Majority
Defendant pleaded not guilty to a charge of murder. Trial by jury was waived (as authorized by Cal. Const., art. I, § 7) and the court (see Pen. Code, § 1167) found defendant guilty of second degree murder. Defendant appeals from the ensuing judgment. He urges that uncontradicted psychiatric testimony, accepted by the trial court, establishes that defendant did not intend to take human life
Defendant, a longshoreman, shot and killed his foreman, Joseph O’Leary, at about 2:30 a.m. on March 9, 1957. The record discloses the following events leading up to the homicide : At 5 p.m. on March 8 defendant reported to the dispatching hall. Between 6 and 7 o’clock he and a fellow worker ate and consumed a fifth of a gallon of sloe gin. Defendant worked until 11 p.m. Between 11 and 12 o’clock defendant and the fellow worker ate and consumed a pint of sloe gin. Shortly after 12 midnight O’Leary saw defendant standing on the deck of the ship drinking a glass of coffee. O’Leary told defendant to go to work. Defendant threw the glass to the deck, exchanged “a few words” with O’Leary, and went to work. Thereafter■ O’Leary told defendant that he was drunk and was not doing his work properly and directed defendant to go home. They argued, defendant spat in O’Leary’s face, and O’Leary knocked defendant down and kicked him. At the request of other workers 0 ’Leary walked away from defendant. Defendant threw a piece of dunnage and brandished a carton at O’Leary.
Paul Baker, a “walking boss,” took defendant to a hospital. Defendant was bleeding and bruised; his left eye was swollen shut and a deep cut under it required five or six stitches. Defendant was discharged at 1:45 a.m. The hospital records bear the notation, “Alcoholic Breath.” As Baker drove defendant back to the pier where they worked, defendant said “that he was going to go home and get a gun and kill this fellow.”
When he reached the pier defendant said that he wished to return to work but his superiors insisted that he go home. Defendant said, “I’ll go home and get my gun. I’ll come back and take care of him.” Defendant drove to his home, got a .25 caliber automatic pistol which contained two bullets, fired one shot in his living room, put the gun in his apron, and
O’Leary and Nelson, a union business agent, had followed defendant to his house and, when they saw defendant leave his house, had driven to a police station. Police officers went to the pier. They searched defendant but did not find his gun. Defendant told the officers that he “had a fight with Mr. O’Leary, and . . . that he couldn’t forget about the eye that he had obtained during the fight.” One of the officers described defendant as “angry,” “almost tearsome,” “emotional,” but not incoherent or boisterous.
O’Leary and Nelson then appeared. Defendant said, “My buddy. Hah, my buddy,” and produced the gun. O’Leary shouted, “Look out, he’s got the gun.” Defendant shot. The single bullet entered O’Leary’s abdomen, killing him; it also wounded Nelson’s arm.[1] The officers subdued defendant after a brief struggle. Defendant told the authorities, shortly after the homicide, that O’Leary was “looking at me, smiling, so I just let him have it.....Nelson was standing by; I had to take chance to hit him, because I had only one bullet.”
Defendant had a very good reputation for peace and quiet and did not usually drink to excess. He testified as follows: During the 15 years he had known 0 ’Leary prior to the night of the homicide they had been friends and had had no trouble. Defendant’s recollection of the events of that night was “kind of hazy.” He considered it unfair of O’Leary to order him to go home but to retain the fellow worker with whom defendant had been drinking. “The argument starts about he wants me to go home and I . . . tell him that I intend to wait until business agent comes in, so apparently he, he hit me and knocked me off, off the floor and when I jumped up, he got on and hit me again, and that’s—then I tried to defend myself. I, I didn’t hit him . . .; he was apparently too fast for me or stronger, bigger.” Defendant did not recall throwing a piece of dunnage or brandishing a carton or threatening to go home and get a gun. When he discharged the gun in his home, “I didn’t know it was on the safety or not, I was shaky, I didn’t know what I was doing. ’ ’ Defendant recalled little of his return to the pier, but did recall that the police searched him. Then he saw O’Leary “grinning, looking at
