People v. Smith

WHITE, J.

The defendant, who was charged with the crime of murder, was convicted of murder in the first degree. The jury, which returned the verdict of guilty, recommended that the defendant be sentenced to life imprisonment. The trial court denied defendant’s motion for a new trial and pronounced judgment whereby defendant was sentenced to life imprisonment. From the judgment, sentence, and from the court’s order denying his motion for a new trial, defendant appeals.

Appellant contends that the evidence is insufficient to sustain the verdict of murder in the.first degree. Examination of the record impels the conclusion that appellant was properly convicted of murder in the first degree. The transcript shows that evidence was submitted to the jury which tended to prove that the deceased was a roomer in

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the home of appellant; that about 1:30 on the afternoon of the homicide, deceased was seen running out of appellant’s house; that after he had traveled about twenty feet, appellant appeared in the doorway, and simultaneously therewith a shot was fired. It was further shown that deceased received a gunshot wound in the small of the back, from the effects of which he died some five weeks later. It was also testified that a short time after the shot was fired, the deceased was seen getting up from the ground, while appellant was standing over him. The latter held a gun in his hand. There was also evidence that after the deceased got to his feet, appellant pointed the gun at deceased’s back, and the two men walked back into the house. Some five minutes later, appellant was observed to drag deceased out of the house and throw him “into the curbing”. Appellant stood over deceased with a gun in hand, saying to deceased, “Get up and walk,” to which the deceased replied, “I can’t walk. You will kill me.” When the officers arrived, appellant, with a gun in his hand, was still standing over deceased. When taken from appellant by the officers, the gun contained five loaded cartridges and one empty cartridge. The smell of freshly burned powder indicated that the gun had recently been fired, which fact was affirmed by appellant in the presence of the officers. When, in the presence of appellant, the deceased accused the former of having shot him, appellant remained mute.

The above recital of evidence which was introduced during the trial demonstrates the futility of appellant’s contention that the offense of which he was guilty was less serious than that of which he was convicted, and also negatives his claim that while defending himself from attack by the deceased, and while the latter was in possession of the gun, the weapon was accidentally discharged during a scuffle for its possession. The principle is well established that express evidence of a deliberate purpose to kill is not required to warrant a verdict of guilty of murder in the first degree. The necessary element of premeditation may be inferred from proof of such facts and circumstances as will furnish a reasonable foundation for such an inference.