California Charles Howard Fairall.

Criminal law and procedure of California including the penal code of California online

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the homicide is committed upon a sudden quarrel or heat
of passion. Here, while the intent to kill exists, it is not
that deliberate and malicious intent that is an essential
element of the crime of murder, and the law, out of regard
for the frailties of human nature, disregards the actual
intent and presumes that the homicide was without malice.^*
The intent to kill may also exist when the homicide is
excusable or justifiable.*' While in express malice an
intent to kill is necessary, yet it need not be an intent to
kill a particular person, as where A intending to kill B, kills
C instead."


The mere facts of killing being established, malice_is
presumed; hence, if the killing be conceded, and no cir-
cumstances in mitigation or extenuation be shown, the
accused is, by presumption of law guilty of murder.** put
there is no presumption as to the degree, it being a ques-
tion for the jury)**

If the attendant circumstances show that the act of kill-
ing was done with malice, it is murder, otherwise it is only

^Whenever one, in doing an act with the design of ccmi-
mitting a feloijy, takes the life of another, even accidentally,
it is murder/' The law measures the act which is malum in
se substantially by the result produced, though not contem-
plated, as if specifically intended. In such cases it sup-

12 People V. Freel, 48 Cal. 436; People v. Doyell, 48 CaL 96;
People V. Bmggy, 93 Cal. 481.

13 People V. Newcomer, 118 Cal. 263.

14 People V. Miller, 121 Cal. 243; People v. Craig, 111 CaL
460; People v. Foren, 25 Cal. 365.

19 People y. Bush ton, 80 Cal. 160; People v. BoUng, 88 Cal.

380; People v. Stonecifer. 6 Cal. 405; People ▼. Millgate,

5 Cal. 127; People v. Roberts, 6 Cal. 217; People ▼.

Langton, 67 Cal. 427; Pecp^ v. Ah Gee Yung, 86 Cal.

144; People ▼. Bush, 71 Ca!. 602; People v. March, 6 Cal.

i<} People V. Belencia, 21 Cal. 544; People v. King, 27 CaL

" People V. Evans, 124 Cal. 209; People v. Kerraghan. 72

Cal. 609.

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plies the intent to kill, holding the offender responsible for
the natural and probable consequence of his acts.^* If a
woman not more than six weeks advanced in pregnancy be
killed in an attempt to produce an abortion upon her, it is
murder notwithstanding there was no intent to take life.^*


When death results from the discharge of firearms
into a crowd of persons with recklesss indifference to
human life, it is as much a murder as if the offender had
laid in wait for his victim.'*^" Likewise if the accused kill
the deceased upon a public highway without reason to
apprehend any other or greater wrong than a mere trespass
on his premises.^* While the recklessness or unlawfulness
of the act may be criminal, it may not be sufficient to show


When an officer is killed in an endeavor to arrest a felon
fleeing from the scene of his crime, it is murder. And it is
not necessary that the officer had a warrant to make his kill-
ing by the pursued person a felony. /Neither is it necessary
that the resisting person should be notified of the official
character of the one attempting to make the arrest, or
that he should be informed of the cause of his arrest.^


To constitute murder in the first degree the killing must
be wilful, deliberate and premeditated. A "wilful killing"
is accomplished when there is a specific intent to take life.
When such intent is founded on consideration, it is delib-
erate, and when the deliberation precedes the intent it is
premeditated." There are certain kinds of murders which
carry with them conclusive evidence of premeditation which

18 People V. Doyen, 48 Cal. 94; People v. Olsen, 80 Cal. 127;

People V. Goslaw, 78 Cal. 323.
i» Bx parte Wolff, 57 Cal. 94.
20 People V. Bealoba, 17 Cal. 395.
»i People V, Dunne, 80 Cal. 847.
22 People v. Peame, 118 Cal. 155.
2» People V. Pool, 27 Cal. 573.
24 People V. Pool, 27 Cal. 585.

