PEOPLE v. HESLEN (1945)

Defendant appeals from a judgment imposing the death penalty for murder of the first degree and from an order denying his motion for a new trial.

The homicide involved in this action occurred on July 15, 1944, between 4 and 4:30 p. m. in the Blue Ribbon Cafe in Sacramento. The cafe has two entrances, the front being on 12th Street, the rear opening on an alley. Along one side of the cafe runs a bar where beverages are sold and along the other, booths to accommodate customers. The deceased, Violet Heslen, the wife of defendant, was sitting on a stool at the rear end of the bar, having been served a drink. There were 25 or 30 people in the cafe. Jack Fitzgerald, the properietor of the establishment, was tending bar. A short time after the deceased had arrived at the cafe, defendant entered by the rear door and stood or sat beside and talked with her for a short time. According to the evidence adduced by the prosecution, defendant picked up a knife lying on a sink drain board back of the bar and placed it on the bar under his arm. Its presence was revealed to deceased when defendant shifted his arm in ordering a drink. She grasped the knife and threw it across the room. Defendant ran across the room, retrieved the knife and started toward deceased with it in his right hand. Deceased fled behind the bar entering from the rear, with defendant in pursuit. She passed Fitzgerald about the middle of the bar. The latter in his endeavor to intercept defendant was struck and shoved aside by the defendant. The pursuit continued with deceased ducking under the front end of the bar and proceeding toward the rear on the customers' side of the bar. Deceased was overtaken by defendant when she reached the rear of the bar. There he grasped her around the chin or mouth with his left arm, turned her toward the bar or front of the cafe and cut her throat with the knife. He was struck by persons in the cafe with a stool and a bottle. He went behind the bar, wiped his hands and fled through the back door. After a pursuit he was captured.

The events in the defendant's words occurred as follows: ‘Well, we (defendant and deceased) talked on there. I don't know what we did talk about. We were talking about * * * one of the main topics was her drinking there, and I told her than I had told Jack not to give her any more whiskey, and then she said something about me sitting down, and I said, ‘No, you sit there’; and she insisted that I sit down, which I did, on the stool, and she stood up at the corner of the bar, and I had ordered the drink previous to this from Mrs. Fitzgerald. She ordered a shot, and I ordered a bottle of beer, and we were talking I don't know just what the conversation was. There was a lot of things that I don't remember in there, because I had been drinking. I knew that. The first thing I knew, I noticed the knife by her arm * * * by her hand and by her arm, like this (indicating), and I pushed my arm over toward this knife to hide it, and I was going to turn around to Fitzgerald and order the drink, and she said * * * First, I said, ‘When I get this drink, I am doing to drink it and go back to Oakland to work tonight,’ and she said, ‘What's your hurry?’ And I said, ‘I promised the man I would be back,’ and she said, ‘You have got some bitch over there.’ And I said, ‘No, I haven't. I don't do anything like that.’ I said ‘All I do is work, because I have got to send money to my family.’ She said, ‘Yes, to your family and that bitch back there, too,’ * * * meaning my former wife. Then I turned to Jack and was going to ask him about the drink, when I felt a stab in my hand * * * a sting like in my hand. Q. In which hand? A. In my left hand, and, as I did, it kind of brought me to, and I got off of the stool, and in getting off of the stool, I stumbled, and by that time she had thrown this knife, it looked to me like over in the corner, and I went over and I picked the knife up and threw it back on this drain board, back of the bar, and then I turned and picked my glasses up that had dropped out of my pocket * * * not these, * * * they were in a leather case. Not these. I lost them in that scuffle there. I turned and come back up, and I seen the knife again, and I went toward her, because in all her other threats to commit suicide, I knew I could talk to her, and talk her out of it, and then she started to run, and I run after her. I knew she would do something with herself with that knife, because she had made threats before; and at one time she took some sleeping pills and tried to commit suicide. I run around the bar and run under the opening. * * * She run under and I run under behind her, and as I came out of the opening, she was nearly to the end of the bar, and I put my glasses in my back pocket then, and I seen her stoop over or bend over with her hand up to her throat, and I run and grabbed her then and straightened her up, and got my arm through her elbow, like this (illustrating) through her left hand, and was reaching for the knife, trying to get this knife away from her, and then someone struck me over the head with a stool, * * * I guess it was a stool. I knew I was struck with something, and I found out afterwards it was a stool. * * * When I was falling, that is the last I remember until I come to in the station over here in the hospital.'

