People v. Ward

McCOMB, J. From a judgment of guilty of murder of the second degree after trial before a jury, defendant appeals. He also appeals from the order denying his motion for a new trial.

' Viewing the evidence in the light most favorable to the People (respondent) the essential facts are:

Mr. Bradley and a friend named Slater were sitting under a pepper tree on the south side of Filbert Street in Duarte, when defendant, who knew Mr. Bradley, emerged from a store across the street, walked over and sat down in front of the two men who were talking. He listened to their conversation for approximately two minutes, then stood up, drew a revolver from his belt and put it against Mr. Bradley’s stomach. Mr. Bradley remained in a sitting position and told defendant not to do what he was doing. Defendant then pulled the trigger, wounding Mr. Bradley from which wound he died approximately 36 hours later.

Questions

First: Was there substantial evidence to sustain a judgment of guilty of second degree murder?

This question must be answered in the affirmative and is governed by this rule:

Murder of the second degree is a willful act resulting in death of a human being, characterized by the presence of malice aforethought and, at least ordinarily, by the specific intent to kill, and by the absence of premeditation and deliberation. (People v. Bender, 27 Cal.2d 164, 181 et seq. [163 P.2d 8].)

Defendant’s argument is that a finding of guilty of murder of the second degree is the equivalent of a finding that the Inlling was not willful, not deliberate and not premeditated. Therefore the judgment of guilty of murder of the second degree is not supported by the evidence. Diametrically opposed to this contention is the holding in People v. Thomas, 25 Cal.2d 880, 903 [156 P.2d 7]. Mr. Justice Sehauer, speaking for the Supreme Court of California in such case, gives the correct construction of section 189 of the Penal Code by emphasizing the word “and” in the following quotation from [6]the decision: “Murder of the second degree may be defined as the unlawful killing of a human being with malice aforethought but which killing is not perpetrated by means of poison, or lying in wait, or torture, is not wilful, deliberate and premeditated, and is not committed in the perpetration of or attempt to perpetrate arson, rape, robbery, burglary, or mayhem. (See Pen. Code, §§ 187, 189.) It is apparent from the facts previously recited that the homicide in this ease, if it was murder at all, was murder of the second degree unless the killing was ‘wilful, deliberate and premeditated.’ ” By the interpretation thus placed upon section 189 of the Penal Code if the homicide is not willful, deliberate and premeditated the crime is murder of the second degree.