People v. Milton

HENSHAW, J.

The defendant was convicted of the crime of murder in the first degree and sentenced to death. Upon his appeal he presents but one alleged error of the trial court upon which he seeks a reversal of the judgment. This alleged error lay in the court’s refusal to give the following instruction: “The court instructs you that before you can convict the defendant of murder in the first degree you must find to a moral certainty and beyond all reasonable doubt that the defendant, as a fact, intended to take the life of the deceased.

[170]

Accidental killing, even in an attempt to commit one of the felonies mentioned in section 189 of the Penal Code, is not murder in the first degree.”

While none of the evidence is presented to us with this appeal, it will be assumed from the general tenor of the instructions actually given by the court that the charge against the defendant was for a murder committed in the perpetration or attempt to perpetrate arson, rape, robbery, burglary, or mayhem. (Pen. Code, sec. 189.)

The court properly refused to give the proposed instruction. Defendant insists that in every crime of murder in the first degree there must be shown to be present the elements of willfulness, deliberation, and premeditation bearing upon the actual intent to take human life. But such is not our law of murder. The only indispensable elements of murder under our code are,—1. The unlawful killing of a human being; and 2. That this killing be done with malice aforethought. (Pen. Code, sec. 187.) This malice is present and express when a deliberate intention unlawfully to take away the life of a fellow-creature is shown, and it is also present (though implied) when the circumstances attending the killing disclose an abandoned and malignant heart. (Pen. Code, sec. 188.) In section 189 of the Penal Code three kinds or classes of murder in the first degree are specifically enumerated: 1. All murder which is perpetrated by means of poison, or lying in wait, or torture is murder in the first degree; 2. All murder which is perpetrated by any other kind of willful, deliberate, and premeditated killing is murder in the first degree; 3. All murder which is committed in the perpetration of or attempt to perpetrate-arson, rape, robbery, burglary, or mayhem is murder in the first degree. Of the first of these classes it is sufficient to note that the means adopted for the unlawful killing furnish evidence of willfulness, deliberation, and premeditation, and this is made perfectly plain by the context of the section which declares to be murder in the first degree all murder which is perpetrated by these means, or by