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District Court of Appeal, Third District, California.


Cr. 1912.

Decided: April 06, 1946

John L. Brannely and Robert A. Zarick, both of Sacramento, and Wm. A. White, of San Francisco, for appellants. Robert W. Kenny, Atty. Gen., and James O. Reavis, Deputy Atty. Gen., for respondent.

In this case defendants Oscar Williams and Frank Williams were found guilty of murder of the first degree, the punishment being fixed at imprisonment for life. Motion to reduce the degree of the crimes from murder in the first degree to murder in the second degree was denied, and an appeal was taken to this court. One of the grounds for reversal urged herein is that the jury was erroneously instructed relative to the distinction between first and second degree murder. Recent decisions of our Supreme Court in which the same or similar instructions were held erroneous to an extent justifying reversal of the judgments of conviction indicate that this contention is well founded. This conclusion has been concurred in by respondent, and a stipulation has been filed in this court signed by attorneys for both appellants and respondent, consenting and requesting that this court modify the judgments by reducing them from judgments of first degree murder to judgments of second degree murder, and as so modified that said judgments be affirmed. On the filing of said stipulation the submission of the cause was set aside and said cause put upon the calendar for further proceedings. At the time set for hearing, counsel for both parties appeared, and, upon motion of counsel for respondent, concurred in by counsel for appellants, that the judgments be modified and affirmed as aforesaid, it is ordered that the judgments of the trial court be, and they are hereby, modified by reducing them to murder of the second degree, and, as so modified, said judgments are affirmed. Said causes are remanded to the trial court with directions to pronounce judgments upon said defendants sentencing them and each of them for the term prescribed by law for murder of the second degree.

ADAMS, Presiding Justice.

PEEK and THOMPSON, JJ., concur.