Defendant contends that the evidence fails to show premeditation necessary for murder of the first degree and would sustain no more than manslaughter or second-decree murder. He also complains of instructions given to the jury.

Looking at the background, the circumstances surrounding the homicide, it appears that defendant was fifty years old. He has been a railroad man and since 1913 has been in the employ of various railroads throughout the country, holding such jobs as switchman, brakeman, yardmaster, and yard conductor. At the time of his arrest he was working for the Southern Pacific Company. Many witnesses testified to his good reputation for peace and quiet. He first met the deceased in Detroit, Michigan, in the year 1931. At that time defendant was living with his second wife and four children. Defendant and Violet soon became intimate acquaintances. In 1940 defendant's second wife divorced him and in August, 1943, Violet met the defendant at Spokane, Washington, the residence of defendant's mother and one sister, and they were married. Violet had also been married before, and according to the testimony of defendant, was undivorced from her former husband, which fact he did not know at the time of their marriage. Defendant and Violet had lived together as man and wife prior to their marriage. In the early part of 1943 they lived in a flat over the Blue Ribbon Cafe. While living in that place, they, and particularly Violet, frequented the Blue Ribbon Cafe. There they formed the acquaintanceship of Jack Fitzgerald, the owner of the cafe, and Stella Fitzgerald, his wife. The married life of Violet and defendant was married by frequent quarrels and separations. The quarrels seemed to be caused chiefly by conduct on the part of Violet consisting of excessive drinking, jealous accusations of misconduct with other women and the fact that defendant sent sums of money to his former wife and his children. While in Spokane the defendant and deceased lived for the first couple of months in the upstairs portion of defendant's sister's home. His sister testified that because of the cursing of Violet, directed at defendant and herself and threats of bodily injury, the latter and her husband requested that she move. Thereafter she and the defendant did move and resided in the Hotel Empire.

Defendant and the deceased left Spokane separately on the 5th and 6th of April, 1944, agreeing to later meet in Sacramento. Defendant hired out to the Southern Pacific Company in Portland, Oregon, and took up residence in Oakland and Roseville, California. His wife came to Sacramento and resided in the home of Mr. and Mrs. Fitzgerald. She obtained work as a bus driver for the United States Signal Depot in Sacramento. Defendant claimed that the Fitzgeralds held an influence over Violet, that they sold her whiskey over his objection and tried to alienate her from him and that they were antagonistic toward him and very friendly with decedent. It appears that when decedent went to Spokane to meet the defendant and get married, she was without her engagement ring, which had been pawned or given as security to the Fitzgeralds. The ring was forwarded when defendant sent money to the Fitzgeralds.

After leaving Spokane, defendant and his wife corresponded amiably, and in June, 1944, she came to the defendant in Roseville. However, about 10 days later, on June 23, 1944, she left and went back to the Fitzgeralds in Sacramento. While they were living apart during this time, defendant made occasional trips, usually of one day duration, to see his wife. While in Sacramento on one of these trips, on June 13, s944, decedent made a report to the police that defendant was bothering her. Defendant was located on the street and advised to stop bothering his wife. He, at that time, denied that he had been bothering her and at the trial explained that he had just come into town that morning, rode with his wife on the bus driven by her to the Signal depot, and waited outside to see her, but moved on when advised by the Signal depot policeman that he could not ride in on the bus.

