25. When killing has been proved-Law will imply malice, and it then devolves on the defendant to show that he did it in self-defense, or some circumstances showing justification.-People v. March, 6 Cal. 543, 544, 547; People v. Abbott, 2 Cal. Unrep. 383, 4 Pac. 769, 772. 26. Homicide being admitted or proved, law raises presumption of malice.-People v. Hong Ah Duck, 61 Cal. 387, 395. See People v. Milgate, 5 Cal. 127. 27. Same-Burden of proof upon defendant. When unlawful killing is proved, malice is presumed, and burden of proving absence or want thereof is on defendant. -People v. Abbott, 2 Cal. Unrep. 383, 4 Pac. 769, 772. 29. V. As to accidental killing.-Where in a case of homicide the defense is an accidental killing and the instructions taken as a whole are as favorable to the defendant as the law will permit a verdict of guilty will not be set aside because of too general statements contained in a vague and meaningless instruction.-People Garnett, 9 Cal. App. 194, 205, 98 Pac. 247. 30. As to aiding and abetting-Harmless error.-Instruction that if the jury believes beyond a reasonable doubt that the defendant was present aiding and abetting in the commission of an unlawful act, and that in the commission of said unlawful act deceased was killed, it would be their duty to bring in a verdict of guilty in the first degree is abstractly erroneous but is without prejudice where the only unlawful act in evidence was the deliberate attempt to kill the deceased, and it appears from other parts of the charge that the court intended the words "aiding and abetting an unlawful act" to refer to the act of murder shown in the evidence.-People v. Petruzo, 13 Cal. App. 569, 577, 110 Pac. 324. 31. As to conspiracy.-Where evidence showed defendant was one of several conspirators, who were prepared to go to any extent to carry out unlawful design, having so agreed, and that deceased was killed during carrying out of such design, it is proper to charge jury, in effect, that if such conspiracy existed, if same was established beyond reasonable doubt, and that deceased was killed by shot fired in furtherance of such design, then jury should find defendant guilty, notwithstanding they may have doubt as to whether defendant actually fired fatal shot.-People v. Cowan, 1 Cal. App. 411, 414, 82 Pac. 339. 32. As to dazed condition of defendant at time of murder committed, said to have been caused by blow on head administered by son of deceased, was properly refused, in absence of evidence showing that his condition was not such as to amount to insanity.-People V. Worthington, 122 Cal. 583, 586, 55 Pac. 396. 33. As to malice held not erroneous.People v. Abbott, 2 Cal. Unrep. 383, 4 Pac. 769, 771; People v. Wright, 93 Cal. 564, 566, 29 Pac. 240; People v. Dice, 120 Cal. 189, 201, 202, 52 Pac. 477; People v. Mendenhall, 135 Cal. 344, 347, 349, 67 Pac. 325; People v. Glaze, 139 Cal. 154, 164, 72 Pac. 965; People v. McRoberts, 1 Cal. App. 25, 29, 81 Pac. 734, 736. 34. Instruction as to definition of "malice," found in section 7, this code, is not appropriate in defining crime of murder, and would better be omitted.-People v. Dice, 120 Cal. 189, 52 Pac. 477; People v. Waysman, 1 Cal. App. 246, 248, 81 Pac. 1087. 35. Instruction that malice aforethought is manifested by doing of unlawful, felonious act intentionally, and without legal cause or excuse, not necessarily implying pre-existing hatred or enmity toward individual injured, is correct statement of law. People v. Fallon, 149 Cal. 287, 289, 86 Pac. 689. § 189. DEGREES OF MURDER. All murder which is perpetrated by means of poison, or lying in wait, torture, or by any other kind of wilful, deliberate, and premeditated killing, or which is committed in the perpetration or attempt to perpetrate arson, rape, robberty, burglary, or mayhem, is murder of the first degree; and all other kinds of murders are of the second degree. History: Enacted February 14, 1872, founded on § 21 Criminal Practice Act (Stats. 