I dissent. The facts which appear from the record do not, in my opinion, justify a judgment of murder in the first degree. I can find no evidence from which it may be inferred that there was premeditation. The defendant and deceased were strangers, and their contact consumed but a few minutes. The deceased, it is clear, was the aggressor; as he passed through the barroom door, he pushed the defendant. The shooting commenced almost immediately afterwards. The only direct testimony concerning the shooting was given by the woman who called herself the wife of the deceased, and, as the majority opinion points out, "her account of the affair was conflicting, incomplete and exceedingly indefinite". It was, moreover, decidedly different from that given previously at the coroner's inquest. The "gas station" in front of which the deceased was killed was a combination of a bootleg place and house of prostitution, and all of the characters involved in this case, either as witnesses or principals, were frequenters of the place. *Page 316
Under these circumstances, I think it probable that the jury permitted the criminal record of the defendant to warp its judgment, and that the proper verdict, and the only one justified by the evidence, would have been murder in the second degree. The absence of premeditation seems to me so obvious that a judgment of murder in the first degree is unwarranted.
I am of the opinion that the judgment should be modified, under our statutory power (Pen. Code, sec. 1181, subd. 6; People v.Kelley, 208 Cal. 387 [281 P. 609]), to murder in the second degree, and that the defendant should be sentenced therefor as prescribed by law.
Tyler, J., pro tem., concurred.