The last time defendant saw deceased, prior to July 15, 1944, the date of the homicide, was on June 27, 1944. The two had stayed overnight at the Californian Hotel after defendant came to Sacramento on June 26th. According to the defendant everything was peaceable between them at that time and nothing happened between then and July 15, 1944, to disrupt their friendly relationship. He testified that just a couple of days prior to July 15th, she called him up by telephone and requested that he come to see her. However, the prosecution introduced in evidence a letter, undated, but postmarked July 7, 1944, addressed to deceased from defendant, reading in part as follows: ‘Vi, Honey:

‘I am so nervous over receiving your nice letter, but will try to write to you. That is good news to have you say that I can have you back again. I have become so desperate lately I don't know what to do. Honest honey, I am right on the verge of doing anything, I made up my mind that I did not want to live any more without you. I couldn't stand it any longer, and I knew that it was the only way out for me. You can never tell me that you have suffered as I have. You know how good I looked three or four months ago and you know how I look now so you must know what I have suffered and there is only one cure for me honey and that is you. I have not been drinking; I swear to this on Jimmy's grave. * * *’

‘* * * it is only the pain in my heart and the suffering I have gone through over you. In a way I am glad that this has happened to me as it woke me up and I know now that you will have a new and different man. No batting you around, and nothing I ever did before except to love you. Oh, honey come to me soon please. I need you to talk to me and hear from your own lips that this affair you are in now has been forgotten. You are my only cure and you know it. * * * I wrote you a nasty letter and you will get it after you get this one; it is an answer to your letter of the fifth, Your dear pal letter. I was going to wait till I had your answer to it then I was all done with my life. I was not going to do you any harm but I was just going out the easiest way I knew so that you would know that to the last I kept my promise (I am not so nervous as at first.) See what a nice letter can do for me. * * * I don't see why I didn't do as you said that nite and let you go and send me the letter as you wanted to, but I knew you wanted to go back to him and I just couldn't let you go on the last nite that I ever expected to see you again, I was really desperate then Vi and your talking to me, when you said, ‘Please honey’ and put your arms up for me then it saved you honey as I know now that something awful could have happened then and I want to thank you Vi dear for saving a damned old fool from doing something desperate. I thought it was so mean of you not to want to be with me on the last nite that you knew I would be there with you and not knowing when I would see you again if ever. I don't want you to get drunk honey when you have your day off. You are so nice and good when you don't drink and remember I can always tell if you have been drinking or not, don't get drunk any more only with me. * * * I sure feel better now that I have a nice letter from you but boy just think how good I will feel when I can come home to you again. These are sure long letters, but I hope you don't mind reading them. You should receive this tomorrow as I am going up town to the post office to mail it or I may go to Oakland Pier and mail it on the train but you will receive it tomorrow the fourteenth. Love and kisses and everything to my baby from your good boy

‘Frank.’

Defendant explained that he had told deceased he ‘was going to jump out the window’ and that was what he referred to in the letter as ‘something awful.’ Further, that she had accused him of not loving her because he was not jealous, and that he wanted her to think he was jealous.

On July 15, 1944, defendant arrived in Sacramento at about 10 a. m. He walked down I Street and met his wife driving the Signal depot bus on her usual route. A soldier was with her. She blew the horn at defendant, stopped the bus and introduced the soldier. At her suggestion they proceeded to the California Hotel bar. Decedent remained at the bar only a short while and then resumed her bus driving. Before she left, defendant informed her that he intended to lie down in the park and get some sleep. While at the bar defendant consumed a double shot of whiskey and another, either single or double shot, and several bottles of beer. His wife and the soldier were in uniform and drank beer. The soldier remained at the bar with defendant when the deceased left. At about 12:30 or 12:45 p. m. defendant went from the bar to the park, lay down and went to sleep. He was awakened some time thereafter by Violet and the two went to the bar in the Californian Hotel. The bartender testified that it was about 3 p. m. when they arrived; that both were obviously intoxicated and for that reason he refused to serve them although Violet asked for a drink. She left after about 10 or 15 minutes and several minutes later defendant left.

