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The district attorney is empowered by Cal. Penal Code § 809 to charge the offense named in the order of commitment, or any offense shown by the evidence taken before the magistrate to have been committed. Under this section the district attorney can charge murder, if the evidence at the preliminary hearing shows such offense, although defendant has been held to answer for the offense of manslaughter. Also, Cal. Penal Code § 189 defines murder of the second degree as "all other kinds of murders" than those which are of the first degree. It is customary and, because of the wording of the statute, not improper in a homicide case where the crime could be found to be murder to tell the jury what types of murder are of the first degree in order that they can more readily comprehend what constitute the "other kinds of murders" which are of the second degree.
On the evening of July 16, 1945, defendant Henry Alexander McGee and one Linck went to the club rooms of a fraternal organization. They had drinks at the bar before they enter the card room and went out of the club minutes later. They immediately returned to the card room because Linck believed he had left his money on the card table. They left the card room afterwards. As they walked through the bar, which was dimly lighted, toward the street exit deceased Arthur Rypdahl came from the card room. He came toward defendant and when he was about 6 or 8 feet away, the deceased went towards defendant and pulled his hand around from back of him. At this point, just as Linck had started to open the door, defendant shot deceased in the abdomen. As a result of hemorrhage from the bullet wound deceased died the next day. Defendant was convicted of manslaughter after a jury trial in the superior court. Defendant appealed from the judgment of conviction, the order denying his motion for a new trial, and the order denying his motion in arrest of judgment. Defendant contended that the trial court erred in denying his motion to set aside the charge of murder and in instructing the jury concerning homicide offenses.
Was the defendant’s conviction proper?
The court affirmed the conviction. The court found that there was sufficient evidence to support the charges against him for both manslaughter and murder of the second degree. The court held that the trial court did not err to defendant's prejudice in excluding evidence regarding the alleged negligent surgical treatment of the decedent because the evidence was not sufficient to show a supervening cause of death that would relieve defendant from criminal responsibility for the death. The court likewise held that the trial court did not commit any errors to defendant's prejudice in instructing the jury. Moreover, the court found that the charge defining second degree murder under Cal. Penal Code § 189 was not in error by distinguishing the types of murder that were of the first degree. The instructions as to justifiable homicide were phrased from the prosecution's point of view, but it was not reasonable to conclude that the jury, if otherwise instructed, would have found the killing of the decedent to be justifiable.