People v. Casade

The defendant was accused by indictment found by the grand jury of Los Angeles County of the crime of murder. Following a verdict of guilty without recommendation he was sentenced to suffer the extreme penalty. He appeals from the judgment of conviction and from the order denying his motion for a new trial.

On the twenty-ninth day of November, 1923, at about 4 o’clock in the afternoon the defendant became engaged in an altercation with a thirteen year old Mexican boy in or near the city of San Fernando. In the course of the dispute the defendant threatened to hit the boy. The boy’s sister-in-law overheard the threat and called the police by telephone. About ten minutes later the deceased, Oscar Longfellow, a police officer, answered the call. On the arrival of the officer the defendant was standing in the middle of the street in front of the house where the boy was living. The officer approached the defendant and ordered him to go with him to the police station. The two were walking side by side until they reached a point on the

[1] On his motion for a new trial the defendant contended and on this appeal urges that the court gave improper instructions to the jury on the matter of recommendation of punishment and that the court erroneously refused other instructions requested by the defendant. The principal instruction complained of and which was given is as follows: “If the jury in this case should find the defendant guilty of murder in the first degree and they also shall find the further fact that there is some extenuating fact or circumstance in the case, it is within their discretion to pronounce such sentence as will relieve the defendant from the extreme penalty of the law. The penal code invests a jury in a criminal case for murder with the discretion, but the discretion is not an arbitrary one, and is limited to determining which of the two punishments shall be inflicted, and is to be employed only when the jury is satisfied that the lighter penalty should be imposed. If the evidence shows the defendant to be guilty of murder in the first degree, but does not show some extenuating fact or circumstance, it is the duty of the jury to find a simple verdict of murder in the first degree and leave with the law the responsibility of affixing the punishment.” It is contended that this instruction is prejudicially erroneous as an attempt on the part of the court to circumscribe and control the discretion given to the jury in such cases by section 190 of the Penal Code, which reads: “Every person guilty of murder in the first degree shall suffer death, or confinement in the state prison for life, at the discretion of the jury trying the same; ...” It is urged that the instruction unduly and prejudicially affected the discretion to determine the penalty which said section has exclusively reposed in the jury. But by a long line of decisions in this state it has been held that the giving of said instruction is not

In the case of State v. Thorne, 39 Utah, 208 [ 117 Pac. 58 ], also earnestly relied upon by the defendant, it was held that by the instruction there given the court undertook to

[2] The defendant further complains of the following which was embodied in an instruction given at the request of the prosecution: “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 defendant 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 mitigate 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 sufficient that the malicious intention precedes and accompanied the act of homicide.” It is contended that there was no evidence in the case as to which this instruction could be applicable. The portion objected to is but a part of an instruction covering over seven pages in the transcript wherein the court at length expounded the law with reference to murder in the first degree, murder in the second degree, and manslaughter, and there was substantial -basis in fact for including it as a part of the charge. The evidence showed

[3] Prejudicial error is asserted because of the refusal of the court to instruct the jury that an officer has no authority to make an arrest for a misdemeanor without a warrant, unless the offense be committed in his presence; that the defendant has the right to resist an unlawful arrest and that an arrest made by an officer for a misdemeanor not committed in his presence is an illegal arrest. There was no error in refusing these instructions. Assuming that the arrest in its inception was without justification in that the defendant’s threat to harm the boy was not made in the officer’s presence, it would not follow that the defendant would be justified in murdering the officer in an attempt to release himself from such custody. In the light of subsequent events the authority of the officer to make the arrest in the first instance became an immaterial question (People v. Wolfgang, supra).

[4] The defendant offered an instruction on the subject of manslaughter embodying therein the statement that the jury could take into consideration the state of mind of the accused, as to intoxication and his capacity to act maliciously. The court refused the instruction as having been covered by other instructions given. The refusal is claimed as error. Other instructions which were given fully covered the subject of manslaughter and the consideration which the jury could give to voluntary intoxication as bearing on the purpose, motive, or intent of the defendant and in determining the degree of the crime. The court was not required to state the law to the jury more than once (People v. Feld, 149 Cal. 464 [ 86 Pac. 1100 ]; 8 Cal. Jur. 314, and cases cited).

[5] The question of the insufficiency of the evidence to justify the verdict was first urged by defendant’s counsel

[6] It is asserted by defendant’s counsel that the defendant was intoxicated at the time of the shooting, that the evidence is without conflict on that subject and that therefore he was not deserving of the extreme .punishment. The record discloses a very substantial conflict in the evidence on the question of defendant’s intoxication. Two witnesses testified that he appeared to be intoxicated. Another witness testified that he was not intoxicated and it was in evidence that the defendant prior to the trial stated that he had consumed a pint and a half of wine at his meal at noon that day, which was four hours before the shooting, that he was not drunk when the shooting occurred, and that he remembered clearly everything that had happened that day. Furthermore, tlie effect on their verdict of the intoxication of the defendant, if such existed, was for the jury to determine under section 22 of the Penal Code. The question of whether the lighter punishment should have been inflicted was exclusively for the jury’s determination. “If the reviewing court is satisfied that there is sufficient evidence to justify a verdict of murder of the first degree, its inquiry on that point is ended” (People v. Ellis, supra). The evidence was sufficient to justify the verdict herein and as we find no error in the record the judgment and order are affirmed.

Seawell, J., Myers, C. J., Lawlor, J., Waste, J., Lennon, J., and Richards, J., concurred.

Rehearing denied.

All the Justices concurred.