Shortly after 4 p. m. Violet entered the Blue Ribbon cafe and sat down upon a stool at the rear end of the bar. She ordered and was served a glass of whiskey. A few minutes later defendant came in a rear entrance and stood beside her. Then according to the witnesses for the prosecution the following events transpired: they proceeded to converse in low tones for a few minutes. The only portion of the conversation overhead by any witenss was a statement made by Violet, testified to by Mrs. Fitzgerald, sitting two stools away: ‘If you had been acting like a gentleman, I wouldn't have left you.’ Defendant reached over the bar to a sink drainboard and picked up a paring knife belonging to the cafe. He placed this knife on the bar. Mrs. Harden, daughter of Mrs. Fitzgerald, sitting three stools distant, testified that deceased made a grab for the knife as defendant placed it on the bar, saying, ‘Don't be silly, give me that knife.’ Then defendant covered it with his left arm. Immediately thereafter in turning to call to the bartender for a drink of beer, defendant moved his are slightly. Decedent slid her hand under his arm, grabbed the knife and threw it against the cafe wall. Defendant ran after the knife, picked it up and began chasing Violet. The latter, with defendant behind her, ran behind the bar, traversed the entire length thereof, ducked under an opening at the front and proceeded to encircle the bar, running toward the starting point and rear exit. Jack Fitzgerald, tending bar, tried to stop defendant as he came by, but defendant punched him in the eye, slashed at him with the knife, cutting his shirt, and proceeded on. In the encounter with Fitzgerald the latter testified that defendant said: ‘Get out of my way.’ ‘I want that dirty bitch,’ or ‘I will catch that dirty bitch.’ Defendant caught his wife after she had almost encircled the bar, straightened her into an upright position and inflicted the mortal wound. While cutting her throat defendant was hit on the head with a bottle by Fitzgerald who had given chase, also, with a stool by a patron. He swooned and went down but recovered and left, first walking, then running through residential yards, seeking to avoid capture by onlookers and the police who had been summoned. He was captured a short time thereafter, a few blocks from the cafe, and taken to the receiving hospital for treatment. There was evidence that he acted and appeared to be sober when cptured, while seeking to avoid capture and upon arrival at the hospital.

According to the testimony of defendant, as heretofore seen, deceased had the knife and he was attempting to prevent her from committing suicide. He claimed to have no recollection of any of the incidents of his flight, or in fact of anything that occurred between the time he was hit on the head and his arrival at the hospital.

It appears that defendant had no weapon upon his person when entering the Blue Ribbon cafe. He explained his entrance through a rear door, which led to an alley, as his usual mode of entering the Blue Ribbon cafe, stating that it was against the rules of the railroad company by which he was employed for an employee to frequent that type of place. This testimony does not appear to have been contradicted.

‘Murder is the unlawful killing of a human being, with malice aforethought.’ Pen.Code, s 187. Murder of the first degree is that perpetrated ‘by means of poison, or lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration or attempt to perpetrate arson, rape, robbery, burglary, or mayhem * * *.’ Pen.Code, s 189. In the instant case there is no element of poison, lying in wait, or the perpetration or attempt to perpetrate any of the crimes mentioned. Hence, in order to sustain the verdict the killing must have been willful, deliberate and premeditated, or by means of torture.