1 The trial court found defendant not guilty of a charge of assault with a deadly weapon with intent to murder Nelson.
Dr. Bernard L. Diamond, a psychiatrist who examined defendant, testified as follows:[2]
After described examinations and tests of defendant, the doctor concluded that defendant suffers from chronic paranoiac schizophrenia, a disintegration of mind and personality. For 20 years defendant has had trances during which he hears voices and experiences visions, particularly of devils in disguise committing abnormal sexual acts, sometimes upon defendant. Defendant recognizes that these experiences are “not real” but believes that they are forced upon him by the devil. Apparently defendant, prior to his examination by Dr. Diamond, had not disclosed these experiences to anyone.
A year before the shooting defendant (who was 56 years of age at the time of trial) became concerned about loss of sexual power. With this concern his sexual hallucinations occurred with increased frequency and his ability in his work became increasingly important to him as a proof of manhood.
On the night of the shooting, O’Leary’s statement that defendant was drunk and should leave his work was to defendant the psychological equivalent of the statement that “You’re not a man, you’re impotent, . . . you’re a sexual pervert.” Then, according to defendant’s statements to Dr. Diamond, O’Leary applied to defendant an epithet which indicated sexual perversion. At this point, according to Dr. Diamond’s opinion, defendant was confronted with “the imminent possibility of complete loss of his sanity. . . . [A]s an alternate to total disintegration . . ., it’s possible for . . . an individual of this kind, to develop an obsessive murderous rage, an unappeasable anger. . . . The strength of this obsession is proportioned not to the reality danger but to the danger of the insanity . . . [F] or this man to go insane, means to be permanently in the world of these visions and under the influence of the devil. . . . [A]n individual in this state of crisis will do anything to avoid the threatened insanity, and it’s this element which lends strength to his compulsive behavior so that he could think of nothing else but to get 0 ’Leary, so he went home and got the gun and shot him; and [as] is usually the case in this type of event, the shooting itself released the danger of [defendant’s complete mental disintegration]. ’ ’
2 lt should he noted that no question of legal insanity is here involved.
In the opinion of the doctor, defendant acted almost as an automaton; “even the fact that policemen were right at his elbow and there was no possibility of getting away with this, still it couldn’t stop the train of obsessive thoughts which resulted in the killing . . . [H]e did not have the mental state which is required for malice aforethought or premeditation or anything which implies intention, deliberation or premeditation.”
Dr. Diamond quoted section 188 of the Penal Code, which provides that the “malice aforethought” which is an essential element of murder “may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow-creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.” He then gave his opinion of the “medical essence” of “malice aforethought”; i.e., “whether an individual performs an act as a result of his own free will or intentionality, or . . . whether the action is directly attributable to some abnormal compulsion or force, or symptom or diseased process from within the individual.”[3]
The doctor further explained that in his opinion “actions, like the threat to kill, the going home to get the gun and so forth”—actions which “in an ordinary individual” would be evidence “that he intended to do what he did do, and that this was an act of free will and deliberation”—in defendant’s ease were, rather, “just as much symptoms of his mental illness as the visions and these trances that he goes into.”
In cross-examining Dr. Diamond, the prosecuting attorney quoted the following statements from an article by the doctor
3 The trial court correctly overruled the People’s objection that by this testimony the doctor gave ‘ a medical interpretation of a legal principle. ’ ’ The court did not permit the doctor to usurp the judicial function of interpreting legislative language; rather, it properly permitted him to explain what he meant by his opinion that defendant lacked malice aforethought. (See People v. Woods (1937), 19 Cal.App.2d 556 , 561-562 [ 65 P.2d 940 ]; People v. Martinez (1952), 38 Cal.2d 556 , 562-563 [ 241 P.2d 224 ].)
1 ‘ Freud, in 1904, brilliantly demonstrated by analysis of slips of the tongue, forgetting, and trains of association that what we call free will or voluntary choice is merely the conscious rationalization of a chain of unconsciously determined processes. Bach act of will, each choice presumedly made on a random basis, turns out to be as rigidly determined as any other physiological process of the human body. Yet all of us continue to live our lives, make our choices, exercise our free will, and obey or disobey the law as if we actually had something to say about what we are doing. ... It does no -good to proclaim to the jurist that scientific evidence proves that there is no such thing as free will. ...”
