The defendant was charged by information with the murder of his wife, Oreane Ottey, committed on *718 October 31,1934, in Monterey County. He pleaded not guilty and not guilty by reason of insanity. A jury found him guilty of murder of the first degree without recommendation. On the issue raised by the plea of not guilty by reason of insanity, the defendant was found to have been sane. From the judgment imposing the death penalty and from the order denying his motion for a new trial, the defendant has appealed.
The defendant urges, as grounds for reversal, insufficiency of the evidence to sustain the degree of the crime found by the jury, alleged errors committed by the court in the conduct of the trial and in its comments on the evidence and the credibility of the witnesses, and error in the denial of the motion for a new trial.
The defendant and the decedent had been married for about three years and lived in Monterey. In accordance with his wife’s desire the defendant had procured his discharge from the United States army, and the parties lived in the home then being acquired by the defendant under a contract of purchase. Previous to his discharge from the army the defendant, who had received medals for expert marksmanship in gun practice, had been assigned to duty as a military police in Monterey. At the time of and before the homicide he had been working as a deputy for the sheriff or the constable in Monterey County. In connection with his duties he was permitted to carry firearms. Some time prior to October, 1934, because of the defendant’s lack of employment, he and his wife moved out of the defendant’s house and rented it, and occupied cheaper quarters. The wife continued as an office employee in Woolworth’s store in Monterey. In 1933 the parties disagreed and separated, but were subsequently reconciled and lived together in a rented apartment until the first part of October, 1934, when another separation occurred. The defendant testified that after a week or so they again became reconciled, agreed to return to each other, and that the only difference then between them was the defendant’s desire to give the tenants in his house notice to move so that they could reoccupy it, and the wife’s preference to live downtown in an apartment.
October 31, 1934, was the defendant’s birthday. He testified that he telephoned his wife at Woolworth’s and asked her to dine with him and spend the evening together. She indi *719 cated that she had other arrangements for the evening but made a luncheon engagement with him. About 12 o’clock that morning the defendant went to the office at Woolworth’s and talked with the decedent. A witness saw the defendant go down on his knees to his wife and make a request accompanied by the words, “Please, Honey”, to which the Wife replied that they would not then discuss the matter. The defendant testified that his request was that she go back and live in his house. He then went out and waited in his automobile parked across the street until the decedent come out at 1 o’clock. She proceeded across the street and after a few minutes’ conversation, they walked to a Chinese restaurant a few blocks away which they, and especially the wife, had previously patronized. Witnesses who observed them testified that they both seemed in good spirits and in an amiable mood. They entered a booth in the restaurant. A few seconds later, while the waitress was carrying water to the booth, screams were heard and a cry “Help, help!” in a woman’s voice. The waitress backed into the kitchen and heard three shots fired. A fourth shot was heard when the waitress went to the cook in the yard back of the restaurant. The cook and the waitress then reentered the restaurant by the front door, when the waitress heard the defendant in the booth mutter, “Honey, I had to do this”. While a call was being put in for the police two more shots were fired in the booth. One witness saw the defendant put the gun to his own head after three shots were fired. The wife was carried out of the restaurant dead, with two bullet wounds in her head, which showed that the gun had been fired at a distance of about two inches, and a bullet wound through her wrist. When confronted by the police officers the defendant was covered with blood. He dropped his empty gun and asked, “Didn’t I do a good job of it?”, expressing a wish to die. He had a wound in his head and another through the palm of the left hand. Upon the approach of one of the officers the defendant stated, “I shot my wife and myself”, to which the officer replied, “I know you did. ’ ’
At the trial the defendant attempted to minimize the effect of the foregoing circumstances and declarations by testifying that his wife’s wounds were caused by the accidental discharge of the gun in his hands in the course of a struggle for its possession by her when the defendant made a threat
*720
to kill himself. On the foregoing facts, however, the jury were amply justified in concluding that the wounds received by the wife were not the result of accidental discharge of the weapon, but that the homicide was premeditated and intentional, even though they also found that the intent was not formed until a few seconds before it culminated in the actual shooting. In addition, there was evidence of prior threats made by the defendant on the life of his wife and that she had a fear of living in his house with firearms in it and of conversing with him after a separation from him while he was armed. There was also testimony of prior admission by the defendant of previous mistreatment of his wife. From the nature of the wounds the jury might believe that there was an undirected discharge of one shot which passed through the decedent’s wrist while the defendant had hold of it with his left hand, but it is not conceivable that the jury could rationally conclude that the two wounds in her head, caused by shots fired at such close range, were anything less than the result of a deliberate intent to take her life. In such a clear case of justification in the evidence for the jury’s verdict of first degree murder we may not accede to the defendant’s request to exercise the discretion reposed in this court by section 1181 of the Penal Code and reduce the crime to one of lesser degree or of manslaughter as was done in the case of
People
v.
