People v. Moreno

[481]

WASTE, C. J.

Following his trial on a charge of murder, found by the jury to have been murder of the first degree, the defendant was sentenced to pay the extreme penalty, the verdict being without recommendation. He prosecutes this appeal from the judgment and from the order denying his motion for a new trial. His sole contention upon appeal is that the evidence is insufficient to support the judgment and that the admitted killing was perpetrated in self-defense.

We have examined the entire record and it is our conclusion that the evidence is not such as to warrant a verdict of murder of the first degree or to justify the infliction of the death penalty. However, we are not prepared to accept the defendant’s contention that the homicide was perpetrated in self-defense and was therefore justifiable. Instead, and motivated solely by a desire to prevent the destruction of human life on evidence that lacks certainty as to the circumstances leading to the homicide and an admitted inability on our part to accurately and definitely ascertain therefrom the facts as they actually existed immediately prior to and at the time of the homicide, we prefer to take a middle ground, well supported in authority, and to characterize the offense as murder of the second degree. We now possess the necessary jurisdiction to reduce the degree of an offense, when the evidence requires such a course, and to direct the entry of judgment accordingly without ordering a new trial. (Section 1181, Pen. Code;

People

v.

Kelley,

208 Cal. 387, 391 [281 Pac. 609];

People

v.

Howard,

211 Cal. 322, 330 [295 Pac. 333, 71 A. L. R. 1385].)

The uncertain state of the record now before us is well exemplified by, and some support for our conclusion is found in, the frank admission appearing in the brief of the attorney-general “that the prosecution introduced evidence in its case which tended to show that the appellant killed the decedent in self defense”. He points out, however, that the jury might, and apparently did, reject this particular evidence, electing to base its verdict on other evidence which he asserts supports its action.