People v. Lewis

[511]

PRESTON, J.

Appellant was convicted of murder in the first degree and sentenced to suffer the death penalty. He appeals from the judgment of conviction and order denying his motion for new trial.

The record is singularly free from error and the appeal presents no ground for reversal of the judgment. Evidence was offered by the prosecution to prove that the murder was deliberate, premeditated and accomplished in an attempt to perpetrate a rape, at a time when appellant was sober and in possession of his faculties. Appellant claims that he made no attempt to commit rape but struck the fatal blow without the deliberation necessary to first degree murder (see. 189, Pen. Code), his act being “that of a drunken man—unreasoning and without cause”. Appellant also, in effect, asks us to overrule, or hold here inapplicable, the doctrine long established in this jurisdiction, that to constitute murder of the first degree, there need be no appreciable space of time between the intention to kill and the act of killing.

(People

v.

Donnelly,

190 Cal. 57 [210 Pac. 523]; 13 Cal. Jur., p. 598, sec. 15, and many cases cited.)

This argument requires no discussion in view of the fact that there is in the record ample evidence to support the verdict, either on the ground that the killing was wilful, deliberate and premeditated, or that it was committed in an attempt to perpetrate rape. There is also persuasive evidence of appellant’s sobriety at the times in question. A brief statement of fact will serve as a basis for this conclusion :

Appellant, a colored man, fifty-one years of age, and a colored woman living with him and passing as his wife, resided at Mayfield, Palo Alto, California, in a shack at the rear of premises occupied by Mrs. Wright, also colored and a sister of the deceased. The crime was committed on February 4, 1933, in the evening. On that day appellant spent the time from about 9 o’clock in the morning until between 4 and 5 in the afternoon, in making a trip by automobile from Palo Alto to Oakland, and return, in the company of a colored friend and his son. These parties performed respective errands in and around Oakland and there purchased a pint or more of whisky, which was partially con