California Charles Howard Fairall.

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

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Cal. 592; People v. Jones, 63 Cal. 168.

3 People V. Williams, 43 Cal. 346.



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424 •CRIMINAL LAW AND PBOCSDURB.

INSANITY AS A DEFENSE.

In prosecutions for crimes the defense of insanity is
often interposed, and thereby becomes a subject of para-
mount importance in criminal jurisprudence. A due regard
for the ends of justice and the peace and welfare of society,
no less than mercy to the accused, require that it should
be thoroughly and carefully weighed. It is a plea some-
times resorted to in cases where aggravated crimes have
been committed under circumstances which afford full proof
of the overt acts, and render hopeless all other means of
evading punishment. While, therefore, it ought to be
viewed as a not less full and complete, than it is a humane
defense, when satisfactorily established, yet it should be
examined into with great care, less an ingenious counterfeit
of the malady furnish protection to guilt.

Insanity, as the expression is here used, means such a
diseased and deranged condition of the mental faculties as
to render the person incapable of distinguishing between
right and wrong m relation to the act with which he is
charged. An irresistible impulse to commit an act which
a party knows to be wrong and unlawful (if it ever exists)
does not constitute the; insanity which is a legal defense.

The standard of accountability is this: Had the party
sufficient mental capacity to appreciate the character and
quality of the act? Did he know and understand that it
was a violation of the rights of another, and in itself wrong?
Did he know that it was prohibited by the laws of the land,
and that its commission would entail punishment and penal-
ties upon himself? If he had the capacity thus to appre-
ciate the character and comprehend! the possible or probable
consequences of his act, he is responsible to the law for the
act thus committed, and is to be judged accordingly.

Although it is true, as you have been instructed, that
generally the burden of proof is upon the prosecution, yet,
to this rule there is this exception : Where insanity is relied
upon as a defense, the burden of proving the existence of
such insanity is on defendant, and it is incumbent upon him



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APPROVBD INtTRUOnONS. 425

to establish, by preponderance of evidence, that he was
insane at the time of committing the act charged, and the*
evidence of mental derangement must be such, in amount,
that if the single issue of sanity or insanity of the defend-
ant should be submitted to the jury in a civil case they
must find that he is insane. Insanity must be established
by a preponderance of the evidence. Therefore, if you
believe that the preponderance of evidence is in favor of
the sanity of the defendant, or that there is not a pre-
ponderance of evidence to the effect that he was insane at
the time of the transaction involved herein, you will act
upon the hypothesis that he was sane at that^ime, even
though you may have reasonable doubts upon tlie^^ject.
And in considering the evidence relative to the def^^of
insanity, it will be proper for you to remember that ordinsw^
experience teaches us that the majority of men are sane, f^y^
and hence it is to be presumed, until the contrary is proven ^(^j ,
by a preponderance of evidence, that the defendant was /

sane at the time of the commission of the act with which
he stands charged, if you find he committed such act.*

DEFINITIONS— MURDER OF THE FIRST AND SECOND DE-
GREES, AND MANSLAUGHTER, HOW DISTINGUISHED.

Murder is the unlawful killing of a human being with
malice aforethought.^

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.^

All murder which is perpetrated by means of poison or
lying in wait, torture, or by any other kind of wilful,

* People V. Dennis, 39 Cal. 637; People v. Bumberger, 45
Cal. 650; People v. Messersmith, 61 Cal. 246; People v.
Pico, 62 Cal. 54; People v. Hoin, 62 Cal. 120; People v.
Hamilton, 62 Cal. 384; People v. Hurtado, 63 Cal. 288.

» Penal Code 187.

2 Penal Code 188.



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426 CRIMINAL LAW AND PROCEDURE.

deliberate and premeditated killing, or which is committed
in the perpetration or attempt to perpetrate arson, rape,
robbery, burglary or mayhem, is murder of the first degree,
and all other kinds of murders are of the second degree."
Manslaughter is the unlawful killing of a human being
without malice. It is of two kinds:

1. Voluntary — upon a sudden quarrel or heat of passion.

2. Involuntary — in the commission of an unlawful act
not amounting to felony, or in the commission of a law-
ful act which might produce death, in an unlawful man-
ner, or without due caution and circumspection.*