The prosecuting attorney then asked, “you feel there is no such thing as free will?” The doctor replied, “I believe in what the philosophers call the posit of free will. A posit is a working assumption. When I treat a patient, if I believed as
“ [T]he central issue [in a psychiatric evaluation of malice aforethought], that of the age-old philosophical abstraction of free will vs. determinism, is itself undetermined. Freud, in 1904, brilliantly demonstrated by analysis of slips of the tongue, forgetting, and trains of association that what we call free will or voluntary choice is merely the conscious rationalization of a chain of unconsciously determined processes. Each act of will, each choice presumedly made on a random basis, turns out to be as rigidly determined as any other physiological process of the human body. Yet all of us continue to live our lives, make our choices, exercise our free will, and obey or disobey the law as if we actually had something to say about what we are doing. Criminal law could not exist were it not for this posit that each normal person intends to do the act which he does do and that such intention is based upon the exercise of free will.
‘ ‘ Medical psychology has embarrassingly few answers to this one question which the criminal law is most interested in. It does no good to proclaim to the jurist that scientific evidence proves that there is no such thing as free will. There is a subjective phenomenon which the normal individual experiences as free will. Illusory or not, free will remains the basis of all criminal law simply because free will is the basis of all normal social behavior.
“In truth, today, we do not have a sufficient foundation of scientific knowledge about the ego functions of decision, choice, and determination of action to justify the formulation of any general principles which could be applied to the law. . . .
“The task then becomes to understand the motivations, intent, and actions of the individual who deviates from the common-sense posit of free will. This can be accomplished without specious generalizations which would attack the very structure of the law itself and would compel nonacceptance by the juridical mind. . . .” (Italics added.)
4 The trial court considered the entire article, not merely the portions which the prosecuting attorney read aloud. The doctor’s position can he better understood when the statements excerpted by the prosecuting attorney are read in their context, which is as follows:
The trial court stated at some length the matters which it considered in reaching its decision. It said, “up till the time that Dr. Diamond testified in this case, there was no explanation of why this crime was committed. . . . [The doctor is] the first person that has any reasonable explanation. Whether it’s correct or not, I don’t know ... [I]f I would follow Diamond’s testimony in toto, I should acquit this man. . . .
“I’m willing to go on the record, that in all probability his theories are correct . . . that he had no particular intent to commit this crime.
“I like to be advanced. But it seems to me that my hands are tied with the legal jurisprudence as it stands today, and that’s why I’m saying this for the purposes of the record. The Appellate Court might say that my hands are not tied, but I think they are. . . . [E]ven accepting in part the testimony of Dr. Diamond, I still feel that this man is guilty of second degree murder.”
In reply to defense counsel’s assertion that “There is not one scintilla of malice,” the court said, “it all depends on how you view it. . . . Some other person or another Judge, might say, ‘Malice, why, it’s full of it. He planned it. He said he was going to do it, he went home, he had an hour. ’ ’ ’
Again defense counsel asked, “Does your Honor feel that there is malice here?” The court replied, “there was some intent. Now, whether you have free will or not free will, that’s so advanced, we’re not prepared for that . . . There’s plenty, plenty of malice as far as statements are concerned, and plenty of malice as far as actions are concerned. Now, whether he was compelled to do this because of some mental condition, that is so advanced and so far from us that we don’t under