Kelley,
In view of the foregoing conclusion but little need be said in disposing of the defendant’s contentions that the court committed error which prejudiced the defendant in the conclusion which the jury might reach on the nature or degree of the homicide, or in the exercise of its discretion to return its verdict without recommendation.
Prejudicial error in a question asked by the court during its examination of the defendant is urged. The defendant took the stand in his own behalf and after direct and cross-examination by counsel the court asked the defendant questions designed to inquire into his reason for calling on his wife about an hour before he expected to have luncheon with her. The question objected to is, “That is your story, is it?” From the whole context of the examination by the court we
*721
are unable to perceive that the jury received the intimation that the word “story” was used in the vulgar sense of an incredible tale. In fact, the court’s examination but served to develop a plausibility for an added reason given by the defendant for his preluncheon visit to his wife, viz., his desire to prevail upon her to change her decision and have dinner and spend the evening with him on his birthday, rather than merely to have luncheon with him. Furthermore no objection to this line of examination by the court was taken at the time and it is too late to urge it as error for the first time on the appeal.
(People
v.
Mendez,
The court instructed the jury that in order to constitute murder of the first degree the intent to kill must be the result of deliberate premeditation; that if the act of killing be preceded by and the result of a concurrence of will, deliberation and premeditation, the killing is murder of the first degree, no matter how rapidly these acts succeed each other or how quickly they may be followed by the act of killing; “but if you find the defendant guilty of murder and still are not convinced, beyond a reasonable doubt, that such murder was accompanied or characterized by
some one
of the circumstances just explained as indicative of murder in the
*722
first degree, you can find the defendant guilty of murder in the second degree only”. The defendant predicates prejudicial error in the use of the language ‘‘some one”, rather than language indicating the presence conjunctively of the elements of will, deliberation and premeditation as used in the code section (sec. 189, Pen. Code), and in the first part of the charge. The effect of the language used by the court was to define the elements constituting the degree under discussion in the disjunctive, rather than in the conjunctive. In
People
v.
Pool,
The defendant lays particular stress on alleged erroneous comments of the court on the evidence and the credibility of the witnesses as justifying a reversal. In the discussion of this contention we repeat the wording of section 19 of article YI of the Constitution as it read prior to and after the amendment adopted by the People at the general election of November, 1934. Prior to the amendment that section contained the prohibition: ‘‘Judges shall not charge juries with respect to matters of fact, but may state the testimony and declare the law.” That prohibition had been the law since 1849. At the November, 1934, election the section was recast in the following language: ‘‘The court may instruct the jury regarding the law applicable to the facts of the case, and may make such comment on the evidence and the testimony and credibility of any witness as in its opinion is necessary for the proper determination of the ease. The court shall inform the jury in all eases that the jurors are the exclusive judges of all questions of fact submitted to them and of the credibility of the witnesses. ’ ’
There is no merit to the defendant’s contention that the amendment does not apply in cases tried subsequent to the amendment involving offenses committed prior to the adoption of the amendment.
(People
v.
Talkington,
8 Cal. App. (2d) 75 [
This court has had occasion heretofore to consider generally the scope of the power reposed in the courts of this state by the change in the Constitution.
(People
v.
De Moss,
4 Cal. (2d) 469 [
It is apparent from the history of the constitutional amendment that its purpose was to establish the rule in this state in substantial harmony with the practice in other jurisdictions where like powers have been exercised by the trial courts. In the argument submitted to the electors at the general election in 1934, in support of the proposed amendment, it was stated: “ This measure also enables the trial judge to comment to the jury on the facts of the case; to give the jurors his analysis of the evidence and to express his opinion on the merits of the case, but informing them at the same time, that his views are advisory only, and that the jury is the final and sole judge of the facts and of the guilt or innocence of the accused. This is the practice in the courts of Great Britain and Canada, and also in our United States courts.” While the argument sent to the voters is not controlling
(Fay
v.