CfllMKS— 12

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th^ law divides into two classes. . The first class includes
'^hose murders perpetrated by means of poison, lying in
Avait, torture, etc. Here the means used is held to be con-
•clusive evidence of premeditation.*'^ The second class
includes murder done in the perpetration or attempted per-
petration of burglary, robbery, rape, arson, or mayhem.
Here the occasion is made conclusive evidence of premedi-
tation. *• Premeditation is likewise shown in murders per-
petrated upon one person while the death of another is con-
templated. Here there is the specific intent to kill which
shows express malice and is murder in the first degree.*^


As to murders perpetrated with express malice, that is
with a specific intent to kill, or in pursuance of a design
to commit the felonies named from which the law conclu-
sively presumes such intent, all difficulty as to question of
degree is removed. It is only in those cases which do not
fall within these general classes that the distinction between
the degrees is involved in doubt. Here the law leaves the
degree to be determined from the facts of each case,** but
prescribes for the government of the deliberations of the
jury a certain general definition or test. To constitute the

25 People V. Williams, 48 Cal. 849; People v. Knott, 122
Cal. 410; People v. Miles, 55 Cal. 207; People v. Moore,
8 Cal. 90; People v. Bealoba, 17 Cal. 845; People v. San-
chez, 24 Cal. 29; People v. Foren, 25 Cal. 364; People
V. Nichol, 34 Cal. 214; Ex parte Wolff, 57 Cal. 94.

2« People V. Miller, 121 Cal. 343; People v. Majors, 65 Cal.
38; People v. Keefer, 65 Cal. 233; People v. Vasquez,
49 Cal. 560; People v. Bealoba, 17 Cal. 397; People v.
Olsen, 80 Cal. 126; People v. Craig, 111 Cal. 460; People
V. Doyell, 48 Cal. 94; People v. Foren, 25 Cal. 364; People
V. Nichol, 34 Cal. 214; People v. Long, 39 Cal. 696;
People V. Williams, 43 Cal. 349; Ex parte Wolff, 57 Cal.

27 People V. Olsen, 80 Cal. 126; People v. Foren, 25 Cal.
364; People v. Doyell, 48 Cal. 94; People v. Craig. Ill
€al. 470.

28 People V. Valencia, 43 Cal. 556; People v. Woody, 45 Cal.
289; People v. Gibson, 17 Cal. 283; People v. Ah Lee.
60 Cal. 86; People v. Chew Sing Wing, 88 Cal. 271; People
V. Foren. 25 Cal. 361; People v. Long, 39 Cal. 697; People
V. Doyell, 48 Cal. 94; People v. Olsen, 80 Cal. 126; People
V. King, 27 Cal. 514; People v. Belencia, 21 Cal. 544.

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first degree, the unlawful killing must be accompanied with
a clearly deliberate and premeditated intent to take life,
either express or implied by law from the facts.
The intent to kill must be formed upon pre-existing reflec-
tion, and not upon a sudden heat of passion sufficient to
preclude the idea of deliberation.^®


No appreciable space of time, however, need intervene
between the formation and the execution of the design to
kill. It is only necessary that the act of killing be preceded
by a concurrence of will, deliberation, and premeditation, no
matter how rapidly the acts of the mind may succeed each
other, or how quickly they may be followed by the act of
killing, to make the homicide murder in the first degree.'**
Deliberation and premeditation mean that the act was pre-
conceived and done after reflection.'^ If the design to kill
existed while delivering the fatal blow, it is enough.'^ No
time is too short for a wicked man to frame in his mind
a scheme of murder and to contrive means of executing it.'^


It will be seen from the foregoing that it is the presence
or absence of premeditation and deliberation that distin-
guishes the degrees of murder. So that all murders done