In dividing murder into degrees the legislature intended
to assign to the first as deserving of greater punishment,
all murders of a cruel and aggravated character, and to the
second^ all other kinds of murder which are murder at com-
mon law, and to establish a test by which the degree of
every case of murder may be readily ascertained. That
test may be thus stated: Is^the killing wilful (that is to say
intentional), deliberate and premeditated? If it is, the case
falls within the first, and if not. within the second degree.
There are certain kinds of murder which carry with them
conclusive evidence of premeditation; these the legislature
has enumerated in the code definition already given you,
and has taken upon itself the responsibilty of saying that
they shall be deemed and held to be murder of the first
degree. These cases are of two classes :

First. Where the killing is perpetrated by means of
poison, etc. Here the means used is held to be conclusive
evidence of premeditation.

Second. Where the killing is done in the perpetration,
or attempt to perpetrate, some one of the felonies enum-
erated in the statute, here the occasion is made conclusive
evidence of premeditation. Where the case comes within
either of these classes the test question, "Is the killing wil-
ful, deliberate and premeditated?** is answered by the stat-
ute itself, and the jury have no option but to find the pris-
oner guilty in the first degree. Hence, so far as these

8 Penal Code 189. ^

* Penal Code 192.



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APPROVSD IN6TBUCTK»ff8. 427

two cases are concerned, all difficulty as to the question
of degree are removed by the statute. But there is another
and much larger class of cases included in the definition
of murder in the first degree, which are of equal cruelty
and aggravation with those enumerated, and which, owing
to the different and countless formsi which murder assumes,
it is impossible to describe in the statute. In this class the
legislature leaves the jury to determine, from all the evi-
dence before them, the degree of the crime, but prescribes
for the government of their deliberations the same test
which has been used by itself in determining the. degree
of the other two classes, to wit, the deliberate and precon-
ceived intent to kill. It is only in the latter class of cases
that any difficulty is experienced in drawing the distinc-
tion between murder of the first and murder of the second
degree, and this difficulty is more apparent than real. The
unlawful killing must be accompanied with a deliberate
and clear intent to take life in order to constitute murder
of the first degree. The intent to kill must be the result
of deliberate premeditation. It must be formed upon a pre-
existing reflection and not upon a sudden heat of passion
sufficient to preclude the idea of deliberation.

There need be, however, no appreciable space of time
between the intention to kill and the act of killing — ^they
may be as instantaneous as successive thoughts of the
mind. It is only necessary that the act of killing be pre-
ceded by a concurrence of will, deliberation and premedi-
tation on the part of the slayer, and if such is the case, the
killing is murder in the first degree, no matter how rapidly
these acts of the mind may succeed each other, or how
quickly they may be followed by the act of killing.*^

A man may do a thing wilfully, deliberately and inten-
tion^ly from a moment's reflection as well as after
pondering over the subject for a month or year. He can
premeditate, that is, think before doing the act, the moment
he conceives the purpose, as well as if the act were the
result of long preconcert or preparation. There is noth-
ing in the sections of the Penal Code which relate to this

6 People V. Nlchol, 34 Cal. 213-5.



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428 CRIlflNAL LAW AND PROCSDURE.

subject, which indicate that the legislature meant to assign
any particular period to this process of deliberation or pre-
meditation, in order to bring the act within the first degree.*

If the unlawful killing is done without the provocation
and sudden passion which reduces the offense to man-
slaughter, or is done in the commission of an unlawful
act, the natural consequences of which are dangerous to
life, or is committed in the attempt to perpetrate a felony
other than those mentioned in the description of murder in
the first degree, or the circumstances of the killing show
an abandoned heart, this is murder of the second degree,
imless the evidence proves the evistence in the mind of the
slayer of 'the specific intent to take life. If such specific
intent exists at the time of such unlawful killing, the offense
committed would of course be murder of the first degree.'

Manslaughter, as you have already been instructed, is
the unlawful killing of a human being without malice.

The words **malice'' and **maliciously" import a wish to
vex , annoy, or injure another person, or an intent to do a
wrongful act, established either by proof or presumption of
law.^

Manslaughter is principally distinguishable from murder
in this: That though the act which occasions the death be
unlawful or likely to be attended with bodily mischief, yet
the malice, either express or implied, which is the very
essence of murder, is presumed to be wanting, and the act
being imputed to the infirmity of human nature, the cor-
rection ordained for it is proportionately lenient.*

And when the mortal blow, though unlawful, is struck
in the heat of passion, excited by a quarrel, sudden and of
sufiicient violence to amount to adequate provocation, the
law, out of forbearance for the weakness of human nature,
will disregard the actual intent, and will reduce the offense
to manslaughter. In such case, although the intent to

« People V. Bealoba, 17 Cal. 395.

f People V. Doyeli, 48 Cal. 96; Ex parte Wolf, 57 Cal. 94.

