Ex parte Wolff

Morrison, C. J.: The petitioner is charged with the crime of murder, alleged to have been committed in the city and county of San Francisco, on the thirteenth day of October, 1880. The evidence shows, or tends to show, that the petitioner used certain drugs, and employed certain mechanical means upon the person of' one Benedicta Swenson, with the intent to procure an abortion, from the effects of which she died. The committing magistrate held the petitioner without bail, and this is an application to the Court to admit him to bail.

Article i, § 6, of the Constitution declares, that “ all persons shall be bailable by sufficient sureties, unless for capital offenses where the proof is evident or the presumption great.”

Is this a capital case, in which the proof is evident or the presumption great ? If it is not, it follows that bail should be taken. It is claimed, on the part of the prosecution, that the evidence proves that the prisoner has committed the crime of murder in the first degree, and such must have been the views taken by the Police Judge’s Court.

Section 189 of the Penal Code provides, that “ all murder which is perpetrated by means of poison, or lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration or attempt to perpetrate arson, rape, robbery, burglary, or mayhem, is murder of the first degree, and all other kinds of murder are of the second degree.”

[95]The case of the People v. Nichol, 34 Cal. 214, is an instructive one on this subject. The Court there says: “ In this class, the Legislature leaves the jury to determine, from all the evidence before them, the degree of the crime ; but prescribes for the government of their deliberations the same test which has been used by itself in determining the other two classes, to wit: the deliberate and preconceived intent to kill. It is only in the latter class of cases that any difficulty is experienced in drawing the distinction between murder of the first and murder of the second degree. The unlawful killing must be accompanied with a deliberate and clear intent to take life, in order to constitute murder of the first degree. The intent to kill must be the result of deliberate premeditation.”

This is in harmony with the statute, which makes all murder of the first degree (except that which is perpetrated by means of poison, lying in wait, etc.) depend upon the fact of its being willful, deliberate, and premeditated.