I dissent. There was, in my opinion, no evidence adduced at the trial to warrant a verdict of murder of the first degree. Bare proof of an unlawful killing does, it is true, establish primafacie a case of murder, but only murder in the second degree. It casts upon the defendant the burden of proving that the killing was justifiable or excusable, or attended by circumstances of mitigation which will reduce the offense to the grade of manslaughter; but it leaves with the people, if they demand a verdict of murder of the first degree, the burden of proving beyond a reasonable doubt some facts or circumstances from which it may be rationally inferred that there was on the part of the defendant a deliberate purpose to take the life of the deceased. This proposition has been established by more than one decision of this court. In People v. Knapp, 71 Cal. 6, [11 P. 795], it is said: "And unless the express malice is affirmatively proved, a defendant cannot be convicted of murder of the first degree, even though his commission of the homicide *Page 205 is proved, and there is no evidence that it is manslaughter, or that the killing was justifiable or excusable; but in such case, the verdict should be guilty of murder of the second degree." Other decisions giving the same construction to our statute, dividing murder into two degrees and defining their elements, might be cited, but a further citation is unnecessary, — the statute itself being very plain to that effect. What, then, is that express malice which (except where the killing is perpetrated in the commission or attempt to commit certain enumerated felonies) must be affirmatively proved in order to warrant a verdict of murder in the first degree? The statute defines it: "Malice is express where there is manifested a deliberate intention unlawfully to take away the life of a fellow-creature." (Pen. Code, sec. 188.)
In my opinion, there is absolutely no evidence in this record from which it can be rationally inferred that there was any deliberate intention on the part of the defendant to take the life of Confaglia. There was no motive of revenge, of robbery, or of any sort proved or suggested, but simply the bare fact that he stabbed him with the hunting-knife which he habitually carried. The evidence introduced by the prosecution showed that the two were friends prior to the killing, that they went to town together to buy provisions, and that Confaglia bought a quart and a half of whisky, which he and the defendant drank on their way back to the boat landing. It does not appear by any direct statement in the record that the defendant is an Indian, but indirectly it does. We know that, except by a violation of the law, Indians cannot obtain alcoholic beverages, and we know that the law which makes it a crime to sell whisky to an Indian is justified by the fact that intoxication renders them in a peculiar degree irresponsible and reckless. The evidence in this case shows that this defendant was drunk, but entirely friendly up to the time he and Confaglia reached the boat landing; that the contents of the boat were placed upon the high bank of the river, and then that a struggle ensued on the brink of the stream where the knife was found; that the fatal wound was inflicted there; that the defendant went away, leaving his hat, coat, and knife behind him. This is all that the evidence shows. It proves a killing with that *Page 206 malice only which is implied in the absence of evidence of provocation. Evidence of express malice is wholly wanting, and, if so, it is not murder in the first degree.