People v. Waysman

CHIPMAN, P. J.

Defendant was informed against for the crime of murder, and upon his trial was convicted by the

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jury of murder in the second degree and was sentenced to-imprisonment for fifteen years. Pie appeals from the judgment. The evidence taken in the case is not before us. The-errors complained of relate exclusively to certain indicated instructions, given or refused by the court.

1. The court instructed the jury as follows: “The word ‘malice’ imports a wish to vex, annoy, or injure another person, or an intent to do a wrongful act, established either by proof or presumption of law.”

It is contended that the malice which enters into the crime of murder, as an essential element thereof, and as referred torn sections 187 and 188 of the Penal Code, is something more-than malice which simply “imports a wish to vex, annoy, or injure another person”; thát the malice stated in the instruction could be predicated of a very trivial act which would wholly fail to manifest “a deliberate intention unlawfully to take away the life of a fellow-creature”; or from which it might be implied that “no considerable provocation appears,” or which would fail to show “an abandoned and malignant heart.” (Civ. Code, sec. 188.) If the jury had. been left to be guided alone by this instruction as to what would constitute malice when applied to the charge of murder,, we should be inclined to hold it prejudicial. The instruction is taken from section 7 of the same code, where certain terms, are defined in the senses in which they are used in this code.. The word “malice” is there given the meaning above defined, “unless otherwise apparent from the context”; and where-used in defining the crime of murder it does mean something more than the word imports as defined in section 7. We do not think the definition found in section 7 appropriate in a case of this kind, and would be better omitted altogether. It. was given, however, in

People

v.

Dice,

120 Cal. 189, [52 Pac. 477], which involved the crime of murder, in connection with the definition of ma-lice as found in section 188, and the same-objection was made as is now urged. The court said: “We-think the complaint unfounded. The court but instructed the jury as to the general import of the word ‘malice,’ and immediately and in the same connection specifically defined the word when used in the code as an element of the crime-of murder.”