Opinion
For Opinion on Hearing, see 36 Cal.Rptr. 323, 388 P.2d 355.
Earl Klein, Beverly Hills, for appellats.
Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Gilbert F. Nelson, Deputy Atty. Gen., for respondents.
SHINN, Presiding Justice.
Claude Leonard Jeter, Charles Joshua, James T. Evans and Mack Burton were charged in Counts I and II with armed robbery, in violation of section 211 of the Penal Code, and the murder of Zethery K. Marshall, in violation of section 187 of the Penal Code. In addition, two other offenses of robbery were charged against Jeter and Joshua in Counts III and IV. Pursuant to section 1099 of the Penal Code the cause against Evans was dismissed and he became a witness for the People. The jury was unable to reach a verdict and the case was retried, the defendants being represented by counsel throughout the proceedings. Defendant Burton was acquitted on all counts. Jeter and Joshua were found not guilty as to Counts III and IV but guilty of murder in the first degree and robbery. Their motions for new trial and probation having been denied, defendants Jeter and Joshua were sentenced to the state prison. They appeal.
The issues were sharply drawn. The People's witnesses testified that Jeter and Joshua came into a room where several men were engaged in gambling and robbed them; Jeter exchanged shots with Marshall, the The sole question presented to this court on appeal is whether it was error for the trial court to refuse to give defendants' requested instructions on second degree murder and manslaughter. There is no claim that, other than those in question, the instructions given by the trial court were not full and complete on the issues in the case. While it is true that the court should instruct on every theory on which there is any evidence deserving of consideration (Stevenson v. United States, 162 U.S. 313, 16 S.Ct. 839, 40 L.Ed 980; People v. Burns, 88 Cal.App.2d 867, 200 P.2d 134), it is the law that the giving of an instruction which, though stating a correct abstract principle of law, has no application to the facts or issues raised by the evidence in the case is error, since it confuses and misleads the jury by injecting into the case matters that under the evidence are not involved. (People v. Roe, 189 Cal. 548, 209 P. 560; People v. Eggers, 30 Cal.2d 676, 185 P.2d 1; People v. Jackson, 42 Cal.2d 540, 268 P.2d 6; People v. Silver, 16 Cal.2d 714, 108 P.2d 4.) The evidence introduced by the prosecution disclosed the following facts. On November 24, 1960, a group of about nine men were gathered in an apartment used for the purpose of gambling. About five of the men were playing a card game. At about 3:30 p. m. appellants entered through the kitchen door. Jeter had an automatic pistol and Joshua carried a large knife. Jeter said: 'This is a strickup. Everybody lie on the floor.' The decedent, Marshall, who was one of the card players, lay down, but jumped up from the floor and took out a gun. A number of shots were heard, followed by a short scuffle between the decedent and Jeter. Jeter hit Marshall over the head with a gun. One of the card players, witness Thomas, took the gun away from Jeter and pointed it toward Joshua, who was coming at him with a knife. Jeter picked up the decedent's gun and the appellants ran out of the apartment into a waiting car. The decedent walked out of the apartment, collapsed in the street and died. The deputy county medical examiner testified that the cause of death was a gunshot wound through the heart.
Evans had driven Jeter, Joshua and Burton to the apartment. He testified that, previous to the date in question, on several occasions Joshua had suggested a holdup of the apartment in question, known to be a 'bookie joint.' It was arranged with defendant Burton, who could gain entry into the premises, that he should enter the apartment first, on the date of the incident, thereby giving access to Jeter and Joshua. On November 24, 1960, the four drove to the location of the apartment. Burton remarked 'Give me five minutes to go in and open the door.' Joshua and Jeter waited a few minutes and then followed Burton. Evans stated they were gone for several munites and then came running back to the car. Jeter was carrying a gun other than the one he carried into the apartment. He stated to Evans that he had taken it from the victim. Three witnesses, who were in the apartment, testified that both appellants took money from their wallets before the shooting occurred.
The law, of course, is well settled that a homicide committed in the perpetration of robbery or in an attempt to perpetrate robbery is murder in the first degree. (Pen.Code § 189.) In such cases the law conclusively presumes premeditation. (People v. Petro, 13 Cal.App.2d 245, 56 P.2d 984.) In view of the evidence that Marshall was murdered during the perpetration of the robbery, if the jury believed defendants committed the crime, the only People v. Perkins,
People v. Turville,The judgments and orders are affirmed.
FORD and FILES, JJ., concur.