People v. Miller

Defendant was convicted of first degree murder and the penalty was fixed at life imprisonment. A motion for a new trial was denied. He has appealed from the judgment and the order denying his motion for a new trial.

*824 On the night o£ December 2, 1960, defendant and Charley Harper, a friend, were visiting at a neighbor’s home. After spending some two or three hours there, during which time there was some drinking and gambling, defendant and Harper left. They walked down the street toward a liquor store. Harper testified that he noticed a girl at the corner of a building across the street from the store. Harper went into the store to buy some cigarettes and left defendant crossing the street. As Harper came out of the store, he saw defendant grab the girl and “push her behind the wall.” Harper stood in front of the store a few minutes, then walked down the street, “passed by” and “looked behind the wall” but “didn’t see [any] more”; so he continued a little further down the street, came back and looked and saw no one, and returned to the liquor store and stood there. In a few minutes defendant came out from behind the wall; no one was with him. As defendant started walking down…

The issues in this case are primarily—and as I view the record and the law, controllingly—factual. The errors found by the majority thus either are not errors at all in any present circumstance or, on acceptance of the traditional disparity of functions of the trial court on the one hand and the reviewing court on the other, are immaterial.

The majority hold that it was inconsistent and erroneous to instruct the jury that (a) “Murder is classified into two degrees, and if you should find the defendant guilty of murder, it will be your duty to determine and state in your verdict whether you find the murder to be of the first or second degree” and (b) (Form 302-B CAL JIG) “Although there are two degrees of murder, the evidence in this case is such that either the defendant is innocent of the charge of murder or he is guilty of murder in the first degree. ’ ’ I find neither inconsistency nor error in so instructing the jury.

*832 At a trial (by jury) on the issues joined by the plea of not guilty to a charge of murder (assuming the evidence is sufficient to go to the jury at all) the law requires that the jury determine the issue of degree as well as identity of offense. Unless the…