Dr. Diamond’s testimony was properly received in accord with the holding of People v. Wells (1949), 33 Cal.2d 330 , 346-357 [ 202 P.2d 53 ], that on the trial of the issues raised by a plea of not guilty to a charge of a crime which requires proof of a specific mental state, competent evidence that because of mental abnormality not amounting to legal insanity[5] defendant did not possess the essential specific mental state is admissible. The admission of testimony such as that of the expert here, for the purpose of consideration by the trier of fact upon issues of particular essential mental state, does not, as it has been suggested, imply acceptance (on the general issue) of the defense of irresistible impulse (which is rejected in this state as a test of the defense of legal insanity; see 25 Cal.Jur.2d, Homicide, § 254; 14 Cal. Jur.2d, Criminal Law, § 218) nor does it imply rejection of the criminal law’s postulate of free will. It has been said (in People v. Hoin (1882), 62 Cal. 120 , 123 [ 45 Am.Rep. 651 ]) that “Whatever may be the abstract truth, the law has never recognized an impulse as uncontrollable which yet leaves the reasoning powers—including the capacity to appreciate the nature and quality of the particular act—unaffected
5 I.e., insanity measured by the familiar test restated in M’Naughton’s Case (1843), 10 Clark & Fin. 200, 8 Eng. Rep. 718, and long accepted in this state (People v. Coffman (1864), 24 Cal. 230 , 235; People v. Wells, supra, pp. 350, 351 [20] of 33 Cal.2d) : that at the time defendant committed the act, he was laboring under such a defect of reason, from disease of the mind, that he did not know the nature and quality of his act or, if he did know it, that he did not know that he was doing what was wrong. We have recently had occasion to say that, if this test is to be changed, arguments for such change should be addressed to the Legislature rather than the court. (People v. Berry (1955), 44 Cal.2d 426 , 433 [3] [ 282 P.2d 861 ]; People v. Daugherty (1953), 40 Cal.2d 876 , 894 [ 256 P.2d 911 ].) The conclusion that the courts should not initiate a new definition or test of the insanity which absolves legal responsibility for any crime is supported by the circumstance that the Legislature, when it enacted the rather unusual procedure for determination of the issue of such insanity at a stage of the proceedings separate from the proceedings at which the other issues are tried (Stats. 1927, eh. 677, Pen. Code, §§ 1016, 1017, 1020, 1026) did not suggest any change in the McNaghten test. (Cole v. Rush (1955), 45 Cal.2d 345 , 355 [8-9] [ 289 P.2d 450 , 54 A.L.R.2d 1137 ] [the Legislature is presumed to have known of domestic judicial decisions and to have enacted and amended statutes in the light of such decisions as have a direct bearing on them; failure of the Legislature to change the law in a particular respect when the subject is before it and changes in other respects are made indicates an intent to leave the law as it stands in the aspects not amended].)
Such expert evidence, like evidence of unconsciousness resulting from voluntary intoxication, is received not as a “complete defense” negating capacity to commit any crime but as a “partial defense” negating specific mental state essential to a particular crime. In People v. Baker (1954), 42 Cal.2d 550 , 575 [17] [ 268 P.2d 705 ], this court pointed out that “Unconsciousness is a complete, not a partial, defense to a criminal charge (Pen. Code, §26, subd. 5),[[6] ] and, although voluntary intoxication may at times amount to unconsciousness, yet it can only have the effect of negating specific intent, the applicable code section being section 22[[7] ] and not 26, subdivision 5.” People v. Sanches (1950), 35 Cal.2d 522 , 531 [6] [ 219 P.2d 9 ], recognizes that the voluntary intoxication relied on as a partial defense to negate specific intent may in fact be sufficient to destroy volition. And People v. Harris (1866), 29 Cal. 678 , 681-684 (described by the code commissioners as “a correct and authoritative exposition of [Pen. Code] See. 20; [[8] ] see, also, See. 22,” in their note at the time (1872) when the Legislature codified the rules
6 Pen. Code, §26, subd. 5: “All persons are capable of committing crimes except those belonging to the following classes: . . . Five. Persons who committed the act charged without being conscious thereof. ’ ’
7 Pen. Code, §22: “Ho act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition. But whenever the actual existence of any particular purpose, motive, or intent is a necessary element to constitute any particular species or degree of crime, the jury may take into consideration the fact that the accused was intoxicated at the time, in determining the purpose, motive, or intent with which he committed the act.”
8 Pen. Code, § 20: “In every crime or public offense there must exist a union, or joint operation of act and intent, or criminal negligence.”
