THE PEOPLE, Respondent, v. EVAN CHARLES THOMAS, Appellant, 41 Cal. 2d 470

SHENK, J. The defendant was found guilty of murder in the first degree without recommendation. The victim was Nina Marie Bice. A motion for a new trial was denied and the extreme penalty was imposed. On this appeal, automatically taken under Penal Code,

section 1239(b), the sole contention of the defendant is that the court misdirected the jury by giving an improper instruction on “lying in wait,” hereinafter quoted in full. The defendant was charged by information in count I that on or about August 29, 1951, he wilfully, unlawfully, feloniously and with malice aforethought murdered Nina Marie Bice. In counts II, IV, VI, VIII, X and XII he was charged with the attempted murder of each of several persons he shot at but failed to kill. In counts III, V, VII, IX, XI, and XIII he was charged with assault with a deadly weapon on each of those same persons.

The defendant pleaded not guilty and not guilty by reason of insanity to each of the 13 counts. At the commencement of the trial the prosecution moved for a severance of count I from all the other counts. The defense agreed to the severance and the motion was granted. Thereupon the defendant withdrew his plea of not guilty by reason of insanity as to count I. Following the conviction on count I the other counts were ordered off calendar. The facts of this ease are not in dispute. In the evening of April 15, 1952, the defendant paid a social call on a neighborhood woman in Los Angeles County.

He left at approximately 10 p.m., and shortly thereafter a shot was fired through the front window of the woman’s home, injuring no one. Upon questioning by the sheriff’s deputies the following day, the defendant admitted he fired the shot. A stenographic statement was taken at this time. In the statement the defendant related the following additional shootings: On August 27, 1951, he shot at his first victim, a woman waiting at a corner telephone booth at about 10:30 in the morning. The bullet entered below the left shoulder blade. Following surgery she recovered from the wound.

On August 28, 1951, he shot through the front window of a home, injuring no one. On August 29, 1951, between 10 and 10:30 p.m. he shot and killed Mrs. Nina Marie Bice. She was sitting on a stool next to the counter of a small lunch stand located at 1021 Atlantic Boulevard in Los Angeles County.

The defendant stated that he noticed her as he drove by on his way to work; that he drove down an alley and stopped at a distance of about 200 feet from the lunch counter; that he took a .22 caliber rifle from under the back seat of his car; that he shot once at the woman, trying to knock a coffee cup out of her hands; that he saw her slump over the counter, and that he started his car and drove past the lunch counter where the victim had been laid out on the ground. The bullet entered the deceased ’s right ear killing her immediately.

On October 16, 1951, at 8 o’clock in the morning, the defendant shot at an 11-year-old schoolgirl, standing on a corner waiting for a bus. The bullet shattered a bone in the girl’s forearm. On November 23, 1951, at about 9:30 in the morning the defendant shot at a woman working in her yard with her son and daughter and three of their friends. The bullet entered her right thigh and was removed by surgery. On December 25, 1951, at about 10:30 in the evening the defendant shot through a window at a woman ironing in her home.

The bullet entered her abdominal cavity and lodged in a position where it was too hazardous to be removed. With the exception of the final shooting, the defendant stated that he was acquainted with none of the women at whom he shot or at whose homes he shot. He purchased the .22 caliber rifle, used in each instance, in July, 1951, and carried it under the rear seat of his automobile. In some cases he shot from the automobile, and in others from outside of it.

The only reason given for the shootings was that in some of the cases he experienced a sexual satisfaction while in the commission of the act or shortly thereafter. On April 17, 1952, a sworn statement was taken from the defendant in the office of the district attorney. The statement was substantially the same as that taken by the sheriff’s deputies the previous day and recited the same facts, although in greater detail than above related. Again the defendant gave no motive, other than the sexual satisfaction he experienced. At the trial the two statements made by the defendant were read into the record.

The victims, with the exception of the deceased, testified as to the shootings and other witnesses testified as to the shooting of the deceased. There was expert testimony to the effect that the defendant, a married man, led a frustrated sexual life at home and the shootings were an outlet for his sexual drive in his particular case.

Expert opinion as to the defendant’s mental ability varied from “subnormal” to “above average.” The only testimony given by the defendant was that he had been in an automobile accident in 1948 and was rendered unconscious for six hours, and that during the remainder of the year 1948 he suffered headaches. The court ruled that this did not open up to cross-examination the entire field of the defendant’s conduct. The defendant was not examined in court as to the commission of the acts charged against him.

The defendant contends that because there is no proof that he had intent to kill, a properly instructed jury would have returned a verdict of murder of the second degree.