« Penal Code 7, sub. 4.

» Com. V. Webster, 5 Cush. 307.



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APPROVBD IHBTEUCnONS. 429

kill exists, it is not that deliberate and malicious intent
which is an essential element in the crime of murder.^®

But if the intent exists and the killing is unlawful, it
will be murder, even though done upon a sudden quarrel
or heat of passion, unless there was adequate provocation.
In considering what is regarded as such adequate provo-
cation, it is a settled rule in law th^t neither provocation
by words only, however opprobrious, nor contemptuous, or
insulting actions, or gestures, without an assault upon the
person, nor any trespass against lands or goods, are of
themselves sufficient to reduce the offense of an inten-
tional homicide with a deadly weapon from murder to man-
slaughter.^*

If the accused was engaged in the performance of an
unlawful act, and if the deceased attempted in a lawful
manner to prevent the performance of such unlawful act,
and if, while so endeavoring to prevent the same, the defend-
ant in anger, and solely for the purpose of revenge, or to
enable him to carry out his unlawful design, so interfered
with by said deceased, attacked the latter with a deadly
weapon, intending to kill said deceased, and did, under
such circumstances, carry such intention into execution,
the fact that defendant was in a passion would not miti-
gate or excuse such homicide, but the crime committed
would in such case be murder in the first degree. It is
not less murder because the act is done suddenly after
the intent to commit the homicide is formed. It is suffi-
cient that the malicious intention precedes and accom-
panies the act of homicide.

In determining the intention of the defendant at the time
of thct transaction complained of, it is important to con-
sider the means used to accomplish the killing. The intent
or intention is manifested by the circumstances connected
with the offense, and the sound mind and discretion of the

10 People V. Freel, 48 Cal. 437.

11 Com. V. Webster, 5 Cush. 305, 307; Beople v. Turley,
50 Cal. 471; People v. Murback, 64 Cal. 369; People v,
Tamkin, 62 Cal. 468.



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CRIMINAL LAW AUTD PBOCEDURE.

accused. All persons are of sound mind who are neither
idiots, nor lunatics, nor aflFected with insanity.^*

A person must be presumed to intend to do that whicli
he voluntarily and wilfully does in fact do, and must also
be presumed to intend all the natural, probable and usual
consequences of his own acts. Therefore, when one per-
son assails another violently with a dangerous weapon,
likely to kill, and which does in fact destroy the life of the
party assailed, the natural presumption is that such assail-
ant intended death, or other great bodily harm, and in tlie
absence of evidence to the contrary this presumption must
prevail.

The wilful use of a deadly weapon without excuse or
provocation, in such a manner as to imperil life, generally
indicates a felonious intent.^'

Upon a trial for murder, the commission of the homi-
cide by the defendant being proved, the burden of proving
circumstances of mitigation, or that justify or excuse it,
devolves upon him unless the proof on the part of the
prosecution tends to show that the crime committed only
amounts to manslaughter, or that the defendant was justi-
fiable or excusable.^*

But the defendant is only bound under this rule to pro-
duce such evidence as will create in the minds of the jury
a reasonable doubt of his guilt of the offense charged. It
can make no difference whether such reasonable doubt is
the result of evidence on the part of the defendant tend-
ing to show circumstances of mitigation, or that justify or
excuse the killing, or from other evidence coming from
him or the prosecution.^^

THE RIGHT OF SELF-DEFENSE.

Homicide is justifiable when committed by any person
in either of the following cases :

12 Penal Code 21.

II 2 Bishop C. Law. sees. 680, 681; Com. v. Webster. 5

Cush. 305; People v. Munn, 2 W. C. R. 748.
1* Penal Code 1105.
15 People V. Bushton, 80 Cal. 160.



