What is the test for a charge of murder in the first degree when a defendant sets fire to his wife's house with a match?

[211 Cal.App.2d 198] Furthermore, the prosecution based its claim of murder in the first degree primarily upon the theory that the facts showed murder by torture. Murder which is perpetrated by means of torture is murder in the first degree. (Pen.Code, 189.) In People v. Martinez, supra, 38 Cal.2d 556, 561, 241 P.2d 224, 227, the defendant's wife died from burns after her husband threw gasoline on her and lit a match. The court said:

'Murder is so perpetrated when 'the assailant's intent was to cause cruel suffering on the part of the object of the attack, either for the purpose of revenge, extortion, persuasion, or to satisfy some other untoward propensity.' People v. Tubby, 34 Cal.2d 72, 77, 207 P.2d 51, 54; People v. Bender, 27 Cal.2d 164, 177, 163 P.2d 8. In the present case defendant had previously stated that he intended to 'do something bad' to his wife. The jury could reasonably conclude that when defendant set about to burn his wife with gasoline, his intention was to inflict cruel suffering as punishment or revenge on his victim.'