People v. Price

LANGDON, J.

The defendant was found guilty of murder in the first degree, without recommendation, and the death penalty was imposed. He has appealed from the judgment, asserting that the trial court erred in refusing to modify the verdict and judgment and fix the degree of' the crime at second degree murder, as moved by appellant

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and authorized by subdivision 6 of section 1181 of the Penal Code (as amended by Stats. 1927, p. 1037), and in refusing to give certain instructions requested by appellant with reference to intoxication.

Both of appellant’s contentions are based upon his. position that he was intoxicated at the time the crime was committed and that he was incapable, therefore, of premeditation. We have examined the record in the case and find that it supports the verdict of murder in the first degree. It is true that the record shows defendant had been drinking intoxicating liquor just prior to the commission of the crime and that he was under its influence, to some extent at least, when he fired the shots at his victim; but this fact furnishes no legal excuse. (Sec. 22, Pen. Code.) The evidence shows that, for several years, the defendant had been living with Maurillia Adame. She had previously been married and was the mother of two children by this marriage. She was generally reputed to have been the wife of defendant, although they were not legally married. Defendant, according to some of the testimony, was engaged in the illegal sale of intoxicating liquor and, according to his own account, he had been confined in jail for a time shortly before the crime we are considering was committed, for drunkenness. After his release, Maurillia Adame left him and went to live in another apartment. Defendant watched her movements and associations, telephoned to her and attempted to persuade her to return to him. Upon her refusal, he secured a revolver from one of his associates by representing that he could sell it at a. good price. He then wrote a letter to the men with whom he was living in which he stated: “When you come home, you may find me in the can (meaning jail). ... I hope you will bring me something to smoke. . . . Come down and see me. I may want you to bring some clothes back. ... I have a watch. You come down. I will tell you where it is.” He then wrote to Maurillia Adame. “I ask you to come to me, but would not listen to me. It is too late now, I love you more than any one, so goodby.” The deceased was working in a laundry and defendant came up to her on the street as she was leaving for her luncheon. He had obtained some whisky that morning and had consumed some of it. At the time