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APPROVED mSTRUCnONSfc 431

1. When resisting any attempt to murder any person, or
to commit a felony, or to do some great bodily injury upon
any person; or,

2. When committed in defense; of habitation, properly or
person against one who manifestly intends, or endeavors,
by violence or surprise, to commit a felony ; or against one
who manifestly intends and endeavors, in a violent, riotous
or tumultuous manner, to enter the habitation of another
for the purpose of oflFering violence to any person therem ;
or,

3. When committed in the lawful defense of such r»er-
son, or of a wife or husband, parent, child, master, mis-
tress or servant of such person, when there is reasonable
ground to apprehend a design to commit a felony, or to
do some great bodily injury, and imminent danger of such
design being accomplished; but such person, or the person
in whose behalf the defense was made, if he was the assail
ant or engaged in mortal combat, must really and in good
faith have endeavored to decline any further struggle before
the homicide was committed; or,

4. When necessarily committed in attempting, by lawful
ways and means, to apprehend any person for any felony
committed, or in lawfully suppressing any riot, or in law-
fully keeping and preserving the peace.^

A bare fear of the commission of any of the offenses
mentioned in subdivisions two and three of the preceding
section, to prevent which homicide may be lawfully com-
mitted, is not sufficient to justify it. But the circumstances
must be sufficient to excite the fears of a reasonable per-
son, and the party killing must have acted under the influ-
ence of such fears alone.^

The court instructs the jury that the acts which a defend-
ant may do and justify under a plea of self-defense depend
primarily upon his own conduct, and secondarily upon the
conduct of the deceased. There is mo fixed rule applicable
to every case, though certain general principles, well estab-

1 Penal Code 197.

2 Penal Code 198.



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432 CRnflNAL LAW AND PROCEDURE.

lished, stand forth as guides for the action of men and
measures for the jury's determination of their deportment.

You are instructed that self-defense is not available as
a plea to a defendant who has sought a quarrel with the
design to force a deadly issue and thus, through his fraud,
contrivance or fault, to create a real or apparent necessity
for killing."

You are further instructed that self-defense is not avail-
able as a plea to one who, by prearranged duel, or by
consent has entered into a deadly mutual combat in which
he slays his adversary. A man may not wickedly or wil-
fully invite or create the appearances of necessity or the
actual necessity which, if present to one without blame,
would justify the homicide.*

The court instructs the jurv that where one without fault
is placed under circumstances sufficient to excite the fears
of a reasonable person that another designs to commit
a felony or some great bodily injury upon him, and to
afford grounds for reasonable belief that there is imminent
danger of the accomplishment of this design, he may, act-
ing under these fears alone, slay his assailant and be justi-
fied by the appearances. And, as where the attack is sud-
den and the danger imminent, he may increase his peril
by retreat, so situated he may stand his ground, that becom-
ing his wall, and slay his aggressor, even if it be proved
that he might more easily have gained his safety by flight.*

So, too, under such circumstances, he may pursue and
slay his adversary. But the pursuit must not be in revenge,
nor after the necessity for self-defense has ceased, but
must be prosecuted in good faith to the sole end of winning
his safety and securing his life.**

3 People V. Hecker, 109 Cal. 462; People v. Robertson, 67
Cal. 646; Stewart v. State, 1 Ohio St. 66.

* People V. Hecker, 109 Cal. 462; State v. Partlow, 90 Mo.
608; State v. Underwood, 37 Mo^ 225; 1 Bishop Crim.
Law, sec. 870; Gilleland v. State, 44 Texas 356; Clifford
V. State, 58 Wis. 478; Tate v. State, 46 Ga. 151.

5 People V. Hecker, 109 Cal. 463; People v. Herbert. 61
Cal. 544; People v. Gonzales, 71 Cal. 569; People v.
Ye Park, 62 Cal. 204; People v. Robertson 67 Cal. 646;
Runyon v. State, 57 Ind. 84; Erwin v. State, 29 Ohio
St. 186.

« People V. Hecker. 109 Cal. 463.



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APPROVED INSTRUCTIONS. 48^

Tl?e court instructs the jury th^t the mere apprehension
of danger is insufficient to justify a homicide. The fear
must have been produced by circumstances such as would
be sufficient to excite the fears of a reasonable .person. The
law of self-defense is founded on necessity, s^nd in orcjer
to justify the taking of life upon this ground it piust not
only appear that the defendant had reason to believe, and
did believe, that he was in danger of his life, or of receiv-
ing great bodily harm, but it must also appear to the
defendant's comprehension, as a reasonable man, that to
avoid such danger it was absolutely necessary for him to
take the life of the deceased J

ASSAULT.

