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p. 154[No. 10,523. Department Two.] PEOPLE v. GEORGE GUANCE.
Headnote
Instruction—Murder—Criminal Law.—Upon the trial of an indictment for murder, it is error to instruct the jury, that if they find from the evidence that the defendant killed the deceased, as alleged In the indictment, or that, being present, he aided others in the unlawful killing of the deceased, and that such killing was with malice aforethought, they will find the defendant guilty of murder in the first degree.Appeal from a judgment of conviction, and an order denying a new trial, in the Superior Court of the County of Mendocino. McGarvey, J.
J. A. Cooper, for Appellant.
A. L. Hart, Attorney-General, for Respondent.
On the trial of this case, the Court below instructed the jury as follows:
“If the jury find from the evidence,that the defendant killed the deceased, as alleged in the indictment, or that, being present, he aided others in the unlawful killing of the deceased, and that such killing was with malice aforethought, you will find the defendant guilty of murder in the first degree.”
The defendant was found guilty of murder in the first degree, and on this appeal assigns as error the foregoing instruction. The instruction was erroneous. (People v. Long, 39 Cal. 695 ; People v. Valencia, 43 id. 552; People v. Doyell, 48 id. 85.) Judgment and order reversed, and new trial ordered.