People v. Coyne

[414]

GOODELL, J.

By an information the appellant was accused of murder, in that on December 19, 1947, in Santa Clara county he did “willfully, unlawfully, feloniously, and with malice aforethought, kill and murder Raymond Coyne. ’ ’ Incidentally, he was charged with carrying a deadly weapon, a .25 caliber Colt automatic pistol, without a license. He pleaded not guilty.

He was tried by jury and a verdict of guilty of murder of the first degree was returned, fixing the punishment as confinement in the state prison for life. Incidentally, the jury found that appellant was armed with a deadly weapon at the time of the murder. A motion for new trial was denied and this appeal was taken from the judgment and from the order denying a new trial.

There were several eyewitnesses to the homicide, which occurred in an inn near Cupertino on the evening of December 19,1947.

The principal question presented for decision is whether there was prejudicial error in an instruction relating to intoxication.

Raymond Coyne was a brother of appellant, the decedent having been aged 27, and appellant 39, at the time. The brothers had not seen each other for four or five years until the day in question but they were apparently on good

terms;

at any rate no ill-feeling had existed as far as the record shows.

On the afternoon of December 19, decedent called at appellant’s home, while appellant was at work. On arriving from work appellant had dinner and with it drank considerable port wine. After dinner decedent returned to appellant’s home and brought his wife with him. He had with him a “fifth” of whiskey most of which the two brothers drank at the house. Their mother was visiting in Santa Clara County and the brothers decided to call on her. On leaving his home appellant put into his pocket a .25 caliber Colt automatic so that, according to his testimony, it would not be available to a 14-year-old boy who lived at the house. On their way to visit their mother they stopped at a bar where each of them had two drinks.

According to the testimony the brothers were on friendly terms at that time and place, and appellant appeared to be sober. Prom there the two went to another bar, where they were joined by decedent’s wife and another woman, and the brothers had two or three more drinks. A witness who arrived about 11 p. m. testified that she observed decedent arguing