People v. Coston

BRAY, J.

Defendant was convicted of murder in the first degree, with recommendation of life imprisonment. This conviction was affirmed in

People

v.

Coston,

82 Cal.App.2d 23 [185 P.2d 632], Thereafter, he moved the superior court to vacate and set aside the judgment of conviction, claiming that the information upon which the conviction was based charged second degree murder only. This contention is made on the ground that, although the information is in the usual form and charged that the defendant “did willfully, unlawfully, feloniously and with malice aforethought murder” one White, a human being, it is insufficient because the “elements of deliberation and premeditation were entirely omitted.”

We had supposed that if there is one thing well established in the law of California, it is that the form of information for the charge of murder followed in this case is completely sufficient. That the contention made here is utterly without merit is shown by the fact that in

People

v.

Fowler,

178 Cal. 657 [174 P. 892], and again as late as 1945, in

People

v.

Mendez,

27 Cal.2d 20 [161 P.2d 929], the Supreme Court flatly held against the identical contention made by defendant. In the Mendez case, the court said (p. 23): “The defendant’s second contention is that the charge as worded in the information foreclosed a finding of anything more than second degree murder. His theory is that the court

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could not convict him of first degree murder unless the information so specified, that is, that the language defining first degree murder—willful, deliberate and premeditated— must appear as part of the charge of murder.

“Murder is defined by section 187 of the Penal Code as the ‘unlawful killing of a human being, with malice aforethought.’ The degrees of murder are defined by section 189. . . .