2» People V. Moore, 8 Cal. 90; People v. Bealoba, 17 Cal.
396; People v. Sanchez, 24 Cal. 29; People v. Poren, 26
Cal. 365; People v. Nichol, 34 Cal. 214; People v. Long,
39 Cal. 696; People v. Williams, 43 Cal. 34? ; People v.
Valencia, 43 Cal. 555; People v. Doyell, 48 Cal. 95; Bx
parte Wolff, 57 Cal. 94; People v. Hunt, 59 Cal. 435;
People V. Morine, 61 Cal. 369; People v. Grigsby, 62 Cal.
48; People v. Hurtado, 63 Cal. 288; People v. Raten, 63
Cal. 423; People v. Hamblin, 68 Cal. 104; People v.
Knapp, 71 Cal. 1; People v. Williams, 73 Cal. 533; People
V. Cox. 76 Cal. 285; People v. Bowman, 81 Cal. 566;
People V. Bawden, 90 Cal. 196; People v. Gibson, 106
Cal. 468.

80 People V. Williams, 43 Cal. 344; People v. Pool. 27 Cal.
585; People v. Cotta, 49 Cal. 166; People v. Jamarillo,
57 Cal. 114; People v. Nichol, 34 Cal. 211; People v. Hunt,
59 Cal. 435; People v. Lrong, 39 Cal. 696.

«i People V. Bealoba, 17 Cal. 397.

82 People V. Hamblin, 68 Cal. 104; People v. Doyell, 48 Cal.

83 People V. Moore, 8 Cal. 93.

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in the execution of a design to commit any other felony
than murder, burglary, robbery, rape, arson, or mayhem,
and all done without deliberate and premeditated malice are
murders in the second degree.



Manslaughter is the unlawful killing of a human being
without malice, and includes every felonious homicide which
is not murder. The distinction between murder and man-
slaughter is only in regard to malice. Malice, either express
or implied, is always present in murder, and always absent
in manslaughter.^* It is either voluntary or invaluntary.*^


Voluntary manslaughter is an unlawful killing upon sud-
den quarrel or heat of passion. But to reduce a wilful
homicide to manslaughter on this ground, the provocation
must be sufficient to excite an irresistible passion in a rea-
sonable person of ordinary self command. It is only out
of regard for human frailty that the law will extenuate
murder to manslaughter.^^ When the homicide is com-
mitted in a mutual combat, in order to reduce the offense
from murder to manslaughter, it must appear that no undue
advantage was sought or taken by defendant, for if such
was the case, malice may be inferred and the act of killing
amount to murder.^^ But the use of a superior weapon by .
the slayer is not of itself sufficient evidence from which
malice may be inferred.^* In the absence of considerable
provocation, malice is implied. If it be only slight, the law
will consider the act of killing not the result of human

«* People V. Lamb, 17 Cal. 323; People v. Freel, 48 Cal. 436;

People V. Crowley, 56 Cal. 36; People v. Boling, 83 Cal.

380; People v. Kerraghan, 72 Cal. 609; People v. Briiggy,

93 Cal. 482; People v. EJvans, 124 Cal. 209; People v.

Munn, 66 Cal. 213; People v. Samsels, 66 Cal. 100.
35 People V. Bruggy, 93 Cal. 478; People v. Pearne, 118 Cal.

15^. • >

86 People V. Butters, 8 Cal. 441; People v. Freeland, 6 Cal.

99; People v. Freel, 48 Cal. 436; People v. Bruggy,

93 Cal. 480; People v. Hurtado. 63 Cal. 288,
«7 People V. Sanchez, 24 Cal. 17.
88 People V. Barry, 31 Cal. 35.

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infirmity, but rather of malice, and will declare the homi-
cide niurder.**® Words of* reproach, however grievious, are
not of themselves a sufficient provocation, as a reasonable
man should exercise patience and forbearance under insult
and abuse.^** Trespass upon property unaccompanied with
acts indicating an intent to commit some injury by force is
not considered a sufficient provocation to reduce an inten-
tional homicide to manslaughter.^^ And if a sufficient time
elapse between the provocation and the homicide to allow
the blood to cool and reason to assert her sway, it will be
murder, no matter what the provocation.''^ So, when the
defendant is so far in possession of his mental faculties as
to be capable of knowing that the act of killing was wrong,
the belief that the deceased had seduced his wife will not
reduce the crime to manslaughter.''^ Whatever the provoca-
tion may be, if it was sought by the slayer, the killing will
be murder.''*