District Court of Appeal,
As often as a trial court’s action in such eases has been brought into question, it is obvious that no hard and fast rule determinative of what a trial judge may or may not say to a jury in commenting on the evidence and the credibility of the witnesses can be laid down. It is impossible to state in an opinion just what particular comment should or should not be made in all cases. That question must depend, in a criminal ease, upon the nature of the charge, the nature of the evidence, and, to some extent, on the arguments of counsel—in short, upon all of the circumstances of the case. “It is impossible, however, from the cases to find the dividing line between what is objectionable and what is not, and to lay down a hard and fast rule by which the doubtful cases can be placed on one side or the other of the dividing line. . . . (reviewing cases.) ... It is evident from an examination of these cases that each case, in a large measure, stands on its own bottom, except as to the recognition of certain general principles.”
(Malaga
v.
United States,
57 Fed. (2d) 822, 827, 828;
Stokes
v.
United States,
It may not be successfully argued that because the language of our constitutional amendment is in itself without limitation as to the comment that may be made by the court on the evidence and the credibility of the witnesses, it must follow that the power thus conferred is without any of the restrictions with which the law of the land surrounds it.
One general principle to be recognized is stated by the Supreme Court of the United States as follows: “This privilege of the judge to comment on the facts has its inherent limitations. His discretion is not arbitrary and uncontrolled, but judicial, to be exercised in conformity with the standards governing judicial office. In commenting upon testimony he may not assume the role of a witness. He may analyze and dissect the testimony, but he may not either distort it or add to it. His privilege of comment in order to give appropriate
*725
assistance to the jury is too important to be let without safeguards against abuses.”
(Quercia
v.
United States
(May 9, 1933),
In England, to which we look as the original source of the rule, the practice is stated by Chitty (Brickwood’s Sackett on Instructions to Juries, p. 126 et seq.), to be: “It is the practice for the judge at nisi prius not only to state to the jury all the evidence that has been given, but to comment on its bearing and weight, and to state the legal rules upon the subject and their application to the particular case, and to advise them as regards the verdict they should give.”
In New Jersey, where the English practice has been adopted, it is the duty of the judge to give his views upon the weight of the evidence where he thinks it is required for the promotion of justice; and whether or not he exercises all or any of his rights in that regard in a particular case depends entirely upon his judicial discretion.
(State
v.
Hummer,
73 N. J. L. 714 [
A statement of the general rule worthy of notice is found in Malaga v. United States, supra, where it is stated at page 828: ‘ ‘ The right of a trial judge to aid the jury in arriving at a just verdict is a valuable and important judicial function in the administration of justice. We have no desire to limit it except within its proper sphere. It is a trite saying, but a true one, that in the interest of justice a judge should be permitted to control the conduct of the case rather than counsel for the litigants. A trial in a court of justice should not be a game over which the judge presides in the capacity of *726 umpire to see that certain rules are observed, but a proceeding in which a just verdict is the sole aim.
“The trial judge must declare the law governing the rights of the parties and determine what evidence it is proper for the jury to consider under the established rules of evidence. He should also by reason of his training in analyzing testimony, and experience in determining the credibility of witnesses, and the influence that personal interest, bias, and prejudice have in influencing witnesses, be permitted to assist the jury in determining what evidence has a bearing on the disputed issues in the case, and aid them in weighing the evidence, taking care that the jurors clearly understand that it is their own judgment which must finally determine what the facts are. To this end a judge in the federal courts may inform the jury of the impression certain evidence makes on his mind. But having in mind the weight that jurors ordinarily give to the opinion of the presiding justice, he should take especial care that they understand that it is their independent judgment which must finally determine the factual issues, and are not unduly influenced by the opinion of the court. ’ ’
The defendant contends that if error is made apparent from the comments by the trial court because in violation of the restrictions and limitations announced in certain cases relied on by him, a reversal is justified without any inquiry into the question whether such error has been prejudicial. We cannot accede to the correctness of such a statement. Section 44/2 of article VI of the Constitution is as applicable in the determination of the appeal under the new procedure as it was before the change.