Respondent urges that the killing was committed by means of torture, relying upon evidence that defendant overtook Violet, grasped her around the head, turned her around ‘sawing’ at her throat with the knife, continued to cut and claw at her throat after he had been knocked down with the stool, and cut her windpipe, jugular vein, artery and neck muscles. Torture is the ‘Act or process of inflicting severe pain, esp. as a punishment, in order to extort confession, or in revenge.’ Webster's New International Dictionary, 2nd ed. Implicit in that definition is the requirement of an intent to cause pain and suffering in addition to death. That is, the killer is not satisfied with killing alone. He wishes to punish, execute vengeance on, or extort something from his victim, and in the course, or as the result of inflicting pain and suffering, the victim dies. That intent may be manifested by the nature of the acts and circumstances surrounding the homicide. Thus, in People v. Murphy, 1 Cal.2d 37, 32 P.2d 635, 636, torture was found to be present where the defendant administered to the victim, his wife, a severe and unprovoked beating. By use of ‘a belt, belt buckle, and his fists had bruised and bettered his victim's entire body and had broken her jaws. Other treatment of a sordid and shocking nature need not be described.’ As a result the victim died eleven days later. Similarly in People v. Cardoza, 57 Cal.App.2d 489, 134 P.2d 877, defendant beat the victim on the head and body with an axe handle. He sought no medical aid for her until she became unconscious some time after the beating. The victim died five hours after the beating. On previous occasions defendant had choked and bitten her. The case of People v. Duggan, 61 Cal.App.2d 379, 143 P.2d 88, has been disapporved. People v. Bender, Cal., 163 P.2d 8. It is not enough to establish torture that severe pain may have been inflicted on the victim in the course of the killing. There must be, in addition, an intent that such pain may be caused and further, for the purpose of punishment, revenge, persuasion, extortion, or the like. People v. Bender, supra; Townsend v. People, 107 Colo. 258, 111 P.2d 236. If that were not true practically every murder would be of the first degree inasmuch as in most instances some severe pain would precede the death. We do not believe the Ligislature used the word ‘torture’ in such a broad sense. In People v. Holt, 25 Cal.2d 59, 153 P.2d 21, the defendant shot the victim in the abdomen. He did not die until some time later and such a wound would unquestionably cause severe pain. We said at page 84 of 25 Cal.2d, at page 34 of 153 P.2d:

‘Obviously the homicide in this case was not perpetrated by means of poison, or lying in wait, or torture, * * *.’ (Emphasis added.)

In the instant case, although the method of slaying followed by defendant was gruesome and shocking, the victim must have died a very short time after her throat was cut. There is no indication that defendant was endeavoring to prolong the agony or inflict pain preliminary to death. The whole process of the actual homicide could not have extended over a period of more than a few minutes. According to the prosecution's evidence defendant acted rapidly and determinedly, pursuing to completion his deplorable act even after he was struck on the head, indicating that there was no thought of causing severe pain or torture. There does not appear to have been any purpose of vengeance, punishment, or extortion. Therefore, the conviction of first-degree murder cannot be sustained on the ground that it was perpetrated by means of torture. It must rest on wilfulness, deliberation, and premeditation if it can be sustained at all.

The prosecution especially relies upon the following reasoning to show wilfulness, deliberation and premeditation: That although defendant's evidence shows he was intoxicated, the prosecution's evidence is to the contrary; that there is evidence of previous quarrels between defendant and the victim, and on at least one occasion he slapped her; that they were separated and defendant was trying to get her to return to him but she demurred because of his conduct and treatment of her; that the motive for the homicide was her refusal to return to him as shown by their correspondence from April to July, the time of the slaying, in which it appears that he wanted her to return but she did not wish to unless he changed his conduct; the letter of July 7th heretofore quoted, in which he said that on their meeting a short time before she had been saved from something ‘awful’ when she extended her arms to him; the circumstances surrounding the killing, that is, the pursuit around the bar and the portion of their conversation immediately prior thereto in which she said: ‘If you had been acting like a gentleman, I wouldn't have left you,’ followed by her remark after he had obtained the knife from the sink drainboard back of the bar and she saw it under his arm, to the effect: ‘Don't be silly, give me that’; that these facts show that defendant was desperate over the refusal of his wife to returen and formed the design to kill her after he entered the cafe and she still refused to return to him, coupled with his subsequent conduct and remarks to Fitzgerald about wanting ‘that dirty bitch’ when Fitzgerald endeavored to stop defendant's pursuit of his wife; and that the manner of performing the act of slaying, the sawing and cutting even after defendant had been struck with the stool, indicates willful, deliberate premeditation.