It should be noted that there are certain other peculiarities, arising out of statutory language, in connection with the meaning and proof of the mental states requisite to criminal homicide. With reference to the general intent referred to in section 20 of the Penal Code (quoted ante, footnote 8), section 21 says, “The intent or intention is manifested by the circumstances connected with the offense, and the sound mind and discretion of the accused. All persons are of sound mind who are neither idiots nor lunatics, nor affected with insanity. ” Section 21 is of little aid in appraising either general or specific intent. A person may objectively manifest discretion (“Power of free decision”; Webster’s New Inter
9 It has been said that ' Imbecility is no defense against crime unless its existence deprives the individual of the power to distinguish between right and wrong.” (People v. Keyes (1918), 178 Cal. 794 , 801 [ 175 P. 6 ].)
10 An idiot is one afflicted with idiocy, and idiocy is ‘ ‘ Extreme deficiency in intelligence, commonly due to incomplete or abnormal development of the brain. The deficiency is usually congenital or due to arrest of development following disease or injury in early childhood.” A lunatic generally is "A person affected with lunacy; an insane person, orig. one who had lucid intervals; a madman; a person of unsound mind” and, in relation to law, “A person whose abnormal mental condition renders him incapable or irresponsible before the law.” Lunacy is “a. Orig., a kind of insanity interrupted by lucid intervals, formerly supposed to be influenced by the changes of the moon. b. Later, any form of insanity, e. Now, chiefly in legal usage, insanity amounting to lack of capacity or of responsibility in the eyes of the law.” (Webster’s New Internat. Diet. (2d ed., 1958).)
As used in relation to the “malice aforethought” essential to murder, section 188 of the Penal Code declares that “Such malice [see definition of murder in Pen. Code, § 187] may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow-creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.”[11] The context of the word “malice” in the statutes specifically relating to homicide shows that the word there means “something more than the word imports as defined in section 7.” (People v. Waysman (1905), 1 Cal.App. 246 , 248 [ 81 P. 1087 ]; People v. Chavez (1951), 37 Cal.2d 656 , 666 [3] [ 234 P.2d 632 ] [sec
11 We need not now undertake the task of formulating an inclusive or comprehensive definition of the malice aforethought which distinguishes murder from manslaughter. The difficulty of such task has been often pointed out. (See People v. Holt (1944), 25 Cal.2d 59 , 83, 85 [ 153 P.2d 21 ]; People v. Miceli (1951), 101 Cal.A.pp.2d 643, 650 [ 226 P.2d 14 ]; Pike, What is Second Degree Murder in California (1936), 9 So.Cal.L.Rev. 112; Perkins, A Reexamination of Malice Aforethought (1934), 43 Yale L. Jour. 537.) It lias been said that ‘‘Malice aforethought is a term ordinarily used in connection with the felonious killing which is murder to designate it from manslaughter. The words do not imply deliberation or the lapse of considerable time between the malicious intent to take life and its actual execution, but rather denote purpose and design in contradistinction to accident and mischance. (See Bouvier’s Law Dictionary, vol. 2, p. 2068.) ” (People v. McNabb (1935), 3 Cal.2d 441 , 456 [8] [ 45 P.2d 334 ]; People v. Wells (1949), supra, 33 Cal.2d 330 , 338 [5].) But this is not a sufficiently complete definition or test, for (a) voluntary and some kinds of involuntary manslaughter may in fact be committed with purpose and design, yet the law removes malice aforethought from all forms of manslaughter (see People v. Bender (1945), 27 Cal.2d 164 , 181 [14] [ 163 P.2d 8 ]; People v. Bolt (1944), supra, 25 Cal.2d 59 , 85); (b) “Persons who committed the act or made the omission charged through misfortune or by accident, when it appears that there was no evil design, intention, or culpable negligence, ’ ’ have no capacity to commit crime (Pen. Code, § 26, subd. 6) and homicide “committed by accident and misfortune” is, in the circumstances described in section 195 of the Penal Code, “excusable.”
Section 1962 of the Code of Civil Procedure declares that “A malicious and guilty intent” is conclusively presumed “from the deliberate commission of an unlawful act, for the purpose of injuring another.” This “conclusive presumption” has little meaning, either as a rule of substantive law or as a rule of evidence, for the facts of deliberation and purpose which must be established to bring the presumption into operation are just as subjective as the presumed fact of malicious and guilty intent.
