Crim. No. 621. | Cal. | Aug 23, 1900
The defendant was convicted of the crime of murder in the second degree, and appeals from the judgment and from an order denying a new trial.
The killing took place in the county of San Diego, near the village of Hedges. A man had been stabbed there by one Rosales, who had escaped. The people of the village, or many of them, including the defendant, were in pursuit of the fugitive, who — as also the deceased — was not personally known to the defendant. In the course of the pursuit the defendant came upon the deceased — a colored man, named John Lee — and shot him while running away. According to the testimony of defendant, he called on the deceased several times to halt. Deceased then turned around and *551 drew a pistol, and defendant, believing he would shoot, fired upon him; upon which deceased turned and ran, and defendant fired upon him a second and a third time. The deceased fell at the third shot. The same account substantially was given by the defendant, in answer to questions of one of the witnesses for the prosecution, immediately after the transaction. The account given by the other witnesses for the prosecution — who saw the transaction from a distance — was substantially to the same effect, except that they did not hear what said said or see the deceased draw the pistol. But one of them testifies to seeing the defendant pick up the pistol from the ground at or near the place where the deceased was when the first shot was fired.
Were this all the evidence in the case, the inference would be irresistible that the defendant mistook the deceased for the fugitive when he and the rest were in pursuit, and that the killing was the result of this mistake. And from this it would follow that the killing was without malice, and consequently could not amount to more than manslaughter. (Pen. Code, sec.
1. Upon this state of the evidence the court — after instructing the jury that "a private person may arrest another when a felony has been in fact committed, and he has reasonable cause for believing the person arrested to have committed it" — further instructed them that "whether the facts and circumstances established by the evidence will constitute reasonable cause for believing that a person attempted to be arrested has committed a felony, is a question of law to be determined by the court, and cannot . . . . be left to the determination of a jury"; and accordingly the court instructed the jury as follows: "I am satisfied, assuming all *552 the testimony to be true upon the question of probable cause, that in contemplation of the law the defendant had no reasonable cause to believe that John Lee was the person who had committed the felonious assault upon Charles Salamon; and, this being true, he was guilty of an unlawful act, in case you find from the evidence that he was attempting forcibly to arrest John Lee."
As it was an admitted fact in the case that at the time of the killing the defendant "was attempting forcibly to arrest John Lee," this instruction cannot otherwise be regarded than as, in effect, an instruction to find the defendant guilty; for the killing of a man "in the commission of an unlawful act" is, at least, manslaughter (Pen. Code, sec. 192, subd. 2); and the jury were in fact, in the next paragraph, thus expressly instructed. Thus the sole issue left for the jury to determine was as to the grade of the offense — whether murder or manslaughter.
Presumably these instructions were based on the authority of the decision in People v. Kilvington,
2. Under the instruction we have been considering, the jury, as we have observed, were bound to find the defendant guilty either of murder or of manslaughter; and the sole issue left to them was to determine the grade of the offense. On this state of the issues the court, after instructing the jury as to the evidence necessary to justify a finding of murder in the first or of murder in the second degree, instructed them in effect that before they would be warranted in returning a verdict of manslaughter they should be satisfied from the evidence, "beyond a reasonable doubt," that "the defendant without malice killed John Lee," etc.; which was in effect to instruct them that they were to find the defendant guilty of murder unless they were satisfied beyond a reasonable doubt that the killing was without malice. This was doubtless an inadvertence on the part of the court, and the law is correctly given in another part of the charge. But in view of the fact that the question of acquittal had in effect been already withdrawn from the jury, the instruction could not well have been otherwise understood than as expressed.
We advise that the judgment and order denying a new trial be reversed.
Cooper, C., and Gray, C., concurred.
For the reasons given in the foregoing opinion the judgment and order denying a new trial are reversed.
Garoutte, J., Harrison, J., Van Dyke, J., Temple, J., McFarland, J.