THE PEOPLE OF THE STATE OF CALIFORNIA v. PANCHO VALENCIA and GUADALUPE VALENCIA, 43 Cal. 552

By the Court, Rhodes, J.: The defendants were indicted for murder. The indictment contains two counts. The first charges Pancho Valencia as the principal, and Guadalupe Valencia as an accessory; and the second charges Guadalupe as the principal, and Pancho as an accessory. The demurrer to the indictment was overruled, and, we think, correctly. The point now urged is that the indictment does not conform to sections two hundred and thirty-eight and two hundred and thirty-nine of the Criminal Practice Act, because it charges each defendant with two offenses, and because the two counts are repugnant.

It is apparent that only one offense is charged, which is the murder of Hewitt. The principal and the accessory are alike guilty of the same offense; but the rules of pleading require that an accessory shall be charged as such, and not as a principal. Had only one of the defendants been indicted, if it were doubtful whether the evidence would show that he was the principal or an accessory, he should be charged in one count as the principal, and in another count as an accessory. There would be neither two offenses charged in the indictment, nor wopld the two counts be inconsistent. (People v.

Schwartz, 32 Cal. 164; People v. Trim, 39 Cal. 75; People v. Campbell, 40 Cal. 129.) The same rule would obtain where two or more are charged in the same indictment.

The Court in charging the jury, after having read from the statute the definition of murder in the first and murder in the second degree, malice, etc., proceeded as follows: “I charge you further, if you are satisfied from the evidence that on or about the 3d day of March, 1871, in the County of Solano, the defendant Pancho Valencia willfully and feloniously took the life of Joseph Hewitt by means of shooting, and that the defendant Guadalupe Valencia stood by, aided, abetted, or assisted in the killing, then it is your duty to find the defendants guilty of murder in the first degree.” It is not doubted that that part of the charge is erroneous, as it omits from the definition of murder in the first" degree the essential qualities of deliberation and premeditation; but it is contended by the prosecution that as the Court had correctly defined murder in the first degree, and as the jury would consider together all the parts or propositions of the charge, the error in the part above cited is cured by the correct definition which had already been given.

The two parts of the charge are contradictory, and the jury would not be able to say that the Court intended that the former rather than the latter should be received by them as the correct definition of murder in the first degree. There is no doubt that the jury would always give greater heed to a charge delivered in the language of the Judge, in which only the particular manner in which it is claimed by the prosecution that the murder was committed is mentioned, than to the statutory definition in which are enumerated several different kinds of murder, as constituting murder in the first degree.

We are not justified in saying that the error was productive of no injury to the defendants, because we may be satisfied that the jury ought to have found from the evidence, as they did, that the defendants are guilty of murder-in the first degree. The question as to the deliberation and premeditation of the defendants is one which is peculiarly the province of the jury to determine; and should we sustain the charge of the Court, because of the 'apparently satisfactory character of the evidence, that question would virtually be withdrawn from the jury. Judgment reversed, and cause remanded for a new trial.