Involuntary manslaughter is an unlawful killing which
is done in the commission of an unlawful act, not amount-
ing to a felony," or in the commission in an unlawful man-
ner of a lawful act which might produce death ;*" or in the
commission of a lawful act without due caution and cir-
cumspection.*^ As to what will amount to an unlawful act

3» People V. Doyell, 48 Cal. 96; People v. Bruggy. 93 Cal.

40 People V. Murback, 64 Cal. 370; People v. Butler, 8 Cal.
441; People v. Turley, 50 Cal. 469; People v. Bruggy,
93 Cal. 480 .

41 People V. Dunne, 80 Cal. 34; People v. Clark, 84 Cal. 578;
People V. Hecker, 109 Cal. 461.

42 People V. Sanchez, 24 Cal. 17.
4« People V. Hurtado, 63 Cal. 288.
44 People V. Lamb, 17 Cal. 323.

4« People V. Bruggy, 93 Cal. 478; People v. Pearne, 118 Cal.

156; People v. Honshell, 10 Cal. 83; People v. Munn,

65 Cal. 212; People v. Holmes, 118 Cal. 461; People v.

Melendrez, 129 Cal. 552.
«« People V. Bruggy, 93 Cal. 478; People v. Pearne, 118

Cal. 156; People v. Munn 65 Ca?. 212; People v. Holmes,

118 Cal. 461.
-tn People v. Keefer, 18 CaL 638; People v. Holmes, 118 Cal.

461; People v. Melendrez. 129 Cal. 561.

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has not been directly decided in this state, but our court
seems inclined to the opinion, supported by the great weight
of authority, that only those acts which are malum in se
are within this term. An act which is merely malum pro^
hibitum is not.*® When death ensues in pursuit of an
unlawful design, without intention to kill, it will be mur-
der or manslaughter, as the intended offense is felony or
a misdemeanor.*® A man may be guilty of manslaughter
under some circumstances by mere carelessness.'*

Homicide by accident and misfortune is excusable when
done in either of the following cases:

Lawful, act. In lawfully correcting a child or in doings
any other lawful act by lawful means, with usual and
ordinary caution, and without any unlawful intent.*^

Heat of passion. When committed in the heat of pas-
sion upon any sudden and sufficient provocation, or upon
a sudden combat, when no undue advantage is taken, nor
any dangerous weapon used, and when the killing is not
done in a cniel or unusual manner.*^ But even in mutual
combat when no dangerous weapon is used, the slayer is
bound to desist when his victim is helpless,"' and the com-
bat must be sudden and not in pursuance of a deliberate
plan or agreement to fight.*''


Homicide is justifiable when necessarily conmiitted in
either of the following cases :

1. In the advancement of public justice; and

2. To prevent the commission of crimes.

Under the first head may be grouped all those cases in
which the homicide is necessarily committed:

4« People V. Peame, 118 Cal. 168.

4» People y. Honshell, 10 Cal. 83; People v. Munn, 65 CaL

so People v. Keefer, 18 Cal. 637; People v. Melendrez, 129

Cal. 651.
»i Penal Code 196, sub. 1; People v. Bush ton, 80 Cal. 162.
B2 Penal Code 196, sub. 2; People v. Perdue, 49 Cal. 426;

.People V. Bush ton, 80 Cal. 162.
88 People V. Perdue, 49 Cal. 425.
64 People V. Sanchez, 24 Cal. 17.

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jnsrrinABLK homicide 183

1. By an officer or person acting under his command or
in his aid. (a) In obedience to a judgment of a com-
petent court; (b) in overcoming actual resistance to the
execution of some legal process, or in the discharge of any
other legal duty; (c) in retaking escaped or rescued felons;
(d) in arresting persons charged with a felony fleeing from

^ justice or resisting arrest.