A further problem arises as to whether evidence of defendant’s abnormal mental or physical condition (whether caused by intoxication, by trauma, or by disease, but not amounting to legal insanity or unconsciousness) can be considered to rebut malice aforethought and intent to kill in a case such as the one at bar, where the prosecution evidence shows infliction of a mortal wound for the purpose of killing and the evidence does not show provocation which would meet the law’s definition of voluntary manslaughter, an unlawful killing upon a sudden quarrel or in a heat of passion such as would naturally be aroused in the mind of an ordinary reasonable person under the circumstances (People v. Valentine (1946), 28 Cal.2d 121 , 137 [14], 139 [ 169 P.2d 1 ]). In such a ease the question whether the intent to kill was formed as the result of deliberation and premeditation can be answered by evidence that the particular defendant, because of impairment of his mental ability by intoxication, injury, or disease, could not and therefore did not deliberate, as well as by evidence of objective circumstances, but the question whether defendant was guilty of murder or manslaughter is traditionally answered on the basis of the objective (reasonable man) standard of the provocation which, by rule of law, removes malice aforethought (even though it may in fact exist) from manslaughter. (See Wcihofen and Overholser, Mental Disorder Affecting the Degree of a Crime (1947), 56 Tale L. Jour. 959, 969.) So it has been held that voluntary intoxication, although it can be considered on the question of the degree of murder, cannot be considered on the question whether defendant is guilty of murder or manslaughter. (Peo ple v. Keyes (1918), supra, 178 Cal. 794 , 797; People v. Methever (1901), 132 Cal. 326 , 332 [ 64 P. 481 ] ; People v. Vincent (1892), 95 Cal. 425 , 428 [ 30 P. 581 ]; People
These last cited eases appear mistaken in view of the following rules: Section 22 of the Penal Code says that “whenever the actual existence of any particular purpose, motive, or intent is a necessary element to constitute any particular species or degree of crime, the jury may take into consideration the fact that the accused was intoxicated at the time, in determining the purpose, motive, or intent with which he committed the act.” (Italics added.) The section refers to any “species” (kind) of crime as well as to any “degree” of crime. The state of mind known as “malice aforethought” comes within the meaning of the phrase “any particular purpose, motive, or intent.” (See People v. Baker (1954), supra, 42 Cal.2d 550 , 568, 571 [referring, in regard to murder, to “the intent involved in the elements of malice aforethought, premeditation, and deliberation,” “the ‘intent’ necessary to constitute malice aforethought”] ; People v. Wells (1949), supra, 33 Cal.2d 330 , 343 [9] [referring to “the specific intent or motive amounting to malice aforethought” in the crime of violating Pen. Code, § 4500, which provides that certain kinds of assault committed by life-term prisoners “with malice aforethought” are capital offenses].) “Malice aforethought” is a “necessary [statutorily prescribed] element” of both degrees of murder (“Murder is the unlawful killing of a human being, with malice aforethought”; Pen. Code, § 187). Specific intent to kill is not a “necessary [statutorily prescribed] element” of second degree murder but is a necessary element of the kind of first degree murder which we are here considering (a “willful, deliberate, and premeditated killing”; Pen. Code, § 189) and is implicit in the statutory description of the kind of manslaughter which we are here discussing (“the
It would seem elementary that a plea of not guilty to a charge of murder puts in'issue the existence of the particular mental states which are essential elements of the two degrees of murder and of manslaughter (a crime traditionally regarded as necessarily included in murder although in some eases the mental element of manslaughter may be more accurately described as differing from, rather than included in, the mental element of murder). Accordingly, it appears only fair and reasonable that defendant should be allowed to show that in fact, subjectively, he did not possess the mental state or states in issue.
