People v. Caetano

GIBSON, C. J.

A jury found defendant guilty of murder of the first degree without recommendation, and later upon a trial of his plea that he was not guilty by reason of insanity found him to be sane. This is an automatic appeal from the judgment imposing the death penalty.

The homicide was the outgrowth of domestic difficulties that caused the parties to separate three times during their eleven years of married life. When they last separated, Mrs. Gaetano withdrew their meager savings from the bank and a few days later, on March 8, 1946, she filed a suit for divorce demanding all of the community property. Defendant brooded over his marital troubles and was particularly upset by what he considered the unfair claims made by his wife to the little property they had accumulated. On Wednesday, April 24, 1946, defendant borrowed a 22 rifle from a friend, representing that he was going hunting. The next afternoon he walked into the grocery store where his wife worked as a clerk and raising the rifle ordered the persons present to stand aside. He said to his wife, “All right, you son of a bitch, you thought you was going to get everything, and you are not going to get a goddamn thing, and neither am I. I am going to shoot you.” She answered, “Go ahead, see if I care.” Defendant shot her through the heart and she died almost instantly. He then shot himself twice and a few minutes later was taken into custody and placed in a hospital. Two days later, defendant told the district attorney that when he borrowed the gun he had made up his mind to kill his wife and himself, and that he had the same intention when he went to bed on Wednesday night and when he got up the next morning. He said that when he “got off work” Thursday afternoon, he

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decided that he was going to “get it over with” and that he went to the store with the intention of shooting his wife.

There can be no question that the evidence was sufficient to support the verdict on the general issue of guilt, but it is contended that the judgment should be reversed because of errors committed during the trial.

First, it is claimed that the court erred in giving an instruction which improperly assumed the commission of a homicide. In defining first degree murder, the court said in part: “You are instructed that the homicide in this case can be murder of the first degree, only if it is proven to have been deliberate and premeditated; and it is therefore necessary for you to know what is meant by the terms ‘deliberate’ and ‘premeditated.’ ” Homicide is the killing of a human being by a human being and may be excusable, justifiable or felonious. It was established without dispute that defendant killed his wife, and he was, therefore, in no way prejudiced by the assumption in the instruction that a homicide had been committed.