*1 might imposed. expressed by some of As the alienists who, prior entry plea by defendant, to the and the tak- ing of evidence relative the crimes, had made regard defendant, an examination mental status he was committed, sane both the time crimes when the were arraigned eyes and when plea. law, In the in no was either of sense the homicides either excusable or justifiable. manifestly prejudicial It appears that error was committed proceed- the trial court in the course ings against defendant. judgment is affirmed. October 30, In No. 4235. Bank.
[Crim. 1939.] THE PEOPLE, Respondent, Ap- SMITH, v. LLOYD W.
pellant. *2 Gaffney Appellant. James F. French, Attorney-General, Warren,
Earl and F. Walter Respondent. Deputy Attorney-General, for EDMONDS, The proceedings judg J. which resulted in a penalty upon imposing ment the death conviction of the presented crime for review of murder the first are Code, provides under of the Penal for an section appeal automatic in such cases. pleas guilty in- by
After not and not reason sanity, by sitting was the a the defendant tried with jury, guilty in a verdict which pro- and found included no punishment concerning imposed the A vision therefor. the issue followed and in a trial resulted jury finding by the same that at verdict the time of the sane. After a motion the defendant for a new homicide denied, judgment imposed. made and had been trial Russi, homicide, wife, the victim Grover Johnson, William children, two Mrs. Russi’s their near on a ranch Sacramento. brother, lived About seven Mr. Russi took the defendant before, from an old years given that time had him board, lodg- and since home men’s farm. money chores on the ing doing sums and small by prosecution, According offered dispute a trivial matter over crime committed after angry became the breakfast table. The defendant jumped up from his but Mr. Bussi “sat him back seat out Within a few minutes the defendant went chair”. Shortly bring range. some firewood for kitchen school, the farm her thereafter Mrs. Bussi left to take son to Mr. Johnson started for another ranch. bedroom, Joyce Bussi, daughter, was in Soon who her and ran the kitchen. She heard blows testified that beating father, prone defendant her who was at that time floor, pieces attempted with two of firewood. When on she help Smith, father struck tc her she was several times muttered, gun, get you who “You son of will too.” Her Johnson, the sound of blows screams and were heard Mr. immediately v:ho ran into the house and disarmed defend- deep ant. Mr. Bussi died result of as a two wounds on the back of his head. has been on defendant, brief filed behalf by him
the contentions advanced upon the trial *3 support affidavits relied on in of his motion for a new trial passed on. will be considered and charge defense against
As a him, the defend ant that drinking testified he had been and his in because of toxication he did not requisite have the intent to commit the crime of murder in degree. the first ap it Although pears may in condition, that he have been it a state was brought voluntarily about, and, therefore was no excuse for However, the crime. the evidence concerning the defend properly presented ant’s intoxication was jury determining its consideration in whether he had the intent charged against act (See. to commit the him. Code.) Pen. jurors That the believed that he was not so intoxicated as to prevent specific having him from a intent to kill his em implicit ployer, verdict, is they returned after had as to governing been instructed the law his conduct under such circumstances. trial,
At time of his the defendant testified he that little recollection of events which occurred when Mr. However, Bussi killed. was he remembered that Mr. Bussi him during struck on face breakfast. Bussi, Mrs. her
544 oc thing any such that brother, each denied her and son curred, true, there is statement defendant’s but even if the passion in the heat killing done showing that is no left that he contrary, he testified following the On blow. him Russi attacked Mr. minutes after to five kitchen two with returned later when he or fifteen minutes it was ten justified jury was circumstances, the Under the wood. degree. in the first guilty of murder finding the defendant 456].) Pac. Golsh, App. 609 v. Cal. (People [219 might find the defendant jury was instructed degree, or the second murder in the first or guilty of crimes were the different manslaughter or not fairly fully all stated instructions defined. Other information issues raised applicable to the the law pleas. defendant’s and the he hearing testified that the defendant
At the wages in pay him more the refusal deceased resented money. clothing spending board, lodging, addition to any opinion of a basis inadequate as This opinion appellant lay insanity. expert or legal expressed. was insane was ap experts appointed the court examined
Each of two Margaret Smythe testified, Dr. pellant prior to the trial. ’’ On cross-examination the most favor he was sane. 41think appellant’s made in which she behalf was admission able “think the did not man would ever do she effect that drinking. unless he had been ...” This a deed she I think 44. . . but he is sane qualified the statement man”. “I expressed opinion, saying the same
Dr. Bert F. Howard On cross-examination he was asked thought he sane.” wrongs brooding over fancied would have led whether replied, mind. The doctor defendant’s confusion merely directing cause; I think it must “That would be very and alcohol emotional releases these been—he inhibitions, as the he and as soon inhibitions were released *4 over, as it were.” boiled any history made to show ancestral in- of effort was history only medical disclosed at the The
sanity. appellant syphilis had contracted hearing was that hardening of the arteries. This condition caused which appearance a cause for the as of the doctors considered appear does not age appellant, old premature syphilitic of the reason deterioration existed mental history. support trial, In of a motionfor a new thedefendant presented stating `s counsel his affidavit he had discovered important new and evidence which he had not known of be. testimony fore. This evidence was stated to be the of the two appointed by appeared alienists who were the court and as insanity, deputy witnesses at the trial the issue of and a According affidavit, physicians sheriff. each of the testify would that because of the defendant's intoxication he premeditation. witness, did not act with The other it was said, testify immediately would after the homicide the defendant was in an intoxicated condition. except calling offered for not these No excuse was witnesses physicians give refused to that one of the a statement of findings However, appointed to the trial. prior the court physicians as alienists at the time the two defendant was arraigned deputy and the sheriff is the officer who arrested circumstances, considering him. Under
which, asserted, it was each give, would the motion properly denied. judgment is affirmed. J., Shenk, Curtis, J., Knight, J., pro tem., Spence, J., pro Waste, tem., J., C. concurred. reading
HOUSER, J., Dissenting. I dissent. From a careful reporter’s transcript of the proceedings herein, I am convinced that the record discloses prejudicial error. But that, from the conceded fact at the moment when the committed, homicide was defendant under the influence intoxicating liquor, it is doubtful that capable forming express an specific or intent crime, commit a appreciating or of the difference right “between wrong”. extent, the To some circumstances indicate a “sudden brainstorm”.
