People v. Kolez

145 P.2d 580, 23 Cal. 2d 670, 1944 Cal. LEXIS 186

• Court: California Supreme Court
• Decided: February 1, 1944
• Docket: Crim. 4507
• Status: Published

Opinions

THE COURT.

An information was filed charging defendant with the murder of Roseoe Edward Sutton in Lassen County on December 25, 1942. Defendant pleaded not guilty and not guilty by reason of insanity. After trial, the jury returned a verdict finding defendant guilty of murder in the first degree, without recommendation. Defendant then moved to withdraw the insanity plea. The trial court informed defendant that as a result of the verdict there was no alternative except to pronounce the death sentence if he withdrew his plea of insanity. Defendant and his counsel assured the court that they fully understood the effect of the verdict and in response to the court’s inquiry stated that they still desired to withdraw the insanity plea. The motion to withdraw the plea was thereupon granted and defendant was sentenced to death. He orally announced this appeal from the judgment.

Defendant is a cook by trade and at the time of the homicide was employed in a restaurant at Doyle, Lassen County. Deceased was a regular patron of the restaurant. He died from stab wounds in the abdomen inflicted by defendant while the two men were in the restaurant. There was no eyewitness to the scuffle which preceded the stabbing, but the restaurant proprietor heard the noise incident thereto, and, turning, saw the deceased bending over and the defendant holding a knife, which the proprietor took from him. Apparently the homicide resulted from defendant’s jealousy over attentions shown by the deceased to a waitress in the restaurant.

No challenge is made as to the sufficiency of the evidence to support the verdict and judgment, and further statement of the facts surrounding commission of the homicide is therefore unnecessary.

Defendant’s sole contention upon this appeal is that the trial court erred in giving the following instruction:

“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 are some extenuating circumstances or facts in the case, it is within their discretion to pronounce such a sentence as will relieve the defendant from the extreme penalty of the law. The Penal Code invests a Jury in a criminal case of murder with the discretion, limited to determining which of 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 facts or circumstances, 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 fixing the punishment. ’ ’

Defendant argues that this instruction is prejudicially erroneous as an attempt on the part of the trial 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; ...” The trial court also gave an instruction in the language of the code section.

It has been held in a long line of decisions that the giving of an instruction similar to the one above quoted is not erroneous. (People v. Jones, 63 Cal. 168, 169-170; People v. Murback, 64 Cal. 369, 370 [30 P. 608]; People v. Brick, 68 Cal. 190, 191-192 [8 P. 858]; People v. Olsen, 80 Cal. 122, 128 [22 P. 125]; People v. Bawden, 90 Cal. 195, 197-198 [27 P. 204]; People v. Rogers, 163 Cal. 476, 483-484 [126 P. 143]; People v. Harris, 169 Cal. 53, 70 [145 P. 520]; People v. Wolfgang, 192 Cal. 754, 761-762 [221 P. 907]; People v. Reid, 193 Cal. 491, 496 [225 P. 859]; People v. Casade, 194 Cal. 679, 682-683 [230 P. 9]; People v. Perry, 195 Cal. 623, 640 [234 P. 890]; People v. Craig, 196 Cal. 19, 28 [235 P. 721]; People v. Bollinger, 196 Cal. 191, 207 [237 P. 25]; People v. Arnold, 199 Cal. 471, 500 [250 P. 168]; People v. King, 13 Cal.2d 521, 525 [90 P.2d 291]; People v. Smith, 15 Cal.2d 640, 651 [104 P.2d 510]; cf. People v. Smith, 13 Cal.2d 223, 228 [88 P.2d 682]; and see People v. Welch, 49 Cal. 174, 178.)

The judgment is affirmed.