Some cases have recognized the propriety of considering evidence of subjective mental condition for this purpose. Thus, People v. Selph (1930), 106 Cal.App. 704 , 707 [ 289 P. 918 ], in discussing the effect of evidence of voluntary intoxication in a homicide case, says that “while the insanity of the defendant is not in issue under the general plea, yet this does not preclude the introduction of evidence tending to establish the mental condition of the accused [[12] ] at the time the offense was committed for the purpose of showing a lack of criminal intent, malice or premeditation.”
In People v. Chesser (1947), 29 Cal.2d 815 , 824 [ 178 P.2d 761 , 170 A.L.E. 246] (where there was a little evidence of premeditation and no evidence of provocation), this court recognizes that defendant “may have been so deeply under the influence of intoxicating liquor that he was incapable of forming in his mind that malice aforethought which is an essential element of the crime of murder in either degree.” Also, in the following cases of apparently intended unlawful killings where there was no evidence of provocation sufficient to arouse the passion of the ordinarily reasonable man, the court mentions without disapproval instructions which would permit the jury to find manslaughter because of evidence of intoxication: People v. Tuthill (1947), 31 Cal.2d 92 , 103 [ 187 P.2d 16 ] ; People v. Burkhart (1931), 211 Cal. 726 , 733 [7] [ 297 P. 11 ]; People v. Yeager (1924), 194 Cal. 452 , 474 [8] [ 229 P. 40 ], (See also People v. Gomez (1953), 41 Cal.2d 150 , 164-165 [15] [ 258 P.2d 825 ], where there was evidence of mental abnormality; of. People v. Danielly (1949), 33 Cal.2d 362 ,
12 This must be understood to mean mental condition other than legal sanity or insanity. (People v. Wells (1949), supra, 33 Cal.2d 330 , 350 [14b].)
Defendant and amici curiae urge that in the present case statements of the trial court affirmatively show that it believed the expert testimony that defendant, because of the concurrence of mental disease and the objective circumstances with which he was confronted, in fact lacked intent to kill and malice aforethought, yet erroneously concluded that the law required it to find that those elements were present. Defendant would attribute to selected portions of the trial court’s remarks[13] the force of findings of fact and conclusions of law. But those remarks when read as a whole (see ante, pp. 725-726) set forth reflections and reasoning pro and con, matters which tend to support the judgment and matters which tend to suggest a contrary conclusion, but all proper to be considered by the fair, impartial, conscientious, and able judge in resolving the several issues and reaching his ultimate conclusion.
In accord with the normal process of appellate review, we accept those statements which support the judgment as representing the court’s final determinations, and interpret favorable to the judgment those statements which are susceptible of such interpretation. (See People v. Jennings (1959), 158 Cal.App.2d 159 , 167 [6] [ 322 P.2d 19 ].) When the statements are so viewed, it is apparent that this is a case where the trial court considered all the conflicting evidence and resolved it in support of its judgment, not a case where the trial court admitted evidence but because of a misappre
13 '< [I]n all probability [Dr. Diamond’s] theories are correct . . . that [defendant] had no particular intent to commit this crime . . ., but I have a feeling that you are too advanced. . . . [I]t seems to me that my hands are tied with the legal jurisprudence as it stands today.”
The trial court’s informally expressed opinion was that defendant’s threats and actions evidenced intent to kill and malice aforethought, but that “whether he was compelled to do this because of some mental condition, that is so advanced and so far from us that we don’t understand it.” A fair interpretation of the quoted statement is, not that the expert testimony was as a matter of law incomprehensible or unacceptable to the court as a finder of fact or as a judge of the law, but rather that the court as a trier of fact did not have a reasonable doubt that this particular defendant, when he killed, lacked intent to kill and malice aforethought. This interpretation of the quoted statement is borne out by the trial court’s further statement that “it would be a perfect first degree [murder] if it wasn’t for the fact that he’s never been in trouble and because of the statement of the Psychiatrist”; from this statement of the court it affirmatively appears that the implied finding of lack of deliberation and premeditation was based in part upon acceptance of the doctor’s testimony.