ASSAULT TO MURDER.

The court instructs the jury,' that if you believe from the
evidence beyond a reasonable doubt, that the defendant
committed an assault upon the person of the witness
with a deadly weapon, as charged in the informa-
tion, with intent to kill and murder the said , then

you should find the . defendant guilty as charged.

WHEN ASSAULT WITH A DEADLY WEAPON.

The court further instructs the jury that if you believe
from the evidence beyond a reasonable doubt, tliat the
defendant ccmimitted an assault upon the person of the wit-
ness — with a deadly weapon, as charged in the

information, but not with an intent to kill and murder the

said , then you should find the defendant guilty

of assault with a deadly weapon.

DEADLY WEAPON — WITHOUT SPECIFIC INTENT.

The court further instructs the jury, that if you believe
from the evidence, that the defendant committed an assault

upon the person of the witness with a deadly

weapon, as charged in the information, but without any
specific intent to kill and murder the said , then

7 People V. Morlne, 61 CaL 367; People v. Scrogglns, 37
Cal. 675.



CRIMC8 - 23



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434 CRIMINAL LAV9 AND PROCEDURE.

you should find the defendant guilty of assault with a
dead!}' weapon.

DEADLY WEAPON — WHEN SIMPLE ASSAULT.

The court instructs the jury, that if you believe from the
evidence beyond a reasonable doubt, that the defendant
committed an assault upon the person of the witness

, as charged in the information, but do not find

from the evidence that such assault was made with a deadly

weapon or with intent to kill and murder the said ,

then you should find the defendant guilty of assault.

ASSAULT — SI M PLE.

The court further instructs the jury that an assatilt is
an unlawful attempt, coupled with the present ability, to
commit a violent injury upon the person of another.

DEADLY WEAPON — WORDS, ETC., WILL NOT JUSTIFY.

The court further instructs the jury that no words of
insult or reproach, however grievous or opprobrious, will
justify an assault with a deadly weapon.^

DEADLY WEAPON, WHAT 18.

A deadly weapon is any weapon or instrument, which
from the manner it may appear in evidence to have been
used was likely to produce death or great bodily injury.

MALICE AND MALICIOUSLY.

The court further instructs the jury that the words "mal-
ice*' and "maliciously" import a wish to vex, annoy or injure
another person, or an intent to do a wrongful act, estab-
lished either by proof or by presumption of law.

PERJURY^DE FACTO OFFICER ADMINISTERING OATH.

The court further instructs the jury that while it is
necessary for the prosecution, in order to secure a convic-

1 People V. lams, 57 Cal. 120.



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APPROVKD INSTRUCTIONS. 435

tion for perjury, to show that the person administering the
oath was authorized by law to administer oaths, still, if it
be shown by the evidence beyond a reasonable dotibt, that
the oath was administered by a person who was then and

there an acting in the county of , state

of California, where the oath was administered, this is
sufficient evidence of his authority to administer an oath.

PERJURY— PROOF OF PART OF ALLEGED FALSE STATE-
MENTS.

The Court further instructs the jury that it is not neces-
sary to prove or establish all of the matters alleged and set
up in the information as constituting the charge of perjury
againgt the defendant herein. It is sufficient if you believe
from the evidence beyond a reasonable doubt, that the
prosecution has proven that any of the matters charged in
the information were so sworn to or testified to by the

defendant on the occasion , as charged in the

information, and that the same is proven by the prose-
cution, beyond a reasonable doubt, to have been false and
untrue at the time the same was so sworn to, or testified
to, to the then knowledge of the defendant, as charged in
the information, and that the same was material.

MATERIALITY.

The court further instructs the jury that it is no defense
to a prosecution for perjury that the accused did not
know the materiality of the false statement made by h^.ni:
or that it did not in fact, aflPect the proceeding in or fcr
which it was made. It is sufficient that it was material, and
might have been used to affect such proceeding.^

An unqualified statement of that which one does not
know to 'be true is equivalent to a statement of that which
one knows to be false. But it must be shown that such



Online LibraryCalifornia Charles Howard FairallCriminal law and procedure of California including the penal code of California → online text (page 35 of 77)