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People v. Wiley10/4/1976
fact to find such intent. Both her own statement that she wanted to hit William on the hand that stole her money, and her response to Henry's question whether she wanted him to get her money back from William, when considered with the manner in which the beating to William was administered, permit an inference that the purpose of the beating was to cause pain.
Appellant's argument that actual awareness of pain by the victim is a necessary element of torture-murder finds no support in the reported cases that have interpreted and applied the torture-murder provision since it was added to the predecessor statute to section 189 in 1856. The history of section 189 and our construction of its language establish that this type of murder was categorized as first degree murder because the Legislature intended that the means by which the killing was accomplished be equated to the premeditation and deliberation which render other murders sufficiently reprehensible to constitute first degree murder. A murder by torture was and is considered among the most reprehensible types of murder because of the calculated nature of the acts causing death, not simply because greater culpability could be attached to murder in which great pain and suffering are caused to the
victim. (People v. Steger (1976) 16 Cal. 3d 539, 544-546 [128 Cal. Rptr. 161, 546 P.2d 665].)
When enacted in 1850, section 19 of the Act Concerning Crimes and Punishment (Stats. 1850, ch. 99, p. 231), the predecessor to section 189, did not divide murder into degrees, but defined murder as "the unlawful killing of a human being, with malice aforethought, either express or implied." Section 21 of the act defined malice and provided the sole penalty for murder, death. Possibly because juries were reluctant to convict defendants of murder when the penalty was so severe and the relative culpability of defendants quite disparate, the offense was divided into degrees by an 1856 amendment to the act. As amended, section 21 provided: "Malice shall be implied when no considerable provocation appears or when all the circumstances of the killing show an abandoned and malignant heart. All murder which shall be perpetrated by means of poison, or lying in wait, torture, or by another kind of wilful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery or burglary, shall be deemed murder of the first degree; and all other kinds of murder shall be deemed murder of the second degree; and the jury before whom any person indicted for murder shall be tried, shall, if they find such person guilty thereof, designate by their verdict, whether it be murder of the first or second degree; but if such person shall be convicted on confession in open court, the court shall proceed, by examination of witnesses, to determine the degree of the crime and give sentence accordingly. Every person convicted of murder of the first degree, shall suffer death, and every person convicted of murder of the second degree shall suffer imprisonment in the State Prison for a term not less than ten years and which may extend to life." (Stats. 1856, ch. 139, § 1, p. 219.)
We first had occasion to construe the amended definition of murder in People v. Bealoba (1861) 17 Cal. 389, 393-394. It was argued there that under the amended section 21 first degree murder encompassed only murder by acts such as poison, lying in wait or torture, "the latter words being mere examples of the class of murder intended to be embraced; and the clause, therefore, not including other murders than those characterized by the same or similar proofs of de
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