People v. Tansey

COOPER, P. J.

The defendant was accused by the information of the crime of murder in the unlawful killing with malice aforethought of one McCartney in the city and county of San Francisco on the third day of September, 1907. The jury returned a verdict finding him guilty of manslaughter, and judgment was accordingly entered. This appeal is from the judgment and the order made by the court denying defendant’s motion for a new trial.

The main contention of the defendant is that the court erred in giving to the jury the following instruction: “The court instructs you that if, from all the evidence in the case and the law applicable thereto, you should be satisfied to a moral certainty and beyond all reasonable doubt that the defendant here is guilty of any offense under the law, and within the information in this case, you may find him guilty as follows: you may find the defendant guilty of murder in the first degree; or you may find the defendant guilty of murder in the second degree; or you may find the defendant guilty of the crime of manslaughter.”

The argument is based upon the statement that the evidence clearly shows that the person who killed McCartney was guilty of willful and deliberate murder without any provocation or

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any extenuating circumstances, and that the only question for the determination of the jury was the question as to the identity of the defendant, or in other words, whether or not defendant was the party who did the killing. It is said with much plausibility that the giving of such an instruction in a ease where there is no question about the fact that the killing was deliberate murder, but the sole question is as to whether or not the defendant is the party who did the killing, would in many cases result in a compromise verdict when, but for such instruction, the jury would never have agreed upon a verdict.

It will be sufficient to decide such question when it is squarely presented by the record. In this case it is a sufficient answer to the contention to say that the record contains evidence which justifies the verdict of manslaughter. Indeed, if the jury believed defendant and the testimony he gave when upon the stand, it had the right to conclude that the killing was the result of sudden passion and in the heat of blood caused by the acts of deceased and the personal violence committed by deceased upon'defendant. The defendant testified as follows: “As Bell and I were crossing Shotwell street on our way, two police officers met us. We were just walking along the street and were not making any noise or disturbance of any kind. The police officers got hold of us by the coat collars and shoved us along the street. The officer in the blue uniform had a hold of me and butted me in the back with something—I thought it was a