After a review of the entire record in this case we cannot say as a matter of law that the evidence is insufficient to show a willful, deliberate and premeditated killing. However, the evidence on that issue presents a very close case. From the nature of the homicide act and the circumstances surrounding it there is clearly suficient upon which to find malice and hence a case of second-degree murder. But malice aforethought and premeditation are not the same. People v. Holt, supra; and People v. Bender, supra. In the instant case not all of the conversation between defendant and his wife prior to his pursuit of her was heard. Only the isolated statements above mentioned were overheard. The prosecution witnesses testified that defendant and his wife were conversing in low tones. The entire action transpired in a few minutes. The remarks of the defendant while pursuing his wife and those in the letter of July 7th, do not necessarily show premeditation. The manner of the homicide shows an abandoned heart malice but not necessarily premeditation. The statement in the letter does not compel the conclusion that there was a design on defendant's part to kill his wife, and further, even if there had been such a thought at that time it may have been erased when his wife proffered her arms in an embrace. Defendant testified that he meant he would harm himself, jump out of the window, thus showing the remark was not directed as his wife. When he entered the cafe he had no weapon of any kind. The slaying was accomplished by a knife picked up at the scene of the crime. His comment to Fitzgerald during the heat and excitement accompanying his pursuit of the victim did not necessarily portend a design to kill. Rather it could be viewed in the light of the circumstances as a thoughtless statement made under conditions inducing reckless remarks. The fact that the killing took place in a cafe in the presence of 25 or 30 people is persuasive evidence of a lack of premeditation and deliberation. The case There, the defendant had threatened to There, the defenant had threatened to shoot the victim's ‘heart out’ two hours prior to the slaying. We said at page 92 of 25 Cal.2d, at uage 39 of 153 P. 2d:

‘And we cannot survey all the evidence in this record without strong conviction that the witness was correct in his appraisal of the threat. It is certain that defendant did not literally carry out any part of his threat. He did not say that he intended to kill Riley. He said that he ‘was going to * * * shoot his * * * heart out and wipe it across his mouth.’ The very extravagance of that statement makes its value as proof of a deliberately conceived and premeditated intent questionable. The defendant did neither of those things, nor did he make any effort literally to carry out such extravagant statement. It has also been suggested that the statement of the defendant made to the witness Keever a few minutes before the shooting that ‘right now I am telling this brakeman off’ amounted to a declaration that he was even then in the course of carrying out an intentional homicide. On the contrary, such statement is apparently devoid of any value as proof of a deliberate, fixed design to take life. The expression ‘tell off’ is a colloquialism meaning ‘To reprimand, denounce’ (Webster's New International Dictionary, 1943 ed.) and is simply consistent with the defendant's rude and crabbed mood manifested throughout the day.'

We have heretofore indicated that the evidence was sufficient, however, to establish express malice and hence more than manslaughter has been established. There is also implied malice. That is present ‘when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.’ Pen.Code, s 188. Here the manner in which the act was committed is sufficient to show an abandoned and malignant heart.

Defendant complains of the following instructions given to the jury (the paragraphs are numbered for later reference):

(1) ‘All murder which is perpetrated by means of poision or lying in wait, torture, means of poison or lying in wait, torture, 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 murderes are of the second degree.

(2) ‘Malice aforethought either express or implied, is manifested by the doing of an unalwful and felonious act intentionally, deliberately and without legal cause or excuse.

(3) ‘It does not imply a pre-existing hatred or enmity toward the individual injured.

(4) ‘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 common 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:

(5) ‘Is the killing willful (that is to say, intentional) deliberate and premeditated? If it is, the case falls with(in) sic. 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 responsibility of saying that they shall be deemed and held to be murder of the first degree. These cases are of two classes:

(6) ‘First. Where the killing is perpetrated by means of poison, torture or lying in wait. Here the means used is held to be conclusive evidence of premeditation.

