People v. Bawden

McFarland, J. The appellant was convicted of murder in the first degree, and was sentenced to suffer the death penalty, and he appeals from the judgment, from an order denying a new trial, from an order denying his motion in arrest of judgment, and also from an order denying his motion “to dismiss the information and all subsequent proceedings.”

1. The first contention of appellant is, that the court erred in giving the following instruction: “If you find from the evidence, and beyond a reasonable doubt, that, at the time and place mentioned in the information, the defendant did then and there willfully, deliberately, and with premeditation, murder one Lillie M.. Price, then your verdict should be murder in the first degree.”

The main criticism of this instruction is, that it “ leaves out the element of malice aforethought.” But- in this instruction the court was not giving a definition of murder. That it had done very fully in previous instructions, and had told the jury that murder was “ the unlawful killing of a human being with malice aforethought,” [197]and bad given the statutory definitions of malice. In the instruction under review, it was therefore not necessary to repeat the definition of murder. It is true that a court should be very careful in framing an instruction which concludes with the words “then your verdict should be murder in the first degree ”; but in this instance the court merely said that such result should follow if the defendant murdered the deceased willfully, deliberately, and with premeditation. In this language no error can be,detected. The code provides that such kind of murder is murder of the first degree. In the cases cited by appellant (People v. Gibson, 17 Cal. 283; People v. Woody, 45 Cal. 289; People v. Ah Lee, 60 Cal. 85) the jury had been instructed that from the mere hilling of the deceased the law presumed murder in the first degree. In People v. Hunt, 59 Cal. 433, the court had given an instruction to the effect that if the deceased died from a wound inflicted by defendant with malice aforethought, the jury should convict him of murder; the appellant contended that the instruction should have informed the jury of which degree of murder the defendant should be convicted; and this court, of course, held that no such proposition should have been included in that instruction. Hone of the other cases cited are in point.