21 Cal. 544 | Cal. | 1863
Field, C. J. and Norton, J. concurring.
This is an appeal from a conviction upon an indictment for murder. On the trial of the case the defendant offered to show that when the homicide was committed he was so drunk as to be incapable of distinguishing between right and wrong. The Court excluded the evidence, holding that drunkenness, whatever its effect may have been upon the mental condition of the defendant, was no excuse for the commission of the offense. The exclusion of this evidence is assigned as error, and it is contended that under our statute creating two degrees of the offense the evidence was admissible, as indicative of the degree in which the defendant was guilty.
The statute provides that “ all murder which shall be perpetrated by means of poison, or lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, etc., shall be deemed murder of the first degree; and all other kinds of murder shall be deemed murder of the second degree; and the jury before whom any person indicted for murder shall be tried shall, if they find such person guilty thereof, designate by their verdict whether it be murder of the first or second degree.” In this case, the means employed in the killing were not such as to give character to the offense, and whether it was murder of the first or second degree depends upon the presence or absence of deliberation and premeditation in the commission of the act. If it was deliberate and premeditated, it was murder of the first degree; otherwise, it was murder of the second degree; and in determining the degree any evidence tending to show the mental status of the defendant was a proper subject for the consideration of the jury. The fact that the defendant was'drunk does not render the act less" criminal, and -in that sense it is not available as an excuse, but
In Pirkle v. The State (9 Humph. 663) the same question arose under a statute of Tennessee similar to ours, and the Court, after reciting the statute, said: “ It will frequently happen, when the killing is of such a character as the common law designates as murder, and it has not been perpetrated by means of poison, or by lying in wait, that it will be a vexed question whether the killing has been the result of sudden passion, produced by a cause inadequate to mitigate it to manslaughter, but still sufficient to mitigate it to murder in the second degree, if' it be really the true cause of the excitement, or whether it has been the result of deliberation
We are of opinion that the Court erred in excluding the evidence offered; and the judgment is reversed, and the cause remanded for a new trial.