2. By any person: (a) In a lawful attempt to apprehend
a person for a felony committed; (&) in lawfully suppress-
ing a riot; (c) in lawfully keeping or preserving the
peace;** (d) in resisting any attempt to murder any person,
or commit a felony or to do some great bodily injury upon
any person; and (e) in defense of habitation, property *or


An officer in making an arrest has the right to use all
the force which from the surrounding circumstances seems
to him, as a reasonable man, necessary. He has a right
to arm himself and go armed, and where the offense charged
is a felony, and is apparently necessary to a reasonable man,
it is his right to kill the person whom he is seeking to
arrest, and it is his duty with or without a warrant to arrest
one who has committed a felony.*^ It is the right and
is expected of all good citizens that they aid in the capture
or arrest of any person who has committed a felony, and
they have the same protection and the same rights as an
officer under the same circumstances.** Resisting arrest
does not always constitute the use of physical force. A
person may resist arrest by fleeing from an officer attempt-
ing to arrest him.**


There must be such a state of facts as will lead a man of
ordinary care and prudence to believe or entertain an honest

•s Penal Code 196 and 197.

90 Penal Code 196 and 197.

s7 People v. Adams, 85 Cal. 231.

58 People V. Raten, 63 Cal. 424; People v. Brooks, 131 Cal.

60 People V. BrookSr 131 Cal. 315.

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and strong su^icion that the person to be arrested is
guilty. A police officer has the right without a warrant to
arrest any person in the night time, whom the officer has a
reasonable ground to believe has committed a felony.****
And where a citizen, in pursuit of a felon, by mis-
take, kills an innocent person, it is excusable if he had
reasonable cause to believe, and did in fact believe, that the
deceased was the person who had committed the felony.**


Against force and violence. The owner of property
and in possession of the same, may use as much force as is
necessary in its defense against one who manifestly intends
or endeavors by violence or surprise to commit a felony
thereon. In so doing he may repel force with force even
to the extent of taking life. He must take care, however,
that the degree of force used does not exceed what is. or
appears to be, necessary to protect his possession.**

Against trespass. It is only in the prevention of the
commission of felonies that killing m such cases is justifi-
able. A bare assault without force or violence against the
officer will not justify homicide.*' A homicide committed
in endeavoring to restrain the commission of a mere mis-
demeanor is not justifiable.**

defense of habitation.

Invasion of dwelling. A man is not authorized to kill
ever>' invader of his house. In defense of habitation, the
killing can be justified only when a person intends or
endeavors to enter into the habitation in a violent, riotous
or tumultuous manner for the purpose of offering violence
to some person therein. If the person taking life has a
reasonable opportunity so to do, he ought to endeavor to

•0 People y. KilTington, 104 Cal. 92.

«i People V. Melendrez, 129 Cal. 549.

•2 People V. Payne, 8 Cal. 844; People ▼. HoBsheH, 10 Cal.
88; People v. Flannagan, 60 Cal. 4; People v. Lewis. 117
Cal. 193; People v. Stone, 82 Oca. 36; People y. Telzeria,
123 CaL 297; People v. Campbell. 30 Cal. 312.

«« People V. Hecker, 109 Cal. 461; People v. Lewis. 117 CaL
194; People v. Dunne, 80 Cal. 34.

•4 People V. Grimes, 132 Cal. 83.

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remove the trespasser without having recourse to the last
extremity. The bare fear that violence is intended is not
enough. It must appear that the circumstances were suffi-
cient to excfte the fears of a reasonable man, and that the
party killing really acted under the influence of those fears

Ri(]HT TO STAND GROUND. But where a man is assailed
in his own habitation, he is not obliged to retreat or escape
to avoid his assailant, even though a retreat may be safely
made: but may stand his ground or pursue his adversary
until he finds himself out of danger; and if in a conflict be-
tween them he happens to kill his assailant such killing is


Every citizen has the right to resist any attempt to put
illegal restraint upon his liberty, and he is justified in resist-
ing such an arrest, and in an assault made in attempting to
free himself from unlawful detention.*^ But a mere tres-
pass upon the person will not justify a homicide." And a
person who has committed a felony and flees from arrest is
not justified in killing an officer attempting to take him."