1850, p. 231), as amended April 19, 1856, Stats. 1856, p. 219; amended March 30, 1874, Code Amdts. 1873-4, p. 427. DEGREES OF MURDER. 3. Distinction-Between murder in first and second degrees. 4. Drunkenness of offender-Can form no legitimate matter of inquiry, when. 5. Same Condition of prisoner, as drunk or sober-Proper to be considered, when. 6. Same-Drunken person may act with premeditation. 7. Same-Is immaterial in case of pre- 8. Same-When occasioned by fraud. 10. Intent-In homicide committed with 11. Same-Inferred from circumstances. 12. Same-May be inferred from firing a loaded pistol. 13. Same-Presumed from unlawful act. 14. Same-To kill, must be formed de liberately. 15. Same-Same-Need not exist for a day or an hour. 16. Same-Same-Intent formed at instant of killing. 17. Same-To take life, must be clear. 18. Same-Whether homicide amounts to murder or manslaughter. 19. Same-Same-Person may be convicted of murder, when. 20. Killing-Constitutes murder when. 21. Same-Preceded by concurrence of will. 22, 23. Same-Where done in perpetration of felony. 24. Same Third person-By mistake, murder, when. 25. Murder-In first degree. 26, 27. Same-Same-Committed in perpetration of or attempt to commit ful," meditated." 57. Same Judicial knowledge that crime was perpetrated. 58, 59. Same-Of former quarrel. 60. Same-Tending to show altercations 61. Same-Upon question of relation be- 63, 64. Lying in wait-Statement made by confederate. 65. Means adopted for unlawful killing. 66, 67. Mitigation of punishment—Previous good character. 68. Premeditation-Evidence of. 70. Same-Same-Evidence of threats 71. Same Evidence which 72, 73. Same Same Previous threats of defendant against deceased. 74. Same-Same-Threats against persons other than deceased. 75. Presence of defendant at time of 76. Previous assaults upon wife. 78. Same-Must determine as to wilful, 79. Same-Must determine whether evidence amounts to proof of fact. 80. Same-Question as to wilfulness, deliberation, and premeditation. 81. Same-Question of deliberation and premeditation. 82. Same-Question whether prisoner is guilty of murder in first or second degree. IV. INSTRUCTIONS TO JURY. 83. Instructions held erroneous-Charge which is erroneous in part. 84. Same-As to crime of murder which ignores question of deliberation. 85. Same As to distinction between murder in first and second degrees. 86. Same As to intent in commission of felony. 87. Same-As to evidence of character. 88. Same As to the degree of murder. 89. Same That from mere fact of killing law presumes slayer guilty, etc. 90. Same-Weakness of mind, etc., produced by violence of deceased. 91. Same Same-Instruction defining murder in second degree. 92. Instruction held not erroneous-A charge that any kind of unlawful, etc., killing is murder in first degree. 93, 94. Same-As to degrees of murder. 95. Same-As to distinction between murder in second degree and manslaughter. 96. Same As to drunkenness as bearing upon question of purpose. 97. Same-As to intent. 98. Same As to insanity. 99. Same-As to intention of committing unlawful act. 100. Same-As to killing of third person in attempt to commit felony. 101. Same-As to malice, deliberation, etc. 102. Same-As to murder committed by parties engaged in robbery. 103. Same As to murder in first degree, and necessary elements. 104. Same-As to space of time between intent and act. 105. Same-As to threats after reconciliation between parties. 106. Same As to whether offense committed constitutes murder in first or second degree. 107. Same As to word "felonious," used in instruction. 108. Given in language of section. 109. Word unlawful' defined. 110. Instruction properly refused. 111. Same-As to drunkenness as an excuse for crime. 112. Same As to murder in burglary, or attempt to commit burglary. 113. Same-As to seduction of wife as provocation. 114. Same-As to threats. 