Harris

Defendant was convicted of murder, second degree (Pen. Code, § 187) and he appeals from the jury verdict. He asserts that the trial judge committed reversible error in failing on its own motion to instruct the jury on the defense of diminished capacity by reason of intoxication, and that the prosecutor was guilty of prejudicial misconduct during cross-examination of defense witnesses.

The sufficiency of the evidence to support the finding of guilt is not challenged, and the facts may be briefly stated. Defendant shot and killed Hazel Jean Caddell, his estranged mistress, after having failed to effect a reconciliation. He testified that the victim took a gun from the glove compartment of his car and went behind a building; he tried to take the gun from her and it accidentally discharged twice. The victim’s mother, Annabell Cad-dell, heard them argue and saw defendant run after her daughter while reaching into his right hip pocket. She followed, heard a shot before she rounded the building, saw defendant fire the second shot when he was about “three steps” behind the fleeing victim, and saw her daughter fall to the ground.

A police officer testified the gun was a .38…