(7) ‘Second. Where the killing is done in the perpetration, or attempt to perpetrate, some one of the felonies enumerated 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 willful, deliberate, and premeditated? is answered by the statute itself, and the jury have no option but to find the prisoner guilty in the first degree. Hence, so far as these two classes are concerned all difficulty as to the question of degree is 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 euqal cruelty and aggravation with those enumerated, and which, owing to the different and countless forms which murder assumes, it is impossible to describe in the staute. In this class, the legislature leaves the jury to determine, from all the evidence 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 preconceived intent to kill. It is only in the latter class of cases that any difficulty is experienced in drawing the distinction 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 premeditation 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.

(8) ‘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 preceded by and the result of a concurrence of will, deliberation and premeditation 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.

(9) ‘A man may do a thing wilfully, deliberately and intentionally 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 nothing in the sections of the Penal Code which relate to this subject, which indicate that the Legislature meant to assign any particular period to this process of deliberation or premeditation, in order to bring the act within the first degree.

(10) ‘If the unlawful killing is done without the provocation and sudden passion which reduces the offense to manslaughter, 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 and abandoned heart, this is murder of the second degree, unless the evidence proves the existence in the mind of the slayer of the preconceived deliberate specific intent to take life at the time of the killing. If such specific intent exists at the time of such unlawful killing, the offense committed would of course be murder of the first degree.

(11) ‘You are instructed that Section 190 of the Penal Code of the State of California provides that a 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. Therefore, if you do so find the defendant guilty of murder in the first degree, you have the discretion and duty to determine the nature of his punishment.

(12) ‘You are instructed that manslaughter is the unlawful killing of a human being without malice. It is of two kinds:

(13) ‘1. Voluntary upon a sudden quarrel or heat of passion.

(14) ‘2. Involuntary in the commission of an unlawful act not amounting to a felony, or in the commission of a lawful act which might produce death in an unlawful manner, or without the (due) sic. care and circumspection.

(15) ‘Manslaughter is principally distinguishable from murder in this: that though the act which occasioned the death be unlawful or likely to be attended with bodily mischief, yet the malice, either expressed or implied, which is the essence of murder is presumed to be wanting.

(16) ‘The heat of passion mentioned in these instructions is the passion sufficient to disturb or obscure reason and render an ordinary man of average disposition liable to act rashly or without due deliberation and reflection, and from this passion rather than from judgment.

(17) ‘In criminal cases, the proof of the moving cause is permissible and oftentimes valuable, but it is never essential. Where the perpetration of a crime has been brought home to a defendant, the motive for its commission becomes unimportant. Evidence of motive is sometimes of assistance in removing doubt and completing proof which might otherwise be unsatisfactory, and that motive may be shown by positive evidence or gleaned from the facts and surroundings of the act; then proof of the motive becomes a circumstance, but nothing more than a circumstance, to be considered by the jury, and its absence is equally a circumstance in favor of the accused, to be given such weight as the jury deems proper.

(18) ‘Homicide committed in an unreasonable fit of passion is not reduced to manslaughter. In an abstract sence anger is never reasonable, but the law in consideration of human weakness, makes the offense manslaughter when it is committed under the influence of passion caused by an insult or provocation sufficient to excite an irresistible passion in a reasonable person of ordinary self-control.’

In regard to the tenth paragraph defendant asserts that it is the same instruction which was denounced as conspicuously bad in People v. Thomas, 25 Cal.2d 880, 156 P.2d 7. See, also, People v. Bender, supra. However, in those cases the words ‘preconceived deliberate’ next preceding and modifying ‘specific intent’ were not present as is true in the instant case. In the Thomas case we determine that the instruction was faulty because it treated a specific intent to kill as being sufficient for first-degree murder, whereas the specific intent must be preconceived in order to have premeditation. People v. Holt, supra; People v. Thomas, supra. In the instant case the instruction required the specific intent to be deliberate and preconceived. Defendant claims however, that the last sentence in the paragraph makes the instruction erroneous because it refers to ‘such specific intent,’ implying the thought that ‘such’ refers only to a specific intent to take life which is not enough for first-degree murder. Obviously, the word ‘such’ referred to the specific intent as described and modified in the foregoing sentence, that is, a deliberate and preconceived specific intent. ‘Such’ is defined as ‘of the sort or degree previously indicated or contextually implied.’ Webster's New International Dictionary, 2d ed. p. 2518.

