People v. Raten

Thornton, J. The defendant was convicted of the crime of murder in the first degree, committed on one James Lansing, and adjudged to suffer the death penalty. He moved for a new trial which was denied. From the order denying his motion for a new trial, and the judgment, he prosecutes this appeal.

Several questions were discussed on the argument arising on the instructions given by the court below, which we are called on to consider and determine.

1. The court directed the jury as follows:—

“ Upon a trial for murder the commission of the homicide by the defendant being proved, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable, and this he may show by preponderance of evidence merely.”

It is urged that this direction is .erroneous, because it deprives the defendant of the doctrine of reasonable doubt. We have to say in reply to this that the jury was fully and correctly instructed upon the question of reasonable doubt, and that the [423]instruction above given was approved by this court in Bank in People v. Hong Ah Duck, 61 Cal. 387.

2. Our attention is called to the following direction to the jury: —

“ If the act of killing be preceded by a concurrence of will, deliberation, and premeditation on the part of the slayer, the killing is murder of the first degree, and no matter how rapidly these acts of the mind may succeed each other, or how quickly they may be followed by the act of killing. But if you find the defendant guilty of murder, and still are not convinced beyond all reasonable doubt that such murder was accompanied or characterized by some one of the circumstances just explained as indicative of murder of the first degree, you can find him guilty of murder of the second degree only.”

Counsel for defendant in regard to this portion of the charge says: “While the jury were instructed as to the requisites of murder of the first degree in the first clause of the above instruction, they were in the second clause instructed, that to reduce the offense to murder of the second degree, two or more of the requisites of murder of the first degree must be wanting”; and then proceeds to argue that the instructions are contradictory, and that they misled the jury to the prejudice of the defendant.