To justify a homicide for an assault it must appear that
the danger threatened was immediate and sufficient to
excite the fears of a reasonable person that the slayer was
in danger of receiving great bodily harm, and he acted
imder the influence of such fears and not in a spirit of
revenge; and it must further appear that the degree of
resistance was not disproportionate to the nature of the
injury offered — that the force used in repelling the assault
was not greater than necessary.^®

«5 People V. Walsh, 48 Cal. 449.

«« People V. Lewis, 117 Cal. 193.

«T People V. Denby, 108 Cal. 54.

«8 People V. Angeles. 61 Cal. 188.

«» People V. Pool, 27 Cal. 573.

70 People V. WllUaxns. 32 Cal. j^SO; People v. Campbell, 30
Cal. 312; People v. Hurley. 8 Cal. 390; People v. Don-
gull, 92 Cal. 607.

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Threats, alone, however, deliberately made, afford no-
justification for a homicide. In order to justify the killings
under such circumstances, it must appear that, at the very
time of the homicide, the deceased was doingf some overt
act, or making demonstrations, from which the accused
reasonably might infer a present intent and immediate dan-
ger of carrying such threats into execution, or doing him.
some great bodily harm. The right of self defense always
depends on a necessity, real or apparent, of protecting life
or property. When the necessity arises the right to kill
occurs, but the right ceases when the necessity no longer
exists. The sufficiency of the overt act to justify the belief
that life is in danger depends, of course, upon the facts of
each particular case.'* Neither will abuse, nor unjust accu-
sations, give a legal excuse or justification for taking human


While threats unaccompanied by an overt act will not
justify a homicide, yet they are always admissible in homi-
cide cases. Generally, but not always to be of avail to the
defendant they must be shown to have been communicated
to him prior to the killing.^' Communicated threats tend
to show the state of mind of the accused person, the appre-
hension under which he was acting, and to illustrate his
conduct and, motives in connection with other facts and cir-
cumstances of the case. While uncommunicated threats do-
not furnish the same evidence of the motives brought to
bear upon the mind of the accused, and are not admissible
for the same purpose. But in all cases where the acts
of the deceased in reference to the fatal meeting are of a
doubtful character, any evidence which may tend to show

71 People V, Arnold, 15 Cal. 479: People v. Lamb, 17 CJaL
317; People v. Pool, 27 Cal. 573; People v. Wri^t, 46-
Cal. 260; People v. Weatlake, 62 Cal. 303; People r.
Tamkln, 62 Cal. 472; People v. Lynch, 101 Cal. 229;
People y. Scrogglns, 37 Cal. 634; People v. lams. 57 Cal.
115; People v. Campbell. 59 Cal. 243.

72 People V. Grimes. 132 Cal. 30.

73 People V. Arnold, 15 Cal. 476; People v. lams, 57 CaL

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ths^t he sought the meeting or provoked the combat is
admissible. And in this view threats though not communi-
cated, may tend to show animus of the deceased, and illus-
trate his conduct and motives, and in such cases show which
was the aggressor/*


While in a few cases in this state'* it was held broadly
that) the party first making a felonious attack upon another,
without any lawful provocation, forfeits absolutely all right
of self defense, no matter what turn the events of the affray
' may subsequently take, and to justify killing by pretense
of necessity, the accused must be wholly without fault in
bringing such a necessity. But such is not the law. It
is true that a party may not by his own lawless acts create
a necessity for self defense, and then by acting upon such

Online LibraryCalifornia Charles Howard FairallCriminal law and procedure of California including the penal code of California → online text (page 15 of 77)