People v. Adcock

SHINN, P. J. In a nonjury trial defendant was convicted of the murder of Mildred Bolei, the crime being found to be of the second degree, and also of an assault committed upon Helen Owens by means of force likely to produce great bodily injury in violation of section 245 of the Penal [137]Code. Defendant pleaded not guilty and not guilty by reason of insanity. After he was found guilty of both offenses, trial of the insanity issue was had before the court upon the evidence adduced in the trial of the not guilty plea and evidence of physicians appointed by the court to examine defendant as to his sanity. He was found by the court to be sane at the time of the trial and also at the time of the commission of the crimes. He was sentenced to state prison, appealed from the judgment and also noticed an appeal from the nonappealable order denying his motion for new trial.

Quite properly, counsel for the defendant refrains from arguing insufficiency of the evidence to prove that defendant was the perpetrator of the two crimes. Any such contention would have been wholly unjustified. No argument is made for reversal of the conviction of defendant for the crime committed against Miss Owens.

The sole ground of appeal from the conviction of murder is that there was no evidence that the homicide was committed with malice aforethought; wherefore, it is urged that we should reduce the conviction to manslaughter, under authority conferred by section 1181 of the Penal Code. This is not a proper case for exercise of the power to modify judgments. Beyond a doubt the evidence was ample to prove that the death of Miss Bolei was accomplished with malice aforethought.

Murder is defined as follows: "187. Murder is the unlawful killing of a human being, with malice aforethought.” Section 188 of the Penal Code defines malice in the following terms: “Such 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 considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.”

A brief statement of the evidence of the events preceding the killing of Miss Bolei will suffice for the purposes of our opinion. There was no evidence of the relationship between defendant and Miss Bolei except the testimony of witnesses to their association immediately preceding the homicide. During the night of the 19th of January and the early morning hours of January 20th, defendant and Miss Bolei were together drinking beer in taverns. Defendant did not appear to have become intoxicated but as Miss Bolei left one of the