People v. Romo

California Court of Appeal Dec 17, 1937 No. Crim. 354Published

Before: Barnard

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Holding. The trial court committed reversible error by instructing the jury that intoxication is no defense to a crime without explaining that intoxication may be considered to determine if the defendant possessed the requisite intent or capacity to consent.

Issues

Whether the trial court erred in its instructions regarding the legal effect of voluntary intoxication on criminal intent and consent.
Whether the trial court erred by giving a specific instruction disparaging the credibility of the defendant's testimony.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“In effect the jury was instructed that the matter of intoxication could have no bearing in this case and the appellant was thus prevented from having his defense, lack of knowledge and consent, considered by the jury.”

“The appellant was entitled to have the issue of the effect of his intoxication fairly presented to the jury and, in our opinion, this was not done.”

[120]

BARNARD, P. J.

The defendant was charged, jointly with one Jim Cay, with a violation of section 288a of the Penal Code. Cay pleaded guilty and the defendant was convicted by the verdict of a jury. He appeals from the judgment on the grounds that the court erred in giving and refusing certain instructions, coupled with the claim that the evidence is sufficient to raise

reasonable doubt as to whether he consented to or participated in the act charged.

The appellant, who had lived all of his life in Riverside County, had been arrested for intoxication on many occasions but had never been arrested for any other offense. At 7:30 P. M. on July 19, 1937, he was arrested for intoxication and placed in the city jail in a tank which had several cells opening from it, and in which one other prisoner was confined. At 8 P. M. Jim Cay was arrested and placed in this tank. About 8:30 P. M. a trusty in the jail went down to take a bath. After he had completed his bath he heard Cay saying to Romo “Come on, just give me a chance,” which was repeated several times. This was followed by a “rumpus” and Romo stumbled or fell, and the trusty saw him getting up from the floor. The trusty went back upstairs where he heard Cay repeating “just give me a chance” about three times, and went back down to see what was wrong. At this time he observed the act being committed by Cay upon the person' of Romo. The trusty called two officers, who also observed the act being committed. The third person who was in the tank testified that he heard Cay telling Romo to “give it to him or something like that” continually for several minutes and heard Romo say “Leave me alone” several times, and heard a scuffle like someone had dropped to the floor.

The appellant’s defense was based entirely upon the contention that because of his intoxication he did not know what occurred on this occasion and that if any violation of the act in question occurred, it was without his consent and without any intent on his part to commit the same. His testimony supports this contention, as does part of the other evidence. While the officers admitted that the appellant was intoxicated when he was placed in jail one of them testified that he was “not as drunk” at the time in question as when he was put in jail and the other testified that at the later time

People v. Romo

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BARNARD, P. J.

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