115, 116. Instructions erroneously refused— As to intoxication. See, also, notes, §§ 187, 188, ante. I. IN GENERAL. 1. Construction of section.-This is not meant to apply only to such a murder as would be included in the scheme of robbery and planned as a part of the execution of that crime.-People v. Bostic, 167 Cal. 754, 141 Pac. 380. .2. Where death results from the performance of an unlawful abortion the crime is murder in the second degree.-People v. Wright, 167 Cal. 1, 138 Pac. 349. 3. Distinction-Between murder in first and second degrees is, that, in murder in first degree, unless it is committed in perpetration or attempt to perpetrate arson, rape, robbery, or burglary, killing must be deliberate and premeditated, while in murder in second degree killing is not deliberate or premeditated. In one case there is deliberate, premeditated, preconceived design, though formed immediately before mortal wound is given, while in other there is no deliberation, premeditation, or preconceived design, although in both killing must have been unlawful and accompanied with malice.-People v. Long, 39 Cal. 694, 696. See People v. Sanchez, 24 Cal. 17, 28; People v. Foren, 25 Cal. 361; People V. Nichol, 34 Cal. 211, 214; People v. Mahatch, 148 Cal. 200, 202, 82 Pac. 779. 4. Drunkenness of the offender-Can form no legitimate matter of inquiry as between two offenses of murder in second degree and manslaughter, as, where killing is voluntary, offense is necessarily murder in second degree, unless there was provocation sufficient at common law to constitute manslaughter.-People v. Langton, 67 Cal. 427, 429, 7 Am. Cr. Rep. 439, 7 Pac. 843. See People v. Belencia, 21 Cal 544, 546; People v. Nichol, 34 Cal. 211, 215. As to drunkenness as affecting degrees of guilt generally, see, ante, § 22 and note. 5. Same-Condition of prisoner, as drunk or sober-Proper to be considered upon question of premeditation and in fixing degree of crime.-People v. Williams, 43 Cal. 344, 352; People v. Methever, 132 Cal. 326, 332, 64 Pac. 481. See People v. Lewis, 36 Cal. 531. man, and is equally responsible for consequences of his act.-People v. Belencia, 21 Cal. 544, 547; People v. Williams, 43 Cal. 344, 352. 8. Same-When occasioned by fraud, contrivance, or force or some other person for purpose of causing perpetration of an offense, may be excuse for crime.-People v. Nichol, 34 Cal. 211, 215. 9. Homicide in committing robberyMurder in first degree, under above section, regardless of any question as to whether the killing was intentional or unintentional. -People v. Denman, 179 Cal. 497, 177 Pac. 461. 10. Intent-In homicide committed with design to commit felony, law superadds intent to kill to original felonious intent, and estops criminal from denying further intent imputed.-People v. Olsen, 80 Cal. 122, 127, 22 Pac. 125. 11. Same-Inferred from circumstances. -Intent may be inferred from the circumstances.-People V. Bealoba, 17 Cal. 389, 399; People v. Munn, 65 Cal.' 211, 215, 6 Am. Cr. Rep. 431, 3 Pac. 650. 12. Same-May be inferred from firing a loaded pistol.-People v. Bealoba, 17 Cal. 389, 399; People v. Langton, 67 Cal. 427, 428, 7 Am. Cr. Rep. 439, 7 Pac. 843; People v. Lee Kong, 95 Cal. 666, 29 Am. St. Rep. 165, 17 L. R. A. 626, 30 Pac. 800. 13. Same-Presumed from unlawful act. -Intent is presumed from perpetration of unlawful act.-People v. Hunt, 59 Cal. 430, 433. 14. Same-To kill, must be formed deliberately and with premeditation, but when so formed there need be no appreciable time between intent and act.-People v. Suesser, 142 Cal. 354, 364, 75 Pac. 1093. 15. Same-Same-Need not exist for a day or an hour.-Intent to kill, or premeditation, need not exist for a day or an hour, or even a minute.-People v. Pool, 27 Cal. 572, 587. 16. Same-Same-Intent formed at instant of killing.