One of alienists testified as follows: physical “I made a examination with reference to his reflexes they any present see if showed signs syphilis; signs there no neurotic syphilis,—and, were I continued examination,—the medical condition showed no dementia type you expect to find following after *5 long I sign think duration, any and I of that. didn’t find story keen gave very he revealing, the me was showed mind, he and that telling I he I think believe was the truth n very certain time, much confused the there was that entirely,—I forgotten events of morning the he had which think, he don’t think I as exactly; he remembered the facts me re- story, anger, told under a his he in acted intense action, an anger, emotional of certain events reaction so preceded act, I as much anger played the perhaps think the part in forgetting alcohol; related as his as the but he considering of think, amount alcohol I he had taken. including age probably and with hardening the arteries syphilis that system, hardening, in his the and caused arterial susceptible he was more than he other- alcohol would definitely and been, wise have and confused re- that he emotionally instinctively entering acted and into almost fight. considering this I far was, think it as this act I am as is concerned, unpremeditated fight. it was an ... very inhibitions, emotional alcohol releases over, as soon as the inhibitions he boiled as were released it were. I thought ... A. am inclined to think rather he right. distinguish he doing Q. he between But could right wrong? what was I A. think he had what was ’’ power analysis, but his emotions overcame his inhibitions. connection, And that other alienist that: testified “ ... I think man don’t ever do a deed would he drinking; venom, unless had been I think there was no very if great,—probably he it wasn’t at that time didn’t he times,—he he control himself did as at other said got jaw if hadn’t that he crack wouldn’t happened. see, So far as I I could didn’t feel he would anybody I blood, just kill in cold think up he was worked pitch got excited, just he too he beyond went ’’ himself, I think he sane man. is a There was direct contrary. evidence Further- more, it appears that on trial of the issue of “not insanity”, jury reason after the had been in conference approximately hour, one-half it returned into whereupon colloquy following occurred: understand,
“The Court: I Mr. Foreman, is there some- you thing up to take wish with the court? Godfrey Juror Yes, your Honor, can’t seem Simon: we to come any agree- pre- evidence If had had the ment we whatever. there jurors like feel today, yesterday, sented they ask verdict, entirely different an have been My Court: should do. we further instructions what is is, question which Foreman, only you, Mr. answer to fact is the decide you are to you submitted to and which time at the insane was sane or as to whether the defendant alleged in the information. the commission the act jurors foiuid *6 understand, I haven’t Juror Simon: willing upon vote it.” guilty” of “not that, had the issue
It thus becomes clear of “not contemporaneously with issue been tried by formerly stat- (as permitted by insanity” reason of ute), returned that a verdict would have been “entirely “guilty of first from a verdict of been different” could have degree words, murder”. In other verdict degree greater murder”, recom- than “first been no might have imprisonment. But the verdict mendation of life “manslaughter”. degree murder”, even been “second or provisions 6 Although of subdivision with reference empower Code, purport 1181 section Penal of the decreasing modify judgment this court to of conviction deny degree crime, legislature possesses contrary, power, but, juris insist that all powers this court must diction and be conferred thereon (People (2d) provision French, v. 12 constitutional Cal. dissenting opinion, p. 780 (2d) 1014]), Pac. [87 my herein, nevertheless, conclusion based the inherent power implied is that offense should (People that of second murder. reduced to v. ; People 387 Pac. Kelley, Howard, 208 Cal. v. 211 609] [281 1385].) 333, A. L. R. Pac. Cal. [295