People v. Petro

MARKS, J.

By an information filed by the district attorney of San Diego County, defendant was charged with the crime of murder in the first degree. He was tried before a jury which returned a verdict of guilty of murder in the first degree and fixed his punishment at confinement in the penitentiary for life. Judgment was pronounced in accordance with this verdict. From this judgment defendant has appealed.

Defendant and one James White, a negro, were employed on a hog ranch near El Cajon, California, by Margaret Catherine Geer, the deceased. They planned to rob the deceased and on September 17, 1935, in the perpetration of the robbery James White struck Mrs. Geer over the head, knocking her unconscious. According to defendant’s own testimony, White tied Mrs. Geer up, sent defendant out to the road as a lookout, searched the premises, and when the task was complete they took a garbage truck and drove to Los Angeles. Some personal property was taken from the premises. On September

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18, 1935, defendant mailed a letter from Los Angeles to the El Cajon police department directing it to send officers to the Geer hog ranch. Upon arrival at the ranch officers found Mrs. Geer had died from the blow delivered by White and that the house had been ransacked. White has not been apprehended. Defendant claims that he participated in the crime through fear of his life induced through threats made to him by White. The evidence does not support this contention.

The sole ground relied upon for reversal of the judgment is that the trial court committed prejudicial error in giving the following instruction: “You are instructed that the charge in this case- is murder, which may be punishable by death, and it is no defense to the charge of murder that the defendant, Paul D. Petro, claims that he committed any act or made any of the omissions charged, under threats or menaces.”

This instruction is based upon section 26 of the Penal Code, which provides in part: “All persons are capable of committing crimes except those belonging to the following classes: . . . Eight. Persons (unless the crime be punishable with death) who committed the act or made the omission charged under threats or menaces sufficient to show that they had reasonable cause to and did believe their lives would be endangered, if they refused.”