The defendant was charged with the murder of Victor A. Cooley. The jury returned a verdict of murder in the first degree, without recommendation. The court below denied motions for new trial and for reduction of sentence, and pronounced sentence and judgment imposing the death penalty. Defendant appeals from the judgment of conviction and from the orders denying the said motions.
At the commencement of the trial, it appearing that the case would be somewhat protracted, two alternate jurors were duly selected, as provided by law. These alternates took the necessary oaths, assumed their places in the box with the regular jurors, and heard all of the evidence introduced upon the trial. At the conclusion of the evidence, and during the oral argument, one of the regular jurors sought the trial judge in chambers prior to the convening of court, and there disclosed to him that she personally knew two of the witnesses who had testified on behalf of the defendant in the cause, and that on account of certain facts which she personally knew concerning these witnesses, and which she disclosed to the judge, she was prejudiced against each of said two witnesses and their testimony. The judge thereupon called the attorneys for the prosecution and for the defense and also the defendant into his chambers and fully disclosed the situation to them. There was considerable discussion, in which the defendant personally took some part, concerning the situation in which the cause was placed, it *Page 324 being generally agreed that the juror who had reported to the judge should be excused from passing on the case. Thereupon one of the defense counsel suggested a stipulation excusing the juror and selecting in her stead one of the alternates, stating "there is no real reason why she should sit in preference to either of the two alternates. . . . Why can't we stipulate . . . that the juror be excused because of her statement to the court, and that the clerk may draw one of the two alternates". A stipulation to this effect was entered into in open court by the respective counsel, and the regular juror was dismissed and one of the alternates, chosen by lot, took her place in the jury-box. The regularity of this proceeding by which the alternate was selected was also stipulated to. The closing arguments were then concluded, and the cause submitted to the jury, which, as already stated, returned a verdict finding defendant guilty of murder in the first degree, without recommendation.
It is now contended by the defendant that, upon discovering the state of mind of the regular juror, a mistrial should have been ordered, and that to substitute the alternate for the regular juror under such circumstances amounted to a reversible error, in that he was thereby deprived of a trial by jury as guaranteed by section 7 of article I of the Constitution. While the value and importance of the privilege thus guaranteed cannot be overemphasized, on the record now before us we cannot see how or wherein there was any invasion of the common-law right of a jury trial. [1] The first essential of a common-law jury in criminal causes is a jury of twelve citizens, no more nor less, drawn from the locality, duly examined and sworn to try the cause. No objection was offered to the panel in this case. The second requirement is that the jurors must be impartial. No claim is made that juror Shields, the alternate selected, was not in fact a fair and impartial person to act as a juror. While the record brought here does not contain the examination of the jurors onvoir dire, it does indicate that the same proceedings were had in the selection of the alternate jurors as in the case of the first twelve who took their places in the box. We may assume that the defendant was satisfied that the alternate jurors thus selected would give him the fair and impartial trial to which he was entitled, should *Page 325 either be called in lieu of one of the other jurors. The third essential is that the verdict shall be unanimous, and that was so in this case, for the record shows that the twelve jurors agreed and returned a unanimous verdict.
[2] While the circumstances of this case are not such as to bring it within the purview of section 1089 of the Penal Code providing for alternate jurors, we think the procedure by which the alternate juror was substituted in the place and stead of the regular juror was, at most, but an irregularity which in no way substantially affected the defendant's rights. In the execution of the means which the lawmakers provide to enforce the guaranties of the organic law, the end to be effected must be through the adoption of a reasonable and practical method to secure attainable ends. When this has been done, nothing more can be demanded, from the very nature of things. It is not claimed that the verdict would have been any different had the alternate juror not participated in the deliberations of the jury. He was subject to the same challenge and took the same oath as the other jurors. We should assume that in all respects he obeyed his oath and that he well and truly tried all the matters in issue and rendered a true and impartial verdict in the cause. Defendant's right was to a fair and impartial jury, not to a jury composed of any particular individuals. (People v. Durrant, 116 Cal. 179, 199 [48 P. 75].) The situation here presented is not one in which a waiver of the right to a jury trial in a felony case enters into the consideration.
