminary hearing, a denial of bail, a charge that the county attorney in his closing argument improperly stated that 'if the defendant received a life sentence in Arizona it would mean from 10 to 12 years. This is an invasion by the judiciary on the legislative or executive function.' He then concluded that in affirming the conviction and the decision of the trial court, the Supreme Court of Arizona denied petitioner 'due process and equal protection of the law.'

A reading of the petition for the writ of habeas corpus with the other papers mentioned convinces me that petitioner's counsel are laboring under a serious misapprehension as to the function of the federal court in dealing with such a petition for the writ of habeas corpus on behalf of a state prisoner. A federal court's jurisdiction to issue such a writ is strictly Limited. The only occasion for granting such a writ is stated in sub-paragraph (c)(3) of 2241, Title 28, as follows: 'The writ of habeas corpus shall not extend to a prisoner unless-- * * * (3) He is in custody in violation of the Constitution or laws or treaties of the United States.' A second limitation is found in 2254 of Title 28 where the first paragraph of the section reads as follows: 'An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.'

Neither of these requirements are satisfied here. The limitation upon a federal court in the case of a state prisoner was long ago spelled out in simple language by this court in Sampsell v. People of the State of California, 9 Cir., 191 F.2d 721, 725, as follows: 'Our function in this type of proceeding is not to correct errors committed in a state trial court. * * * Federal courts must withhold interference with the administration of state criminal justice unless a federal right has been violated."3

It is plain to me that no question of denial of a federal constitutional right was ever raised in the state court; that no such question was presented in the application of certiorari, and no ground for relief by way of habeas corpus was stated in the petition to the court below. Accordingly, a certificate of probable cause is denied, and a stay of execution is also denied.



With respect ot the complaint about a refusal to permit petitioner to inspect his written confession, see Cicenia v. Lagay, 357 U.S. 504, 510, 78 S.Ct. 1297, 2 L.Ed.2d 1523


The opinion of the Supreme Court of Arizona Indicates that petitioner did not confess guilt but claimed that he stabbed the deceased in self-defense and admitted he took the deceased's wallet after the stabbing


In that case this court held taht remarks by the district attorney at the appellant's trial, similar to those complained of in the matter now before me, did not raise a due process question



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