-To constitute murder in the first degree, crime must be premeditated, wilful, and deliberate, and intent must exist, but it may be inferred from circumstances, as the use of weapon calculated to produce death, yet it need not have existed for any given length of time before fatal blow, and it is sufficient, the killing being unjustified or inexcused by circumstances, that intent to kill, if it be formed at instant of killing, or doing of act from which death ensues. People v. Bealoba, 17 Cal. 389, 399. See People v. Foren, 25 Cal. 361, 365; People v. Doyell, 48 Cal. 85, 95, 97; State v. Ellsworth, 30 Ore. 145, 156, 47 Pac. 199; People v. Calton, 5 Utah 451, 459, sub nom. Territory v. Catton, 16 Pac. 902. See pars. 21, 31, 97, this note; also note, 18 Am. Dec. 778-786. 17. Same-To take life, must be clear, in order to constitute murder in first de gree.-People v. Foren, 25 Cal. 361, 365. See People v. Bealoba, 17 Cal. 389, 395; People v. Sanchez, 24 Cal. 17; Commonwealth v. Green, 1 Ashm. (Pa.) 296. 18. Same-Whether homicide amounts to murder or manslaughter merely, does not depend upon presence or absence of intent to kill, as in either case there may be present intention to kill at moment of commission of act.-People v. Crowey, 56 Cal. 42; People v. Freel, 48 Cal. 436. 19. Same-Same-Person may be convicted of murder or of assault, though no specific intent may exist to commit crime of murder or assault upon party charged.People v. Keefer, 18 Cal. 636, 38. 20. Killing-Constitutes murder, when.— Unlawful killing must be accompanied by deliberate and clear intent to take life, in order to constitute murder in first degree.People v. Nichol, 34 Cal. 211, 214. 21. Same-Preceded by concurrence of will, deliberation, and premeditation on part of slayer is murder in first degree, no matter how rapidly these acts of mind may succeed each other or how quickly they may be followed by act of killing. "There need be no appreciable space of time between the intent to kill and the act of killing."People v. Sanchez, 24 Cal. 17, 30; People v. Foren, 25 Cal. 361, 365; People v. Pool, 27 Cal. 572, 587; People v. Nichol, 24 Cal. 211, 214; People v. Long, 39 Cal. 694, 697; People v. Williams, 43 Cal. 344, 351; People v. Doyell, 48 Cal. 85, 95, 97; People v. Hunt, 59 Cal. 430, 435; People v. Suesser, 142 Cal. 354, 364, 75 Pac. 1093. See pars. 16, 31, 97, this note. 22. Same-Where done in perpetration of felony or attempt to perpetrate felony, mentioned in statute, murder in first degree may be committed, though no intent existed to kill at time of fatal blow, as if criminal shot at deceased for purpose of disabling him, or the like.-People v. Bealoba, 17 Cal. 389, 399. 23. Where killing is result of commission of or attempt to commit felony, whether named in this section or not, law attaches felonious intent accompanying crime contemplated by act of killing, even though accidental, and constitutes it murder.-People v. Olsen, 80 Cal. 122, 126, 22 Pac. 125. See People v. Foren, 25 Cal. 361, 364. 24. Same-Third party-By mistake, when murder. Where intention is to kill a party, but by mistake or inadvertence a third person is killed, homicide SO committed amounts to murder in first degree, as much as though fatal blow had been given to party intended.-People v. Suesser, 142 Cal. 354, 366, 75 Pac. 1093. See State v. McGonigle, 14 Wash. 594, 45 Pac. 20. See People v. Keefer, 18 Cal. 636; People v. Olsen, 80 Cal. 122, 126, 22 Pac. 125; People v. Craig, 111 Cal. 460, 470, 44 Pac. 186; State v. Raymond, 11 Nev. 98; State v. Murray, 11 Ore. 413, 415, 5 Pac. 55. 25. Murder-In first degree, except that which is perpetrated by means of poison, lying in wait, etc., depends upon fact of its being wilful, deliberate, and premeditated. -Ex parte Wolff, 57 Cal. 94, 95. 26. Same-Same-Committed in perpetration of, or attempt to commit, arson, rape, burglary, or mayhem, whether intentional or unintentional, is murder in first degree no matter whether killing is wilful, deliberate, and premeditated, or absolutely accidental, element of wilfulness, deliberation, and premeditation not being indispensable. -People v. Milton, 145 Cal. 169, 171, 78 Pac. 549. See People v. Gibson, 17 Cal. 283, 284; People v. Cox, 76 Cal. 281, 285, 18 Pac. 332. 