Thus it is apparent that whatever the trial judge may have had in mind when he stated in the course of his pro and eon deliberations that “I like to be advanced. But it seems to me that my hands are tied with the legal jurisprudence as it stands today,” he did in truth finally decide that his fact finding hands were not tied; he must have so concluded because he received, considered and gave effect to the expert’s testimony on the issues to which it was pertinent. Some of those issues he resolved in favor of the prosecution (he found the defendant guilty of murder), but others he determined in favor of the defendant (he found that the murder was not of the first degree). In other words, within the area of culpability for the crime charged the testimony of the expert apparrently created a reasonable doubt that the homicide was murder of the first degree but not that it was murder. The differences between the degrees of murder and between murder and voluntary manslaughter have been carefully spelled out in People v. Bender (1945), supra, 27 Cal.2d 164 , 180-182 [13-17] (see also People v. Caldwell (1955), 43 Cal.2d 864 , 869 [3-5] [ 279 P.2d 539 ] ; People v. Byrd (1954), 42 Cal.2d 200 , 212 [16] [ 266 P.2d 505 ] ; People v. Deloney (1953), 41
For the reasons above stated, the judgment is affirmed.
Gibson, C. J., Traynor, J., and McComb, J., concurred.
Spence, J., concurred in the judgment.
Cases cited
- People v. Wells 33 Cal.2d 330 at 346-357, at 343 p. 726, p. 732
- People v. Hoin 62 Cal. 120 at 123 p. 726
- People v. Stein 23 Cal. App. 108 at 115-116 p. 727
- People v. Baker 42 Cal.2d 550 at 575, at 568, 569, at 568, 571 p. 727, p. 729, p. 732
- People v. Sanchez 35 Cal.2d 522 at 531 p. 727
- People v. Harris 29 Cal. 678 at 681-684 p. 727
- People v. Waysman 1 Cal.App. 246 at 248 p. 730
- People v. Chavez 37 Cal.2d 656 at 666 p. 730
- People v. Valentine 28 Cal.2d 121 at 137, at 131-132 p. 731, p. 736
- People v. Keyes 178 Cal. 794 at 797 p. 731
- People v. Methever 132 Cal. 326 at 332 p. 731
- People v. Vincent 95 Cal. 425 at 428 p. 731
- People v. Jones 63 Cal. 168 at 169 p. 732
- People v. De La Cour Soto 63 Cal. 165 p. 732
- People v. Langton 67 Cal. 427 at 428 p. 732
- People v. Ferris 55 Cal. 588 at 592 p. 732
- People v. Williams 43 Cal. 344 at 345-346, 352 p. 732
- People v. Lewis 36 Cal. 531 at 532 p. 732
- People v. Nichol 34 Cal. 211 at 215-216, 217 p. 732
- People v. Belencia 21 Cal. 544 at 547 p. 732
- People v. Hopper 42 Cal.App. 499 at 503 p. 732
- People v. Miller 114 Cal. 10 at 13 p. 732
- People v. Selph 106 Cal.App. 704 at 707 p. 733
- People v. Chesser 29 Cal.2d 815 at 824 p. 733
- People v. Tuthill 31 Cal.2d 92 at 103 p. 733
- People v. Burkhart 211 Cal. 726 at 733 p. 733
- People v. Yeager 194 Cal. 452 at 474 p. 733
- People v. Gomez 41 Cal.2d 150 at 164-165 p. 733
- People v. Danielly 33 Cal.2d 362 p. 733
- People v. Jennings 158 Cal.App.2d 159 at 167 p. 734
- Smith v. Fetterhoff 140 Cal.App.2d 471 at 473 p. 735
- People v. Bender 27 Cal.2d 164 at 180-182 p. 735
- People v. Caldwell 43 Cal.2d 864 at 869 p. 735
- People v. Byrd 42 Cal.2d 200 at 212 p. 735
- People v. Daugherty 40 Cal.2d 876 at 901 p. 736
- People v. Carmen 36 Cal.2d 768 at 777-778 p. 736
- People v. Cornett 33 Cal.2d 33 at 40 p. 736
- People v. Honeycutt 29 Cal.2d 52 at 60-61 p. 736
- People v. Thomas 25 Cal.2d 880 at 898-901 p. 736
- People v. Holt 25 Cal.2d 59 at 84-87 p. 736