| Cal. | Jul 1, 1867
The instructions given on hehalf of the people are mainly taken from the statute in relation to murder, and the more recent decisions of this Court. They seem to have been prepared with unusual care, and in all respects adapted to the circumstances under which the homicide was committed. They are not even obnoxious to criticism.
If the Court erred in refusing the first two instructions asked on behalf of the defendant, the error was without prejudice. The refusal was to instruct the jury that under the peculiar terms of the indictment they could not find the defendant guilty of murder in the first degree. Having been found guilty of murder in the second degree only, the defendant was not prejudiced by the refusal. But we do not desire by this to be understood as implying that the refusal was error. As we held in the case of The People v. King, 27 Cal. 507" court="Cal." date_filed="1865-07-01" href="https://app.midpage.ai/document/people-v-king-5435735?utm_source=webapp" opinion_id="5435735">27 Cal. 507, it is not the province of the Grand Jury to determine the degree of the murder. That duty is, by the statute, expressly cast upon the trial jury, and the designation of the degree by the Grand Jury is, therefore, as idle as a recommendation to the mercy of the Court appended to a verdict of guilty of murder in the first degree. If the Grand Jury undertake to designate the degree, such designation is to be disregarded. The trial jury may, notwithstanding, find the defendant guilty in the first degree, if, in their judgment, the testimony is sufficient.
. Hor do we think the Court erred in refusing the eighth instruction, asked in behalf of the defendant, as to the importance to be attached to the threats previously made by him. "While it may contain some matter not objectionable, yet as a whole we think it was more calculated to mislead than to enlighten the jury. It is evidently founded upon
Mr. Justice Rhodes expressed no opinion.