Defendant contends that the instructions gave the jury the impression that the only heat of passion which would negative premeditation is that present in manslaughter. We have recently held that where the ‘instructions given cover quite fully the distinction between murder and manslaughter and advise the jury as to the meaning of the term ‘provocation’ and its materiality in relation to possibly reducing the offense from murder to manslaughter but the instructions are wholly silent in respect to the materiality of provocation as regards the degree of murder, if the homicide is found to be murder. Provocation of a kind, to a degree, and under circumstances insufficient to fully negative or raise a reasonable doubt as to the idea of both premeditation and malice (thereby reducing the offense to manslaughter) might nevertheless be adequate to negative or raise a reasonable doubt as to the idea of premeditation or deliberation, leaving the homicide as murder of the second degree; i. e., an unlawful killing perpetrated with malice aforethought but without premeditation and deliberation.' People v. Thomas, supra, 25 Cal.2d 903, 156 P.2d 19. (Emphasis added.) In the two sentences before the last in the seventh paragraph of the instructions the jury were correctly advised that the intent to take life must be deliberate and premeditated. However, in the last sentence the implication is that the only thing that will erase preexisting reflection is sudden heat of passion. Provocation, heat of passion, or other circumstances of a character insufficient to reduce the homicide from murder to manslaughter may, nevertheless, negative premeditation. People v. Thomas, supra. The tenth paragraph (heretofore discussed) refers to provocation and sudden passion in referring to manslaughter. That paragraph states that the offense is reduced to manslaughter when the passion or provocation is of that quality. It then proceeds to list the factors that would establish second degree murder, that is, the commission of an unlawful act, of a felony not listed in section 189 of the Penal Code, or the existence of an abandoned heart. Those clauses read together definitely eliminate the possibility of second-degree murder where the reason for the absence of premeditation would be provocation or passion of less magnitude than that required for manslaughter. In the fourteenth paragraph manslaughter is defined and sudden heat and passion are mentioned. Thereafter, it is said (paragraphs 16 and 18):

‘The heat of passion mentioned in these instructions is the passion sufficient to distrub or obscure reason and render an ordinary man of average disposition liable to act rashly or without due deliberation and reflection, and from this passion rather than from judgment.’

‘Homicide committed in an unreasonable fit of passion is not reduced to manslaughter. In an abstract sense anger is never reasonable, but the law in consideration of human weakness, makes the offense manslaughter when it is committed under the influence of passion caused by an insult or provocation sufficient to excite an irresistible passion in a reasonable person of ordinary self-control.’ This test is too strict for negativing premeditation. There may be circumstances of excitement, provocation, passion and the like which the jury might determine refutes any thought of a preconceived plan, but yet would not be sufficient to justify a reduction to manslaughter.

But more important are the eighth and ninth paragraphs of the instructions dealing with the definition and meaning of premeditation which are not distinguishable from those given in People v. Bender, supra. There we discussed the propriety of such instructions in detail and condemned them as failing to apprize the jury of the full significance of the difference between first and second degree murder. See, also, to the same effect People v. Thomas, supra.

In the instant case we have seen that there is grave doubt of the sufficiency of the evidence to establish willful, deliberate premeditation on defendant's part. Although there was evidence to the contrary, there is ample from which the jury could have concluded that defendant was intoxicated. There was evidence that defendant did not have a knife in his hand during the chase. It could have inferred that an altercation occurred between defendant and his wife during their discussion in the cafe over her consumption of whiskey. There are the circumstances of the chase and the excitement accompanying it. The showing of motive is weak. From the whole record we are convinced that the jury were not sufficiently instructed on the requirements necessary to establish first-degree murder and the distinction between it and second degree.

The judgment and order denying defendant's motion for a new trial are reversed and the cause is remanded for a new trial.

CARTER, Justice.

GIBSON, C. J., and TRAYNOR and SCHAUER, JJ., concurred.