With the foregoing and other pertinent rules in mind we have examined the record. We find therein no indication that the jury’s verdict was unduly influenced by the court’s comments. On- the contrary it may be said that the evidence before us indicates that the jury would have returned the same verdict if the judge had refrained from any comment whatsoever on the evidence and the credibility of the witnesses. In such a state of the record it would be of little if any value to set out in this opinion the full context of the court’s comments, which were somewhát lengthy.
There can be no possible objection to the court’s stating.to the jury the fact of the change in the law and the
*727
source and scope of its right to comment on the evidence in the case and the credibility of the witnesses. The court did this and at the same time cautioned the jury that they were the exclusive judges of the facts and the credibility of the witnesses. The further remark of the court that no appeal should be made to the jury to ‘ ‘ disregard the statement of the judge any more than any other thing in the ease”, is not subject to criticism under the circumstances shown. It was intended as an answer to the argument of defense counsel intimating that the jury should give no heed to the court’s comment, if the court should make any; that the jury system “has served us well” and “has been bought at too dear a price to be given up without mature deliberation”, and was undoubtedly so understood by the jury. While counsel had the right to, and did, argue to the jurors that the judge’s comments were not binding on them and that they were the exclusive judges of the facts, etc.
(Morse
v.
United States,
The defendant urges prejudicial error in singling out the defendant’s testimony for special comments on the credibility to be accorded it. The court remarked upon the defendant’s interest in the ease, its opinion on a phase in the testimony that “things don’t happen that way”, and included a charge that if a witness is deliberately false in one material instance the jury has the right to disregard all of his testimony not shown by other evidence to be true; also “from that you have a right to conclude his statements in this case are wilfully and deliberately false”. The remarks cannot be said necessarily to go beyond the bounds of propriety.
(State
v.
Schleifer,
There is no merit to the contention that the court, if it venture to comment on the evidence or the testimony of witnesses or of any witness, must sum up all the evidence and the testimony both favorable and unfavorable. There is no such injunction, express or implied, in the language of the Constitution, and none that would compel it under established rules in other jurisdictions. The provision in the Constitution expressly permits the court to “make
such
comment on the evidence and the testimony and credibility of any witness
as in its opinion is necessary for the proper determination of the case”.
The court may therefore exercise its own discretion in respect to what comment it will make, so long as it does not withdraw any material evidence from the consideration of the jury (and it does not appear to have done so in the present ease), and does not attempt to control the verdict by a direction.
(State
v.
Fuersten,
103 N. J. L. 383 [
Expressions of the court’s opinion as to the guilt or innocence of the defendant have been held to be within the scope of “comment”, so long as the province of the jury as defined by the constitutional section is not invaded.
(Egan
v.
United States,
22 Fed. (2d) 776, 779;
Ching
v.
United States,
The court, not once, but several times during the course of its remarks, reminded the jury of its exclusive fune *730 tion in respect to the facts and the credibility of the witnesses, and that the opinion of the court was advisory only and not binding upon it and could be disregarded entirely. Although the court’s comments might be said to show some lack of care in the preparation thereof, nevertheless viewing the comments as a whole in the light of the evidence and the inferences rationally to be drawn therefrom, we cannot escape the conclusion that the jury did so function as the sole and exclusive judges of the facts, the weight to be accorded the testimony, and the credibility of the witnesses, and that the verdict returned by them was their verdict exclusively. (B. v. Beeby, 6 Cr. App. Rep. 138, 140, 141.) In such a case further discussion of the subject matter or the views of the courts in other jurisdictions as applied to special classes of comments indulged under the law and the facts there involved, would serve no useful purpose. •
The defendant had a full and fair trial, unprejudiced by any error occurring in the course thereof or in the instructions or comments of the court. The contention that the court erred in denying the defendant’s motion for a new trial has been examined and likewise found to be lacking in merit.
The judgment and the order are and each is affirmed.
Waste, C. J., Thompson, J., Langdon, J., Seawell, J., Curtis, J., and Conrey, J., concurred.
Rehearing denied.