People v. Anderson

WASTE, C. J.

In an indictment containing two counts the defendant was charged with murder and robbery. Upon his arraignment he entered a plea of not guilty to each charge. The jury found him guilty on both counts. The verdict on the murder count fixed the degree as of the first and was returned without recommendation. It therefore carries with it the extreme penalty. Defendant has appealed from the judgment and from the order denying his motion for a new trial.

The evidence shows that during the months of November and December, 1933, the defendant engaged in a series of robberies in the city and county of San Francisco, in each of which robberies a gun was employed. Three of these offenses preceded the homicide and robbery, of which defendant stands convicted. On the evening of November 28,

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1933, between the hours of 6 and 8 o’clock, the defendant approached the ticket office of the Curran theater with the intent, as he freely admitted while on the stand in his own defense, of perpetrating a robbery. When approximately two feet from the ticket office he drew an automatic revolver from its place of concealment in his clothes. He testified that the gun was discharged as he “was just going to put it up in the cage”; that he had “just cleared the gun over the railing when it went off”. In explanation of the firing of the gun he testified: “I suppose I must have pulled the trigger; I don’t remember . . . how it happened.” As a result of the discharge of the weapon the deceased, who was in the ticket office, was shot through the chest. He died from the wound and the resulting hemorrhage. Defendant immediately fled the scene of the shooting in a taxicab. He proceeded directly to the Koffee Kup restaurant, where he held up the cashier and robbed the cash register of approximately sixty dollars. He stands convicted of this offense as well as of the homicide growing out of the attempt to rob the Curran threater. Within the next succeeding twenty days he perpetrated three other robberies. He was apprehended on December 18, 1933, after a bank robbery and was subdued and captured following a gun duel with the police, in which one officer was shot. While on the stand he admitted, without objection, these several offenses.

The law is well settled that a homicide committed in the perpetration of robbery or in an attempt to perpetrate robbery is murder in the first degree. (Pen. Code, see. 189.) In such cases the law conclusively presumes premeditation and the legislature has declared that they shall be deemed and held to be murder in the first degree.