27. Murder committed in perpetrating arson, by burning of some party within building, although in belief that building was unoccupied, constitutes murder in first degree. People v. Milton, 145 Cal. 169, 172, 78 Pac. 549. in 29. Same-Same-By poison, lying wait, or committed in perpetration of arson, robbery, etc., is murder in first degree.People v. Nichol, 34 Cal. 211, 213. 30. Same-Same-Element of wilfulness. -Not necessary in every case of murder in first degree that there should be present elements of wilfulness, deliberation, and premeditation bearing upon actual intent to take human life, under provisions of code. -People v. Milton, 145 Cal. 169, 170, 78 Pac. 549. 31. Same-Same-Not necessary that any appreciable space of time should exist between intention to kill and act of killing, to constitute murder in first degree, as they may be as instantaneous as successive thoughts of the mind.-People v. Sanchez, 24 Cal. 17, 30; People v. Nichol, 34 Cal. 211, 214; People v. Long, 39 Cal. 694; People v. Williams, 43 Cal. 344, 351; People v. Jamarillo, 57 Cal. 111, 114; People v. Raten, 63 Cal. 421, 423. See pars 16, 21, this note. 32. Same-Same-Presence or absence of deliberation and malice, not character of weapon used, determines the degree of offense. People v. Crowey, 56 Cal. 36, 43. 33. Same-Same-Previous quarrel with deceased, and command to halt and threat to shoot, if unaccompanied by other circumstances would not necessarily import intent to kill.-People v. Leith, 52 Cal. 251, 252. 34. Same-In second degree-In general. -Party may not be guilty of murder in the first degree or of manslaughter as defined by statute, but yet be guilty of murder in P. C.-14 209 slaying his fellow-being with degree of malice implied, where no considerable provocation appears, or when all circumstances show malignant and abandoned heart, without any direct or express intention that blow should produce death, law imputing intent to produce natural effect and consequence of acts.-People vs. Foren, 25 Cal. 361, 366. 35. Same-Same-Instruction as to murder in first degree not required, because the instruction is to be given with reference to the facts as proved at the trial.-People v. Northcutt, Cal. App. - 189 Pac. 704, following People v. Byrnes, 30 Cal. 206. 36. Same-Same-True test between murder in first degree and second degree is: Is killing wilful?-i. e. intentional, deliberate, and premeditated-for, if it is, it is murder in first degree; and if not, it is in second degree.-People v. Nichol, 34 Cal. 211, 213. See People v. Long, 39 Cal. 694, 697. 37. Same Same Same-Word "concealed" used as synonymous with "lying in wait."-People v. Miles, 55 Cal. 207, 209. 39. Charging in words of statute.-It is sufficient to charge the crime of murder in words of statute, namely, that it was "wilful, deliberate, and premeditated."-People v. Murray, 10 Cal. 309, 310. 40. Designating the degree of murder is not bad upon that ground, although it ought not to be done; statement may be treated as mere surplusage.-People V. King, 27 Cal. 507, 512, 87 Am. Dec. 95. See People v. Nichol, 34 Cal. 211, 217; People v. Schmidt, 63 Cal. 28. 41. Designating crime as murder in the first degree is not invalid.-People v. Vance, 21 Cal. 400, 402. See People v. Dolan, 9 Cal. 576; People v. Lloyd, 9 Cal. 54, 55. 42. Need not charge the killing to be wilful, deliberate, and premeditated.People v. Murray, 10 Cal. 309, 310. 43. Indictment for murder charging the crime in first degree is sufficient.-People v. Dolan, 9 Cal. 576, 583. 44. Second degree and manslaughterIncluded under charge of first degree.-Murder in second degree and manslaughter are necessarily included under indictment for murder in first degree.-People v. Dolan, 9 Cal. 576, 583. III. EVIDENCE-ADMISSIBILITY AND SUFFICIENCY. |