What is the test for determining whether a murder committed in the perpetration or attempt to perpetrate rape is a murder of the first degree?
California, United States of America
The following excerpt is from People v. Gutierrez, 221 P.2d 22, 35 Cal.2d 721 (Cal. 1950):
Section 189 of the Penal Code provides that all murder which is committed in the perpetration or attempt to perpetrate rape is murder of the first degree. If the record affords substantial support for the conclusion that one of the enumerated felonies was perpetrated or attempted, and the killing was committed in such perpetration, or attempt, the judgment must be affirmed. People v. Lindley, supra, and cases there cited. After conviction all intendments are in favor of the judgment and a verdict will not be set aside unless the
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