People v. Malone

RICHARDS, J.

This appeal is from a judgment of conviction of the defendant upon a charge of murder in the first degree, based upon the verdict of the jury finding him guilty of that offense without recommendation, and from an order denying the defendant a new trial.

The undisputed evidence in the case showed that the defendant and his victim were husband and wife and that they had been separated some time before the homicide, and that such separation had been caused, in part, at least, by the drinking habits of the defendant. After such separation the wife obtained employment in a drug-store, which

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also contained a soda fountain and luncheon counter, in the city of Los Angeles, where she was engaged in waiting upon customers on the morning of December 7, 1927, when the defendant entered the place in a state of intoxication and demanded that his wife should go with him somewhere, which she refused to do, and, in connection with her refusal, reproached him with having been drinking; whereupon the defendant went out and shortly thereafter returned, armed with a 32 Colt’s automatic pistol, seeing which his wife undertook to flee, but was followed by the defendant into the kitchen, where she was fired upon and immediately slain by him,' following which he attempted unsuccessfully to kill himself. Upon being brought to trial the defendant entered a plea of not guilty, but did not enter a plea of not guilty by reason of insanity, nor did the defendant during the trial rely upon insanity as a defense, but seems to have solely depended upon the undisputed showing that he had been drinking and was drunk at the time of the homicide, in an effort to mitigate the imposition of the extreme penalty for his crime.

The first contention on which the defendant relies upon this appeal is that the trial court was in error in refusing to permit the introduction of evidence showing the length of time during which the defendant had been drunk prior to the commission of the crime. We discover no reversible error in the ruling of the court in that regard, for the twofold reason that under section 22 of the Penal Code drunkenness is no excuse for crime, and that, while under that section evidence is admissible showing the state of the accused as to intoxication at the time of the commission of the crime, in order to determine the purpose, motive, or intent with which it was committed, the question as to how long he had been in that state of intoxication is entirely immaterial, in the absence of a plea of insanity or any attempt on the part of the defendant during the trial to show that by reason of a long-continued state of intoxication he had reached such a besotted condition at the time of the commission of the homicide as to be practically insane. The evidence in question not being offered for any such purpose, but merely in attempted mitigation of the crime, was properly excluded by the trial court.