People v. Mendenhall

HENSHAW, J. The defendant was charged with and convicted of the crime of assault with intent to commit murder, and appeals from the judgment given against him. The court instructed the jury as follows: “Murder is the unlawful killing of a human being with malice aforethought. Such [632]malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life' of a fellow-creature. It is implied when no deliberate provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart. ’ ’ It is insisted that this instruction, while pertinent and proper in a charge upon the crime of murder, is improper and erroneous where the offense is an assault with intent to commit murder; that the charge of murder may be established in the absence of proof of an intent to kill, but that the charge of attempt to commit murder cannot be established by proof merely of implied malice. In this we think the appellant’s contention is sound, and that, in the crime charged, the court erred in instructing the jury as it did. In People v. Mize, 80 Cal. 41, 22 Pac. 80, there came under the attention of this court the following instruction: “They [the defendants] cannot be convicted of an assault to commit murder unless the evidence shows beyond a reasonable doubt that, had the prosecuting witness been killed, defendants would have been guilty of murder. If the evidence shows that, had Henry Coffey been killed, one of the defendants would have been guilty of murder, then that one should be convicted. ’ ’ This court held the instruction to be erroneous, laying down the unquestioned proposition that while, to constitute murder, the guilty person need not intend to take life, to constitute an assault with intent to murder, there must be proved the intent to take life, and though the wrongdoer’s act is such as, were it successful, it would be murder, if in truth he did not mean to kill he is not guilty of an assault with intent to commit murder: 1 Bish. Cr. Law, sec. 270; 2 Bish. Cr. Law, see. 741. In People v. Wallace, 101 Cal. 281, 35 Pac. 862, an instruction identical with the one in the case at bar was complained of, but' it was there said that, conceding the instruction to be erroneous, the defendant could not have been injured by it, as he was acquitted of the offense to which it applied. In People v. Burgle, 123 Cal. 303, 55 Pac. 998, defendant complained because the court instructed the jury upon express malice alone, properly excluding from their consideration the definition of implied malice. It was said by this court that it is doubtful whether the language of section 188 of the Penal Code should be given to the jury at all in the case of assault with intent to commit murder, and that it was inti