Section 189 of the Penal Code reads as follows: “All murder which is perpetrated by means of poison, or lying in wait, torture, or by any other kind of wilful, deliberate, and premeditated killing, or which is committed in the perpetration or attempt to perpetrate arson, rape, robbery, burglary, mayhem, or any act punishable under

Section 288, is murder of the first degree; and all other kinds of murders are of the second degree. ’ ’ The

section purports to set forth the degree of a crime previously determined to be “murder.” “Murder is the unlawful killing of a human being, with malice aforethought.” (Pen.

Code, § 187.) The court correctly instructed the jury on murder by lying in wait as follows: “Murder which is perpetrated by lying in wait is declared by our law to be murder of the first degree, and if you should find that the defendant committed that crime, you will have no choice but to designate the offense as murder in the first degree.” The defendant brings into question the further instruction of the court defining “lying in wait”: “The words ‘lying in wait’ do not refer to the position of the body of the person who commits a killing.

There may be a ‘lying in wait’ within the meaning of the law where such person is sitting down, standing or to a degree moving about. The gist of ‘lying in wait’ is that the person places himself in a position where he is waiting and watching and concealed from the person killed with the intention of inflicting bodily injury upon such person or of killing such person. There is nothing in the law that requires that the ‘lying in wait’ exist for or consume any particular period of time before the firing of a shot or other act which caused the death.

It is only necessary that the act causing death be preceded by and the outgrowth of the ‘lying in wait.’ “Where the killing is by ‘lying in wait,’ and the act causing death was intentional, it is murder of the first degree, whether the killing was intentional or unintentional, as in such case it is not necessary that there exist in the mind of the perpetrator an intent to kill.” The defendant contends that the instruction was improper because it permitted the jury to convict of first degree murder where there was no evidence of a specific intent to kill.

But where a murder is shown to have been committed by ‘lying in wait’ a showing of intent is unnecessary to fix the degree. In People v. Bernard, 28 Cal.2d 207, it is stated at page 211 [169 P.2d 636] : “. . . the murderer who kills by torture or poison may intend only to inflict suffering, not death.

Evidence of the means used might support an inference that the killing was willful, deliberate, and premeditated, but where the jury has found that the killing was by poison, lying in wait, or torture it is not their [the jury’s] function to go farther and draw inferences as to the manner of the formation and carrying out of an intention to kill. In such a case the question which the statute (Pen.

Code, § 189) answers affirmatively is not ‘Is the killing willful, deliberate and premeditated ?'; it is, ‘ Is the killing murder of the first degree ? ’ Killings by the means or on the occasions under discussion are murders of the first degree because of the substantive statutory definition of the crime.” (See, also, People v. Tuthill, 31 Cal.2d 92, 99 [187 P.2d 16].) The defendant relies upon an excerpt from People v.

Howard (1930), 211 Cal. 322, 329 [295 P. 333, 71 A.L.R. 1385], where it is stated: “To be murder of the first degree, under our statute, the killing must be premeditated except when done in the perpetration of certain felonies; that is to say, the unlawful killing must be accompanied with a deliberate and clear intent to take life.” In that case the deceased died from a blow on the head received in the course of a struggle following an argument with the defendant. It was held that the evidence did not show that the murder was wilful and deliberate.

The question of murder by lying in wait was not in issue, and the statement of the court cannot fairly be construed to mean that where a murder by lying in wait is committed it cannot be murder of the first degree unless accompanied by proof of a specific intent to kill.

As above noted the court instructed the jury that “Where the killing is by ‘lying in wait,’ and the act causing death was intentional, it is murder of the first degree whether the killing was intentional or unintentional. ...” It is contended that this is not a complete statement of the law; that under such an instruction one could be convicted of murder of the first degree where by lying in wait he sought merely to play a prank upon the deceased but instead created circumstances which caused death, and that the instruction ignores the provisions of the Penal Code which presuppose that a “murder” as distinguished from a “killing” has been committed, in which event it is of the first degree if perpetrated by lying in wait.

It may be assumed that the instruction standing alone is not as exact as it might be. Still no prejudice to the defendant resulted therefrom. It was contained in a definition of the expression “lying in wait.” Therein the court correctly set forth the physical aspects of the act. It made it sufficiently clear that the act of lying in wait alone did not constitute the crime but that when murder had been established and was found to have been committed by lying in wait as that act was defined in the instruction the law fixes the degree of the crime.

Considering the instructions as a whole it is clear that when the court made reference to a “killing” it was reasonably understood by the members of the jury to be a killing which constituted murder. The court had fully and correctly instructed the jury on the distinction between first and second degree murder and on all aspects of the law applicable to the facts including intent and how it could be manifested and proved.

It had instructed that “you are not to single out any certain sentence, or any individual point or instruction, and ignore the others, but you are to consider all the instructions as a whole, and are to regard each in the light of all the others.” The defendant was convicted on undisputed evidence. He had a full and a fair trial. No reason has been advanced which would justify a reversal. The judgment and the order denying the motion for a new trial are affirmed. Gibson, C. J., Traynor, J., and Spence, J., concurred.