People v. Williams

majority reverse these con-The victions of second degree murder because of misdirection of the jury with respect to certain of the trial court’s instructions dealing with a “killing done in the perpetration . . . of . . . [an] assault with a deadly weapon, or in the violation of Section 182 of the Penal Code, conspiracy” (ante, p. 457) which classified such offenses as second degree murder instead of manslaughter.

The overwhelming weight of the evidence shows that defendants were extremely fortunate not to have been found guilty of murder in the first degree—and I respectfully submit that to reverse their convictions by the jury of the lesser offense of second degree murder is a miscarriage of justice.

The crime charged was not of a killing in the perpetration of an assault with a deadly weapon or of conspiracy. It was that defendants murdered George Mack.

The court instructed on conspiracy, as it did on a killing as a result of a robbery, or of an assault with a deadly weapon, only because during the trial evidence was adduced from which the jury could have concluded that the killing was in perpetration of any one of such offenses. The court instructed upon other possibilities…

A jury found defendants guilty of second degree murder in connection with the stabbing of George Mack. They appeal from the judgment of conviction.

George Mack died as a result of a knife wound shortly after an affray with defendants on the morning of May 26, 1963. Defendants, residents of Oakland, drove to San Francisco on Saturday, May 25. They visited various parts of the city, ending up at Third and Tehama Streets late on Sunday morning. There they saw Mack whom they knew as a supplier of methedrine. Apparently Mack owed Hendrix some money; defendants attempted either to obtain methedrine from Mack in discharge of the debt or to convince Mack to repay the money that he owed Hendrix. The discussion relating to these matters degenerated into an affray which resulted in Mack’s death.

The record does not spell out the exact sequence of events. In essence defendants contend that Mack pulled out a knife, that they used their knives only to defend themselves, and that in the struggle which ensued Mack was stabbed. No prosecution witness saw the beginning of the affray. After the stabbing defendants left the scene and returned to Oakland. The following day they turned themselves…