People v. Dale

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THOMPSON, J.

The defendant was accused by information filed by the district attorney of San Joaquin County of the crime of murder. To this charge he pleaded not guilty and not guilty by reason of insanity. The jury found him guilty of murder in the first degree, without recommendation, and sane. Prom the judgment and from an order denying his motion for a new trial, the defendant prosecutes this appeal.

The contentions advanced by appellant are as follows: (1) That the record is insufficient to prove that the killing was wilful, deliberate and premeditated; (2) that the district attorney was guilty of misconduct; (3) that the deputy sheriff submitted misleading statements to newspapers to such an extent that it was impossible to have a fair and impartial trial, and (4) that appellant’s mental condition is such that this court ought to modify the judgment. We shall dispose of the contentions in the foregoing order.

We are unable to agree with ap¡oellant that the evidence is insufficient to justify a verdict of murder in the first degree. Without reciting all of the details, it appears that appellant was a well-known nomad who, from his proclivity for riding freight trains from coast to coast, was nicknamed “West Coast”. On the evening of September 7, 1935, he was one of several hoboes sitting around a fire in the jungle near the railroad yards in Stockton. During the course of the evening, in response to an admonition from someone that, for fear they would be run out, they had better keep quiet, the appellant brandished a razor or knife, with the remark that he “would like to see anybody mess with” him, or “Nobody wants to bother with me, monkey with me here.” It also appears that during the evening he smoked some marihuana. He was the last to leave the fire. Some time after 12 o’clock midnight, the appellant, according to his own testimony, started for a box car, with his bed roll on his shoulder and some cooking utensils in a blue bag, with the intention of going to sleep. On the way he met the deceased, an officer of the city of Stockton, employed by the Western Pacific Railroad Company, who flashed a light, carried in his right hand, in appellant’s face. Still giving the substance of appellant’s

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