No case has arisen in this state, or perhaps elsewhere, precisely like the case at bar in its facts. Earlier cases, in which disqualification of a juror has been raised after verdict in criminal causes, are reviewed in People v. Duncan, 8 Cal.App. 186 [96 P. 414]. In that case, one Bernard Sherry appeared at the trial and substituted himself as a juror in place of John H. Sherry, whose name was upon the jury list, and who had been regularly subpoenaed to attend court as a trial juror. Upon the impanelment of the jury, the name of the rightful juror was drawn, and in answer thereto the other Sherry took his place in the box and, after due examination as to his qualifications, was accepted and sworn as a juror and acted throughout the *Page 326 trial of the cause. The jury returned a verdict of guilty of murder in the second degree. On appeal, it was contended that Bernard Sherry never became a juror because he was not selected and returned as required, and that therefore the verdict was the verdict of but eleven jurors. The court swept aside the contention, saying that it begged the question. The judgment of conviction was affirmed, and the petition to have the cause heard in the Supreme Court was denied.
We find no merit in defendant's first contention.
Prior to his untimely death, the decedent was engaged in the automobile rental business in the city of Pasadena. In the early part of January, 1928, the defendant was employed by him, and by mutual agreement went to live with the decedent and his wife. The Cooleys became estranged, and separated in September, 1928, whereupon the defendant and decedent took an apartment together. They were apparently on good terms and quite friendly. At about 12:50 A.M. on the morning of April 17, 1929, the defendant telephoned to the Pasadena police station and stated to the officer responding to the call: "This is Jack Howard. There has been a murder committed in my apartment. I have called the ambulance. I wish you would send a couple of the boys over." Upon arriving at the apartment the officers found the decedent sitting on the edge of the bed in a semi-conscious condition. The room was in a state of disorder, personal belongings having been upset and scattered about, giving evidence of the perpetration of a robbery. The injured man was removed to the emergency hospital, and from there to the Pasadena hospital, where he was operated on to relieve paralysis resulting from a blow on the skull with a solid instrument. It was the doctor's opinion, given at the trial, that the blow had been struck while the decedent was lying down. The decedent never regained consciousness, and passed away three days later. Shortly after reporting the matter to the police, the defendant stated that he had no definite idea as to the identity of the perpetrator of the crime, but mentioned the name of a person who was supposed to have previously threatened the decedent's life. At that time the defendant also stated that he had driven the decedent home from the garage on the night of the homicide *Page 327 at about 9 P.M., and, as was his usual custom, returned to the garage and there busied himself about the automobiles until the last of the rented cars had been brought in, whereupon, at about 1 A.M. he again returned to the apartment and found the decedent in an unconscious or semi-conscious condition, which prompted him to notify the authorities. Substantially the same story was told by the defendant at the coroner's inquest held on April 23, 1929, and again repeated to the police on the same day. Three days later, however, defendant modified his story and told Detective H.M. Thomas that he had driven to the apartment alone on the night of the homicide at about 10:30 P.M. to secure a bottle of whisky; that the decedent was there and upbraided him for absenting himself from the garage; that the decedent grabbed him and a struggle ensued in which he struck the decedent on the head with his mechanic's hammer; that he thought he had killed the decedent, and thereupon disordered the room in order to give the appearance that the homicide had been committed in an attempt to burglarize the apartment; that he then went to the garage and performed his usual duties, returning to the apartment after 12 P.M., when he notified the police. Defendant also stated to the detective that the killing was not premeditated, and expressed his willingness to plead guilty to a charge of manslaughter. After the usual proof as to its voluntary character, the prosecution introduced in evidence, over defendant's objection, a written confession made and signed by the defendant on the same day as the oral statement just above outlined had been made, wherein the defendant admitted striking the decedent with a hammer while struggling with him.
The defendant took the stand in his own behalf and related many of the matters already narrated. He reiterated his original story to the effect that he had found the apartment disordered and the decedent injured when he returned after closing the garage. He did not deny making the confession, but testified that the story therein related was concocted by him, upon suggestion of the police, in order to clear the decedent's estranged wife, whom he claimed was innocent, and still leave himself open to no greater charge than that of manslaughter. Defendant admitted having *Page 328 called on the decedent's estranged wife on the night of the homicide. On cross-examination, defendant stated that prior to the homicide he had given her several Christmas and birthday gifts, but denied that he had ever loved the woman or proposed marriage to her. He also admitted saying to the district attorney subsequent to the confession: "You are trying to ring in an innocent person [meaning decedent's wife]. I done this without anybody's help," but insisted that he said this to divert suspicion from Mrs. Cooley, and to back up his confession. While on the stand, defendant conceded that the confession had not been procured by means of threats or violence, but stated it was the result of promises by the authorities to merely charge him with manslaughter. The evidence upon this issue was conflicting, and the question was one for the jury's determination. Defendant produced several witnesses who testified that his general reputation for peace and quiet was good. Much of defendant's evidence was controverted by the rebuttal evidence of the prosecution. Among other witnesses called by the People in rebuttal was the decedent's estranged wife, who testified that defendant had proposed marriage to her, but that she had told him, in substance, that she would never marry anyone as long as Mr. Cooley lived. This was proper rebuttal evidence, for defendant on cross-examination had testified otherwise.
The defendant contends that the evidence does not warrant a verdict of first degree murder because of the asserted absence of a showing of express malice. Murder is defined as the unlawful killing of a human being with malice aforethought. (Sec. 187, Pen. Code.) Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow-creature, and implied when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart. (Sec. 188, Pen. Code.) All murder which is perpetrated by means of poison, or lying in wait, torture, or by any other kind of wilful, deliberate, and premeditated killing, or which is committed in the perpetration or attempt to perpetrate arson, rape, robbery, burglary or mayhem, is murder in the first degree; and all other kinds of murders are of the *Page 329 second degree. (Sec. 189, Pen. Code.) [3] To be murder of the first degree, under our statute, the killing must be premeditated, except when done in the perpetration of certain felonies; that is to say, the unlawful killing must be accompanied with a deliberate and clear intent to take life. If the act be preceded by, and be the result of a concurrence of will, deliberation and intent, the crime of first degree murder is proved. (People v. Bellon, 180 Cal. 706 [182 P. 420].)[4] When the killing is proved to have been committed by the defendant, and nothing further is shown, the presumption of law is that it was malicious and an act of murder; but in such a case the verdict should be murder of the second degree, and not murder of the first degree. (People v. Knapp, 71 Cal. 1, 6 [11 P. 793]; People v. Ford, 85 Cal.App. 258, 263 [258 P. 1111].)
In the present case, the prosecution relied principally on the defendant's confession to prove his connection with the offense. If the confession be disregarded, the record is entirely destitute of evidence tending to establish the circumstances and conditions actually existing just prior to and at the time of the striking of the fatal blow. If, as urged by the People, the jury in weighing and considering the evidence might properly reject as untrue that portion of the confession wherein defendant charged the decedent with having been the aggressor in a quarrel which led up to the homicide, there remains no evidence from which it might reasonably be deduced that the killing was the result of a wilful, deliberate and premeditated intent to kill. We do not question the propriety of the jury's action in rejecting any portion of the defendant's evidence or confession which to it was unworthy of belief. However, if it be assumed that this was done in the present case, there is a dearth of evidence tending to show the conditions as they existed at the time of the homicide, and from which it might reasonably be held that the murder was, in fact, wilful, premeditated and intentional. In this regard, the state failed to satisfy the burden of proof. On the other hand, if it be assumed that the jury accepted defendant's confession in toto, the offense would still be that of second degree murder, for defendant did not satisfactorily establish such provocation as would excuse the homicide or reduce it to manslaughter. *Page 330 The commission of the homicide by the defendant being proved, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him, unless the proof on the part of the prosecution relieves him of this burden. (Sec. 1105, Pen. Code.)
[5] Section 1181 of the Penal Code, as amended in 1927 (Stats. 1927, p. 1037), provides, in part, that if the evidence in a criminal cause shows the defendant to be not guilty of the degree of the crime of which he was convicted, but guilty of a lesser degree thereof, or of a lesser crime included therein, the trial court or any court to which the cause may be appealed may modify the judgment accordingly without granting or ordering a new trial. This court had occasion to consider the amended section in the case of People v. Kelley, 208 Cal. 387, 391 [281 P. 609]. We are of the view that the record now before us establishes murder of the second degree. We entertain a doubt as to its showing murder of the first degree. Our attitude of mind seems to be shared by the prosecution. While contending that the evidence is amply sufficient to support the verdict, the People concede that it is "not as strong as that usually accompanying first degree murder cases". Under no theory, they state in their brief, can it be said that the evidence does not "support a judgment of second degree murder". What has been said under this assignment sufficiently disposes of the defendant's contentions touching asserted errors of the court below in charging the jury upon first degree murder, and in denying his motions for new trial and reduction of sentence. We have examined the remaining assignments of error, including those having to do with the trial court's rulings on the evidence, and find nothing approximating prejudicial error.
The judgment of the lower court of murder of the first degree is modified. The cause is remanded to the trial court with directions to enter a judgment against the defendant finding him guilty of murder of the second degree, and to thereupon pronounce judgment upon him as prescribed by law.
Preston, J., Langdon, J., Curtis, J., Shenk, J., and Seawell, J., concurred. *Page 331